It is difficult to initiate the initiated. The task given to me by this august group is daunting more so because all aspects of the subject have to be compressed in a short lecture.

Some questions are obvious. What is a legislature? How does it function? What is the public perception of its efficacy? What correctives are feasible to improve its performance?

The human being is a social animal and lives in collectives or societies. All through history, societies have sought to organize themselves to make rules for facilitating living together. This is the origin of the state; it originates in bare needs of life and continues for better life. This rule-making is called legislation and can be made by an individual, a selective or a collective, representative or less so of the society.

We attained freedom from the British rule in 1947, drafted a Constitution and gave ourselves a democratic and parliamentary form of government. Underlying the constitutional scheme is the concept of the Rule of Law defined as absolute supremacy of regular law, equality before the law, and access to justice through judiciary. Its objective, as Prof. Upendra Baxi put it, is to make power accountable, governance just and state ethical.

The Constitution described India as a Union of States. The word ‘federation’ is not used in the text. Political vocabulary and juridical pronouncements now use the expression cooperative federalism.

Democracy is given shape through elected representatives. These constitute the legislature. Since ours is a federal structure, the legislatures took shape through Articles 79 and 168 respectively and more recently through the 73rd and 74th Amendments.

The Parliament consists of the President of India and the Rajya Sabha and the Lok Sabha. In the states, the law-making body consists of the Governor and the legislature, some of whom are bicameral, others not. The Parliament is neither sovereign nor supreme. Its authority and jurisdiction is limited by the distribution of legislative powers between Union and the States, as per Articles 245-246, and the three Lists of the Seventh Schedule

Article 326 states that elections would be on the basis of adult suffrage and the first-past-the-post (FPTP) system. The Constitution prescribes the qualifications for candidates seeking elections. The duration of Lok Sabha and of the Vidhan Sabahas is five years, unless dissolved earlier. The membership of the Rajya Sabha and the Legislative Councils in states is for six years with one-third retiring every two years.

In regard to FPTP, it is to be noted that despite growing public participation over the years, the percentage of votes cast in the 2009 general election was 56.9 and in 2014 it was 66.4. In 2009, 94 or 17.3% elected Members secured more than 50 % of the votes cast; in 2014 this figure was 206 or 37.9%. In a multiparty system, the trend is likely to vary with changes in political climate. Nevertheless, a good percentage of elected Lok Sabha members would remain only partially representative of their constituents. This, in a highly complex and diverse society like ours could and does have implications for the representation of the weakest segment in terms of policy outcomes, societal outcomes, political outcomes and even in matters like the allocations out of MPLAD funds.

The question of modifications in the system to make it better reflective of voter preferences has been examined from time to time. The Law Commission Report No. 255 of 2015 reviewed the relative merits of proportional representation (being more representative) and of the FPTP (being more stable) and concluded that any changes in our system ‘will have to follow a hybrid system combining elements of both direct and indirect elections.’ It recommended that the suggestions in its Report No. 170 of 1999 be examined to see if its proposals are workable. This has made no headway.

The functions of Union and of state legislatures are four-fold: legislation, passing the budget, accountability of the executive through Questions and other procedures, and discussions of matters of public interest and concern. Each of these functions is performed through a set of rules of procedures.

How often do the legislatures meet to transact business? No time limit is prescribed (Articles 85 and 174) except that there shall not be an interval of six months between two sittings. The date and duration of sessions is determined by the executive and it has been rightly observed that ‘the government can decide the number of days for which its accountability body meets.’ Efforts to have an annual calendar have been to no avail, perhaps because of the unstated primacy accorded to the astrologer!

In 1953 the Lok Sabha had 137 sittings and Rajya Sabha 100. The average for the Lok Sabha for the 1950s was 127, and in successive decades was 116, 100, 95, 76, and 72. In the years 2011-2017, it was 68. The corresponding numbers for the Rajya Sabha were marginally lower except in recent years. In other words, only about 50 percent of the time devoted earlier is now being given to parliament for transaction of its business.

This is a fair index of its creeping dis-functionality.

The situation is worse in state assemblies who, under List II of the Seventh Schedule of the Constitution, have exclusive legislative competence on 66 subjects. The 2011–2016 average for assembly sittings was 46 each for Kerala and Madhya Pradesh, 45 for Maharashtra, 42 for Odisha, 37 for Bihar, 31for Gujarat, 25 for Uttar Pradesh, 24 for West Bengal, and 16 for Haryana. The seriousness of approach is evident and in no need of commentary!

Proposals for legislation generally emanate from the government and occasionally as Private Member bills. Notice for both has to be given as per rules. They become law when approved by both Houses (except in the case of Money Bills) and receive the assent of the President who under Article 111 can return it once only (except Money bills) for reconsideration or amendment.

