ROLE OF LEGISLATURE AND WHY ITS IMPORTANCE IS SHRINKING (PERFORMANCE ANALYSIS)
Author: Sanjana Shikhar, II year of B.A.,LL.B.(Hons.) from Faculty of Law, Banaras Hindu University
Of the three organs of the government, the place of primacy belongs to the Legislature. The legislative role of government is followed by the enforcement and adjudication responsibilities. As a result, the legislature is the government's primary branch.
The legislature is the branch of government responsible for enacting the country's legislation. It is the agency in charge of formulating the state's will and endowing it with legal authority and force. Simply said, the legislature is the branch of government that creates laws. In every democratic state, the legislature has a unique and vital role.
However, empirical and inductive investigations have proven beyond a shadow of a doubt that the Legislature's function in lawmaking is merely ceremonial. The executive government's policy-making furnace shapes the stuff of law, the substance of legislation.
ROLE OF LEGISLATURE AND WHY ITS IMPORTANCE IS SHRINKING
There was a time when everyone assumed that the legislature was the one who made the laws. This could have been the case in the peaceful days of the nineteenth century. However, empirical and inductive investigations have proven beyond a shadow of a doubt that the Legislature's function in lawmaking is merely ceremonial. The executive government's policy-making furnace shapes the stuff of law, the substance of legislation. The main job of the legislature today is to control and supervise administration, and the following pages seek to evaluate this aspect of the problem. Legislative control by itself is a very important role in the context of the State emerging as an Administrative Leviathan, thus incidentally endangering the basic human freedoms.
But Legislatures under modern democracies are modeled more or less on the lines of the British Parliament. The British Parliament, because of its long and continued history, 'is not only the mother of Parliaments', says Ivor Jennings, 'but their preceptor'. Other nations have had their indigenous representative systems, but they have all been abandoned or profoundly modified under the influence of British ideas.' [i]
THE DECLINE OF LAW-MAKING POWER OF THE MODERN LEGISLATURE
Under the parliamentary system, the primary purpose of the legislature is to accomplish overall national progress and to meet the needs and aspirations of the people. People's needs and aspirations vary, and the Legislature, like all other institutions, is adaptable: It is possibly the most dynamic of all the institutions that are profoundly concerned with human happiness. It has undergone changes and vicissitudes over time in accordance with changing values, attitudes, obligations, or compulsions. The most essential, but least noticed, of these is its dwindling legislative influence.
The organizations, groups, and other entities involved in the legislative process and functioning as sources of legislative policy tend to demonstrate that the legislature has relatively little impact in the actual legislative process. As is well known, policymaking is no longer a legislative function. Due to the intricacy of the processes as well as its unwieldiness, the Legislature is inadequate to this role. A current investigation is being conducted into the circumstances that have contributed to the Legislature's downfall as a law-making body, both directly and indirectly.
Initially, there was no practice of ceding legislative power to the executive, as previously stated. Laws were enacted by parliament alone. The Legislature's institutional incapacity to deal with modern societal situations and demands led to techniques of delegating legislative power to the executive, which gradually led to the erosion of legislative power, especially in the absence of effective safeguards against probable abuse of power.[ii]The assertions that legislative review of delegated legislation asserts the Legislature's power are unfounded, because the current level of inspection is woefully inadequate.
Prof. A. T. Markose, summarizes the inadequacy of the control of delegated legislation in India: “Apart from the Parliamentary Committee on Subordinate Legislation and typically extremely vague common provisions in the Parent Act for "putting on the table," the only universal safeguard against possible misuse of authority is found in the good old General Clause Act.”[iii]
Apart from the direct delegation of legislative power to the executive, legislative power was also transferred indirectly to the executive. There are a growing number of bills that are entirely produced by executive departments and routed through the cabinet. In such instances, the executive enjoys a practical monopoly on legislative initiative and is actively engaged in productive legislative action.
Sometimes even judiciary starts encroaching into legislative powers. "Courts cannot create rights where none exist, nor can they continue to make decrees that are impossible of enforcement or that violate other laws or settled legal principles," Justice Katju said in 2007.
