LAW RESOURCE INDIA

Undermining Parliament won’t do

Posted in CONSTITUTION, LEGISLATIONS, LEGISLATURE, PARLIAMENT by NNLRJ INDIA on December 5, 2010
Indian Parliament Building Delhi India

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A TRIBUNE CHANDIGARH SPECIAL

Neither the Opposition nor the Government has the right to disrupt the session over any issue, says Subhash C. Kashyap

in recent weeks, we have witnessed so many scandals in high places to the tune of lakhs of crores of public money that we must bow our heads in shame. Disturbingly, the 2G spectrum allocation, the Commonwealth Games, the Adarsh Society and the Niira Radia tapes reveal only the tip of the iceberg. Much more is hidden below the surface.

Parliament, as the supreme representative institution of the people, ought to take serious note of the challenges to our polity posed by the giant scamsters. Members rising above party lines should have deliberated upon ways to quickly identify and punish the guilty and devise systemic reforms to prevent recurrence of such scams.

From day one, the winter session of Parliament has been rendered dysfunctional. The only business it transacted during three weeks was a sham and a disgrace. Supplementary Demands and Appropriation Bills for thousands of crores were passed without any debate by a voice vote amid din. There could be no better evidence of the low levels to which the MPs’ respect for Parliament and public money has descended. The basic issues of large-scale corruption have receded to the backstage and much of the focus is on the long logjam.

The Opposition members were united in demanding a Joint Parliamentary Committee (JPC) for examining the three big scams. They are firm on disrupting Parliament unless this was agreed to. The government is equally firm on its stand that the Public Accounts Committee (PAC) is the appropriate forum for deliberating on financial accounts and the report of the Comptroller and Auditor-General (CAG). In any case, all matters could be discussed in Parliament. The government also offered a CBI probe under the Supreme Court’s supervision.

The Minister of Parliamentary Affairs says that the JPC demand is purely political and illogical. First, if the demand is political, its rejection by the government was equally so. Secondly, Parliament is primarily a political institution meant inter alia for debating political issues. ‘Political’ cannot mean unreasonable or illegitimate. Thirdly, there were compulsions of coalition politics. Some problems arose when for government formation in case of a hung Lok Sabha, a price had to be paid to coalition partners/ supporters, bargains had to be struck and the price demanded had to be paid in the form of creamy portfolios like Telecom.

In such a situation, corruption is inbuilt in government formation. It was known to the Prime Minister and others. It was understood and accepted as unavoidable in the best interests of power polities. Even former Telecom Minister A. Raja’s resignation became possible only after counter pressure and promise of support from a rival provincial satrap.

The Opposition felt that the JPC canvas could be vast while PAC probe would be limited in nature and the Ministers could not be summoned before it. As for the CBI inquiry under the Supreme Court, it was very legitimately wondered how the government could make such an offer or interfere with juridical functions and court’s discretion.

The Opposition asked what was so sinister about demanding a JPC probe. After all, during the NDA regime in 2001, a JPC was quickly conceded by the Prime Minister to probe the Stock Market Crash Scam and related issues. Former Finance Minister Yashwant Sinha, P. Chidambaram and Manmohan Singh as also the Finance Secretary appeared before the JPC. A report was made and its recommendations were largely accepted.

The Opposition disowned responsibility for making Parliament dysfunctional. It asserted that it was the government’s job to make Parliament function. But, as a logical conclusion, it would mean the use of disciplinary powers of the Presiding Officers and the Houses and suspension of members obstructing the proceedings and committing breach of parliamentary privilege and contempt of the Houses.

All the efforts made by the troubleshooters and party managers at all-party luncheon meetings have failed to break the deadlock and evolve a compromise. This was a clear failure of political and floor management skills of the government. The Speaker’s last ditch effort, too, failed.