Given the diversity of their collective knowledge and experience, prudence would suggest careful deliberation to ensure that the proposed legislation is within the ambit of the Constitution and does not have unintended consequences for any segment of the public. This is not always so. In addition, there is a time-disjuncture in law-making and the framing of rules to implement them. The Committee on Subordinate Legislation responsible for ensuring that this does not happen has been found to be tardy in the discharge of its mandate.

How seriously does the Parliament discharge its legislative responsibilities? The abridgement of total time available is reflected in time allocated for discussing legislative proposals. A report in the Times of India of December 11, 2017 indicated that in the last ten years, 47 percent of the bills were passed without discussion and of these, 24 percent were not even referred to a parliamentary committee. As a result, the totality of knowledge and experience available in the House is not availed of.

Apart from the committees in each House on petitions, privileges, ethics, Government assurances, and housekeeping, the system of Department-Related Standing Committees was introduced in parliament in 1993 to make accountability of the executive more thorough going and in general to tone up the functioning of the institution. These number 24, 8 with the Rajya Sabha and 16 with Lok Sabha. Work in these committees is substantive and generally non-partisan; active participation, however, is limited to a small number of Members. These are not binding on the executive. However, even the practice of referring legislative proposals to Standing Committees is being disregarded frequently.

An important aspect of the parliamentary system is that it ensures continuous accountability of the executive as against a periodic one in a presidential system. This accountability is undertaken through (a) Questions (b) debates on Motions of Thanks (c) No-Confidence motions (d) Adjournment Motions (e) Resolutions and (f) discussions on reports of Standing Committees. The rules of procedure of the Rajya Sabha and lok Sabha spell out the modalities by which this is to be undertaken.

A critical question pertains to time availability. Apart from the overall reduction due to shorter sessions, the device of calibrated disruption in what even eminent leaders have called ‘a parliamentary tactic’ takes its toll. This is in callous disregard of parliamentary procedures. Its principal victim is the Question Hour. Data on time lost is available and does no credit to our system. The live telecast of proceedings has unfortunately become an incentive to it. It has also generated the practice of ‘legislation in the din’ which is a mockery of parliamentary and democratic procedures and is in contravention of the unanimous Resolutions adopted in both Houses in 1997 on the occasion of the golden Jubilee of Independence and reiterated on several occasions subsequently.

The overall result of this state of affairs is a general decline in parliament’s functioning and a growing public perception that it has become irrelevant. The existing rules for bringing about order and discipline, made in an earlier period, are no longer capable of producing the desired results since disruptors or their supporters openly proclaim that they would not allow the Chair to enforce them by appropriate instruments at its disposal.

A number of correctives, procedural and substantive, have been suggested from time to time. Allow me to mention a few:

• • The duration of sessions should be extended and the annual number of working days should be raised, as before, to above 100. This in fact was recommended by a conference of Presiding Officers, Leaders and Chief Whips in 2001.
• • There should be calendar of parliamentary sittings, giving dates of commencement and conclusion of its three sessions. This would facilitate planning of schedules by ministers and Members.
• • The Treasury Benches should also be made more receptive to demands for discussions on serious issues and should concede these without procrastination and wastage of time. Similarly, more sympathetic consideration should be given to Private Member’ bills and Resolutions.
• • Issues that fall squarely within the jurisdiction of States and state legislatures should not normally be raised in Parliament unless they pertain to a happening of an abnormal nature. This should be confined to the Zero Hour whose functioning should be regulated on the lines attempted – with some but not total success – in the Rajya Sabha.

In conclusion, it has to be said that the gap between profession of adherence to parliamentary norms and the actual behaviour of parliamentarians has reached dangerous levels and is in dire need of correctives. These lie in a genuine commitment by Members and party leaders to allow the institution to function. Correctives can and must be explored but chakka jam is not an alternative and would endanger the system itself.

Decades earlier, Dr. Ambedkar had opined that the working of the constitutional institutions would depend on the people and the political parties operating them. He had listed seven conditions for as essential for successful functioning of democracy: (a) no glaring inequalities in society (b) strong opposition (c) no tyranny of the majority over minority (d) equality in law and administration (e) observance of constitutional morality (f) functioning of moral order in society (g) public conscience.

This audience, having observed at close quarters different aspects of the polity, is in a good position to assess the validity of Ambedkar’s dicta. Attention in particular needs to be given to the last three that relate to the individual and collective public behaviour of our representatives who much too often resort to what Edmund Burke called ‘craft and credulity’ that stifle reason.
How long can a society that professes to seek accountability from elected representatives live with this dichotomous behaviour?
Jai Hind.