“To ensure that judicial activism does not devolve into judicial adventurism, courts must exercise care and restraint. It's important to remember that the courts can't run the government. The judiciary should simply serve as a warning system, ensuring that the executive is awake and ready to discharge its tasks."[iv]
STATUS OF PRIVATE MEMBER
The private members' time has been encroached upon by the executive. In this connection, it is worth noting that in England important parliamentary debates in the past took place through the motions moved by private members like Mr. Fox, Mr. Burke, Mr. Whitbread, Mr. Brougham and others. Now the executive has full control of the business arrangements on the floor of the house.[v]
The following table based on the data collected from the Secretariat of the Kerala Legislature reveals the insignificant position of private members' bills vis-a-vis Government bills in the State Legislature.
Whilst, therefore, the prestige and power of the private members are on the decrease, the status and importance of the executive in the field of legislation are correspondingly on the increase.
Based on the number of days assemblies sat in the last five years, a recent PRS Legislative Research concluded that MLAs in India work an average of just 28 days each year. MLAs performed best in Karnataka and Kerala, while the worst in the main states were Uttar Pradesh, Rajasthan, and Haryana. Smaller states, such as Delhi and Nagaland, fared far worse, with legislative sessions lasting only 10-20 days per year. Even the best-performing states had only 46 days of attendance. Members of Parliament did better than MLAs. On average, Lok Sabha members attend the House for 70 days and Rajya Sabha MPs for 69 days per year. MPs and MLAs were likewise underrepresented in debates and discussions.[i]Even when they were in the House, many of them were merely onlookers. A large number of them just went there to sign their attendance sheets. In the first Lok Sabha, there were 150 sittings in a single year. Since then, the number of sittings and MPs' attendance has steadily decreased. Bills and even budgets are passed with little or no debate. The quality of debates has worsened, as have politicians' norms of conduct. The legislature's weakening and decrease in functioning are unsettling indicators. They are evidence of the parliamentary system's general decline and deterioration.[ii]
The cumulative effect of the numerous cases analyzed demonstrates that popular belief in the Legislature as the supreme law-making body is erroneous. It is also maintained that the fundamental duty of the legislature is not to make legislation. While legislation is unquestionably important, the Legislature's time is not exclusively committed to legislative work. According to the research, the Legislature spends a large percentage of its time on the equally important duty of administrative monitoring and control.
Due to the demands and pulls of the period, the executive's breadth and scope of tasks and functions has significantly expanded. The Legislature is fundamentally incapable of approving the executive's performance of a wide variety of technical and complex responsibilities without prior consent. Even if it were possible, it would be incompatible with the capabilities of the modern administrative state to operate rapidly and efficiently. Given the new environment of extensive executive powers, as well as the fact that the executive is given vast amounts of public funds and serves, protects, and regulates the country's affairs in a significant way, it has become necessary for the democratic Legislature to oversee and manage administrative responsibilities.
ILLUSIONARY PARLIAMENTARY CONTROL OVER ADMINISTRATION
In India, parliamentary authority over governance and administration is largely theoretical. In reality, the control is not as effective as it ought to be. The following factors are accountable for this:
1) The Parliament does not have the time or expertise to oversee an administration that has increased in both volume and complexity.
2) The technical nature of grant requests makes financial control difficult for Parliament. Because the parliamentarians are laypeople, they are unable to completely comprehend them.
3) The Executive has legislative authority and plays a substantial role in policy formulation.
4) The Parliament is simply too big and unmanageable to be functional.
5) The Executive's majority backing in Parliament restricts the likelihood of effective criticism.
6) After the Executive has incurred public expenditures, financial committees such as the Public Accounts Committee analyze them. As a result, they perform post-mortem work.
7) The use of the "guillotine" became more common, limiting the extent of financial supervision.
8) The rise of "delegated legislation" has limited Parliament's involvement in enacting comprehensive legislation while increasing bureaucratic power.
