The upcoming monsoon session of Parliament, from September 14, is emblematic of the issues faced by legislatures during the novel coronavirus pandemic. How do these bodies fulfil their central role in a democracy while maintaining health safety of legislators and the staff working in the legislatures? Several States have held very short sessions — some met just for a day — in which they ratified a number of ordinances, and hardly questioned any executive action over the last few months. Parliament will maintain physical distancing, has truncated the Zero Hour (in which members raise issues pertinent to their constituents and of wider public interest), and cancelled Question Hour (in which Ministers have to answer questions raised by members).
At the risk of stating the obvious, let us quickly recap the roles of the key organs of state. The government has the mandate to take decisions and perform various public tasks. It is accountable to the legislature which can question it, and, as an extreme step, even replace it. The legislature is accountable to citizens through regular elections and can be voted out if it is not perceived to be making laws and policies beneficial to the public. Finally, constitutional courts are expected to ensure that all actions are made within the boundaries of the Constitution and laws made by the legislature.
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The case of contact tracing
Our Parliament has allowed its role to be diluted over the last few decades. It has not questioned and monitored the activity of the executive.
One example will illustrate the contrast between the actions of the British Parliament and ours. When the idea of a contact tracing app was mooted, the United Kingdom’s joint parliamentary committee on human rights examined the proposals. In a report, “Human Rights and the Government’s Response to Covid-19: Digital Contact Tracing”, published in early May (https://bit.ly/35hS1rB), it recommended that an app could be used only if there was a specific primary legislation to enable it, and such legislation should ensure that data is collected only for the limited purpose of preventing the spread of COVID-19, prohibit sharing the data with third-parties, upload the data to a central database only if the person is tested or suspected to be positive, and limit the time for which any data was stored. The Minister would have to report every 21 days on the efficacy of contact tracing as well as data security and privacy. India, in contrast, rolled out Aarogya Setu through executive decision, and has created a grey zone on whether it is mandatory (for example, while flying, or on metro rail when operations resume next week). All this has been done without a specific legislation or any parliamentary oversight. In fact, parliamentary oversight has been largely absent through the last six months.
A slew of notifications
Parliament will be meeting after 175 days, the longest gap without intervening general elections and just short of the six-month constitutional limit. Parliamentary committees did not meet for about four months, and after that have had only in-person meetings, which have led to low attendance, given travel risks and restrictions. This is unlike many other countries where both the plenary and committees have adopted technology to enable members to participate from home. In this period, over 900 central and nearly 6,000 State government notifications have been issued which are related to managing the pandemic. This is in addition to notifications on other subjects. The absence of a functioning Parliament or Committees implies that there has been no check or guidance on government action.
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When it meets, Parliament should look at the government’s response to the crisis. However, the function would become more of a post-mortem analysis rather than an ongoing guidance mechanism. Contrast this with a well-functioning committee system such as the British example of the contact tracing app which guides government action before the event. As an aside, this reminds me of the old stock market advice of “buy low, sell high”, which while being a sound maxim does not guide anyone in making an investment decision. The only thing one can do later if things go wrong is to rue the loss.
The lack of parliamentary oversight has been compounded by judicial intervention in many policy issues. For example, the government’s actions related to the lockdown and the hardships caused to migrants should have been questioned by Parliament. Discussions in parliamentary forums would have helped the government get feedback on the ground situation across the country and fine-tune its response. However, this was taken to the Supreme Court, which is not equipped (and dare I say, mandated) to balance policy options. Directions of the Court have to be followed which removes flexibility needed to tackle evolving issues with implementation. To take another example, the Court decided to limit the period in which telecom companies have to pay their dues to the government, and overruled a cabinet decision. This is a policy matter that balances interests of telecom companies, consumers (who suffer through price hikes or potential formation of a monopoly), and banks (which may face defaults by telecom companies). This issue is best judged by the government with oversight by Parliament. Of course, if there is illegality (say, corruption), then the matter should be judged by courts.
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Short session, much business
Parliament should recover lost ground by fulfilling its constitutionally mandated role. It has a large number of issues to discuss in the short 18-day session. The fact that the two Houses are working in shifts to use the same physical space limits the scope of extended sittings on any day. In the period since the last session, the government has issued 11 ordinances. Five of these relate to the COVID-19 crisis and the lockdown: extending tax filing dates, moratorium on new insolvency cases, protection for health workers, and temporary cuts in salaries and allowances of Members of Parliament and Ministers. Of the other six, two relate to supersession of the Boards of the councils that regulate homoeopathy and Indian systems of medicine, one allows the Reserve Bank of India to regulate cooperative banks (a similar Bill is pending in Parliament), and three relate to agricultural markets (allowing contract farming and trading outside mandis ). While the ordinances related to COVID-19 have a temporary application, Parliament should refer those with long-term implications (such as the farming and the banking ones) to the respective committees for detailed scrutiny.
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Several events have taken place over the last six months that need thorough discussion. This includes ways to tackle the spread of the novel coronavirus and limit mortality, and possible paths in the months ahead that could guide government action. Economic growth, which has been decreasing for the last couple of years, has had a sharp fall in the first quarter of this fiscal year. This has far-reaching implications for creating jobs, stability of the banking system, and government finances. The government is likely to bring in a supplementary budget; indeed, a fresh look at the Union Budget may be required given the changes in basic assumptions since January. The situation at the China border also needs to be discussed.
The absence of Question Hour and a shorter Zero Hour restricts the ability of Members of Parliament to hold the government accountable and represent public interest. That said, Members of Parliament must use other available interventions to ensure that new laws and expenditure proposals are passed only after detailed discussion. Parliamentarians have a duty towards Indian citizens to fulfil their role in scrutinising the work of the government and guiding policy. Despite the curtailed session and the constraints due to the coronavirus, they should make the best of the limited time to do so. They need to wrest back their rightful role in our democracy.
M.R. Madhavan is the President and co-founder of PRS Legislative Research