9) The president's frequent issuing of decrees dilutes Parliament's legislative power.
10) Parliamentary control is sporadic, broad, and primarily political.
11) Lack of strong and steady opposition in the Parliament, and a setback in the parliamentary behavior and ethics, have also contributed to the ineffectiveness of legislative control over administration in India.
DECLINING SEATING OF HOUSES OF PARLIAMENT
1) The Parliamentary Budget Session ended two weeks ahead of schedule.
2) This is consistent with the last few sessions.
3) Due to the government shutdown, the 2020 Budget Session was abbreviated.
4) COVID-19 infected several Members of Parliament and Parliament personnel after a brief 18-day monsoon session was cut short after 10 days.
5) The winter session has been rescheduled at a later date.
6) As a result, in fiscal year 2020-21, the Lok Sabha sat for the shortest time ever.
7) This has implications for how new legislation is vetted in the legislature, as well as how the government operates and funds.
8) There's no reason why Parliament, like other countries, couldn't use technology and remote working solution.[iii]
PASSAGE OF IMPORTANT BILLS WITHOUT SCRUTINY
1) There were 13 Bills introduced during this session, and not a single one of them was referred to a parliamentary committee for review.12
2) The Government of the National Capital Territory of Delhi (Amendment) Bill, 2021 was passed by Parliament.
3) The Lieutenant Governor takes over control from the legislature and the Chief Minister.
4) The Mines and Minerals (Development and Regulation) Amendment Bill of 2021 modifies the Mines and Minerals Act of 1957 to remove end-use restrictions on mines and to make captive mine conditions easier.13
5) Within a week, both Houses had passed this bill.
6) The National Bank for Financing Infrastructure and Development (NaBFID) Bill, 2021 — legislation was approved to establish a new government infrastructure finance organization and to allow private companies to participate in the industry, within three days of introduction.14
7) The Insurance (Amendment) Bill, 2021, which raises FDI in insurance companies from 49 percent to 74 percent, was introduced and passed by both Houses in just one week. This session saw the introduction of 13 bills, eight of which were passed during the term.15
8) Rather than being a sign of efficiency, this speedy work should be interpreted as a symptom of Parliament's surrender of its role to scrutinize bills.
9) In addition, the percentage of Bills referred to committees has decreased from 60% in the 14th Lok Sabha (2004-09) and 71 percent in the 15th Lok Sabha, respectively, to 27% in the 16th Lok Sabha and only 11% in the present one.[iv]
MONEY BILL CLASSIFICATION ISSUE
1) The Finance Bills, over the last few years, have contained several unconnected items such as restructuring of tribunals, introduction of electoral bonds, and amendments to the foreign contribution act.
2) Some of the earlier Acts, including the Aadhaar Act and Finance Act, have been referred to a Constitution Bench of the Supreme Court.
3) It would be useful if the Court can give a clear interpretation of the definition of Money Bills and provide guide rails within which Bills have to stay to be termed as such.[v]
PASSAGE OF BUDGET WITHOUT DISCUSSION
1) The Lok Sabha is required by the Constitution to approve each department's and ministry's expenditure budget.
2) Only five ministries' budgets were slated for comprehensive discussion in the Lok Sabha, and only three of them were reviewed; 76 percent of the entire budget was approved without discussion.
3) This conduct was consistent with the previous 15 years' trend.[vi]
NO DEPUTY SPEAKER
1) Article 93 of the Constitution states that “The House of the People shall, as soon as may be, choose two members of the House to be respectively Speaker and Deputy Speaker.”[vii]
2) The absence of a Deputy Speaker is a notable aspect of the present Lok Sabha.
3) By the time of the next session of Parliament, two years would have elapsed without the election of a Deputy Speaker.
Home Minister Amit Shah in 2019, said the legislature was responsible for encroachment in its domain by the judiciary and executive. He also stated that if elected officials do not carry out their responsibilities effectively, it could jeopardize democracy's existence.
"It is sometimes blamed on the courts, and other times it is claimed that the executive does not listen. I agree that there has been encroachment, but it is the legislature's, as well as our own, fault. If we let it fall, the other part will automatically invade. It is our responsibility to improve the legislative branch. If we do not carry out our responsibilities effectively, the executive and judiciary will take control, which could jeopardize democracy's existence "Shah stated his opinion.[viii]
SOME GLOBAL EXAMPLES
1. After 16 years in power, the Justice and Development Party in Turkey has decisively established itself as the new status quo, despite opposition from the old elites and their middle- class supporters. However, rather than establishing more democratic and inclusive political rules, Turkey has experienced a democratic collapse in recent years, as well as the creation of a less rule-based government. The outcome of this political transformation has been a shift in authority from the legislature to a powerful executive, a degradation in the judiciary's independence and impartiality, and a lack of effective checks and balances.[ix]
2. After a brief one-party authoritarian regime in 1975 and 15 years of military and pseudo-civilian rule, Bangladesh adopted parliamentary democracy in 1991. By 2018, however, it had become an example of how a weakened legislative body may be used by the government to further its authoritarian agenda.[x]
3. The articles reveal various factors that diminish the power of legislatures, including institutional arrangements such as those governing elections that, in several cases, have resulted in single-party dominance (i.e., Russia, Hungary, Poland, India, and Turkey). This power has made it easier for executive leaders, such as prime ministers, cabinet ministers, and presidents, to cede power.[xi]
4. Additional factors include high levels of clientelism and corruption leading to networks of corrupt elites that dominate policy making and undermine legislative activity.
5. Another factor is the economic environment in which the legislature is attempting to formulate policy. The executive has benefited from economic crises by claiming that only the executive can deliver the single integrated response required to fix the issue.
6. Of course, some developing democracies have fared better than others in confronting the forces weighing against the effectiveness of legislative action. In Ukraine, the combination of the governmental structure, election regulations, and opposition involvement appears to be critical in sustaining the parliament's ability to pass meaningful legislation. Furthermore, while African legislatures remain weak in comparison to the administration, they are now more powerful and autonomous than they have been since independence, a few have developed into institutions of opposing power in the face of the administration.[xii]
Over the course of centuries, the functions and character of the legislative institution have changed. The fight between the Executive and the Parliament in England throughout the sixteenth and seventeenth centuries gave rise to the Legislature's ability to pass laws. The Legislature became the policymaker in the eighteenth and early nineteenth centuries. The absence of any opportunity for large-scale reform appears to be the cause for the executive's non- participation in the legislative realm at the time. Small changes in administrative law, as well as special and municipal enactments, were the extent of legislation. Laws were then made through the process of Private Bill Legislation.
With the decline of monarchical system in the nineteenth century, the responsibility of the Legislature increased. Wedded to reforms, the Legislature now realized that Private Bill Legislation was unsuitable to the voluminous legislative designs. The Public General Acts came into prominence at this stage. And legislation became a complex multistage process, permitting various forces and influences to enter into its composition. Over the course of centuries, the functions and character of the legislative institution have changed. The fight between the Executive and the Parliament in England throughout the sixteenth and seventeenth centuries gave rise to the Legislature's ability to pass laws. The Legislature became the policymaker in the eighteenth and early nineteenth centuries. The absence of any opportunity for large-scale reform appears to be the cause for the executive's non-participation in the legislative realm at the time. Small changes in administrative law, as well as special and municipal enactments, were the extent of legislation. Now the initiation of legislation has shifted from the Legislature to the executive. Legislature, no doubt, still makes law, but its effective participation in law-making process has progressively diminished.
Important legislative processes, such as the integration of interests and the legitimization of policy, are now taking place outside of the Legislature. In light of the new conditions, it is suggested that the Legislature's function in lawmaking is merely ceremonial. The main role of the Legislature, on the other hand, and one for which it is functionally ideally suited, is to supervise and control administration by voicing citizens' desires and aspirations, protecting their liberties from any encroachment or abuse by the executive, and protesting against local abuses and maladministration.
The following suggestions are submitted in this regard
1. Creating a method to assist Members of Parliament with their research.
2. Requiring that all Bills and budgets are examined by committees and public feedback is taken.
3. The Legislature's time is limited, and the amount of work that must be completed is substantial. As a result, the Legislature cannot be expected to devote the necessary time and attention to all of its responsibilities. It is a rather sad situation if the Legislature fails to complete its tasks correctly due to a lack of time, because the welfare of the people and the nation's future rely heavily on its proper functioning. More legislative sessions may be summoned to address the problem of a lack of time, according to the proposal. It is further submitted that apart from Legislature now in existence, which may be called the Main-Legislature, two sub legislatures may also be constituted by electing members simultaneously with the election of members to the Main-Legislature. The candidates to the sub-legislature should have the support of political parties. Each sub- legislature should have sub-cabinet. One of the sub-legislatures may be entrusted with matters concerning agriculture and agricultural labor and the other with industry and industrial labor. The candidates for the sub-legislatures should possess certain prescribed knowledge or experience in their respective fields.
4. The Legislature should not be reduced to a voting machine or a registration room where only heads are tallied. To that end, lawmakers should be schooled in the fundamentals of administration, if they do not already have the appropriate equipment. All lawmakers should be given the opportunity to participate in the administrative process by being assigned to as many Administrative Advisory Committees as there are departments, with Ministers presiding over their respective Departmental Advisory Committees. The Ministerial obligation to the Legislature should be preserved in this way. All matters relating to expenditure, estimates and other administrative problems concerning each department could be looked into by the respective Advisory Committee attached to each department.
[i]DECCAN HERALD, https://www.deccanherald.com/opinion/first-edit/legislature-decline-703882.html (last visited Dec. 14, 2021). [ii]Ibid. [iii]CIVILS DAILY, https://www.civilsdaily.com/news/dormant-parliament-fading-business/, (last visited Dec. 14, 2021). [iv]Ibid. [v]Ibid. [vi]Ibid. [vii]Ibid. [viii]ANI, https://in.news.yahoo.com/legislature-responsible-encroachment-executive-judiciary-dangerous- consequences-shah-172433140.html (last visited Dec. 14, 2021). [ix]Omer Faruk Gençkaya, The Grand National Assembly of Turkey: A Declinein Legislative Capacity, CAMBRIDGE UNIVERSITY PRESS (Dec. 13, 2021, 4:25 PM), https://www.cambridge.org/core/journals/ps- political-science-and-politics/article/grand-national-assembly-of-turkey-a-decline-in-legislative- capacity/9B0E5761781124208E62E9211DBE68A0. [x]AliRiaz, Legislature as a tool of hybrid regime: Bangladesh experience, CAMBRIDGE UNIVERSITY PRESS (Dec. 13, 2021, 4:48 PM), https://www.cambridge.org/core/journals/ps-political-science-and- politics/article/legislature-as-a-tool-of-the-hybrid-regime-bangladesh- experience/20AFD95F9803FE4D44A68430ACE108B9. [xi]Irina Khmelko and Charles R. Wise, Introduction: The Decline in Legislative Powers and Rise of Authoritarianism, CAMBRIDGE UNIVERSITY PRESS (Dec. 14, 2021, 4:49PM), https://www.cambridge.org/core/journals/ps-political-science-and-politics/article/introduction-the-decline-in-legislative-powers-and-rise-of-authoritarianism/096C53AA4DCEAD323898E692A04A5D23. [xii]Ibid. [i]K.B. Muhamedkutty, Changing role of legislature,n.k., n.k., 115, 116 (n.d.), http://dspace.cusat.ac.in/jspui/bitstream/123456789/11050/1/Changing Role of the Legislature.PDF. [ii]Id. at p. 129 [iii]Ibid. [iv] Simran, Legislature vesus Judiciary, PRS LEGISLATIVE RESEARCH (Dec. 13, 2021, 8:49 PM), https://www.prsindia.org/theprsblog/legislature-versus-judiciary. [v]Supra note 1 at 132.