Clearly, both the government and the Opposition are equally responsible for the ugly impasse. There was an unnecessary, illegitimate and irrational tug of war in the name of the people. But the people are nowhere in the picture. As usual, on both sides, political considerations and calculations of gain and loss have the upper hand. Perhaps, there is an unsaid long-term political concern before the government and the Opposition. Both are eyeing the 2014 general elections. The Opposition would like to drag the matter on through the JPC device and the Congress feared a repeat of what happened to it after the JPC on Bofors.

The people are appalled and dismayed at the shameful levels and reach of corruption involving the UPA-II government headed by Prime Minister Manmohan Singh and advised by the all powerful National Advisory Council. But the Opposition has done precious little to explain to ‘we, the people’ why it insisted on disrupting the proceedings of both Houses. The government also has failed to convince the concerned citizens about the justification, if any, for its unrelenting opposition to conceding the near-unanimous Opposition demand. It is also feared that deliberate dilly dallying on the JPC demand would help one to fudge records and buy and manage evidence. As Parliament has been paralysed, some of the talking was being done through blogs or television channels. The people needed to be informed about parliamentary processes, relevance and respective merits of parliamentary committees. Friends from the media kept enquiring this writer about the difference between a JPC and PAC.

It would have been better to use Parliament to talk to the people and educate them through debates about the arguments of both sides. The Opposition leaders could place all the facts and arguments most forcefully and plead for the appointment of a Joint Committee of the two Houses. The government side could also justify its stand. The people could then form their opinion though in a parliamentary system while the Opposition has the right to have its say, the government, so long as it is in majority, has its way.

Parliament is the chief communication link between the government and the people. Close contact and an intimate rapport between the two is the quintessence of parliamentary democracy. Parliament belongs to the people and not to MPs or parties. People must have access to Parliament. Unfortunately, there is a tremendous disconnect between the two. Things get worse when both Houses do not function and are shut against the people.

If the Opposition was anxious to question the Prime Minister and nail his responsibility, the Lok Sabha was the more effective and legitimate forum than a JPC. However, in a JPC, proceedings are in camera. Interestingly, the nomenclature JPC finds no mention in any constitutional or legal provisions or in the Rules of Procedure and Conduct of Business in the two Houses of Parliament. The term gained currency during and after the inquiry into the Bofors scandal in 1987.

The device of parliamentary committees is intended to assist the Houses of Parliament in the efficient discharge of their functions. There are two types of Parliamentary Committees in India: Standing Committees and Ad hoc Committees. Standing Committees are constituted by the House or the Speaker every year or from time to time and are permanent in nature. Ad hoc Committees are appointed for a specific purpose.

Standing Committees include the Financial Committees and Departmentally Related Committees. Ad hoc committees may be Select or Joint Committees or those constituted to report on specific matters. A committee which consists of members of both Houses is a Joint Committee. The Standing Financial Committee called the Public Accounts Committee is also a joint committee inasmuch as the Rajya Sabha MPs are also associated with it. All the Departmentally Related Standing Committees are Joint Committees.

Both Houses of Parliament have inherent powers to appoint special committees under special circumstances to examine and inquire into specific issues and report to the Houses. Apart from the Standing Committees, Ad hoc joint committees of both Houses have been constituted from time to time on various matters. Technically, these were JPCs. It is, therefore, not correct to say that the JPC on Bofors was the first JPC or that there have been only four JPCs so far. Also, it is incorrect to say that the four JPCs were total failures. A committee can only inquire and make recommendations. It is for Parliament to discuss them and for the government to accept them and take appropriate action.

After Bofors, the nomenclature JPC has in practice come to connote an ad hoc joint committee of both Houses formed for inquiring into a specific scandal of financial wrong doing. A distinctive feature of such committees is their investigatory role. Of the oft-cited four such investigative committees in the past, the first was in 1987 on the Bofors scandal. After crusading for it and blocking Parliament for long, the Opposition boycotted the JPC on the ground that it was packed by Congress members. Even though the Opposition boycotted the JPC on Bofors, its inquiry led to mass resignation of Opposition members and ultimately the change of the government. The Union Cabinet itself was split with V.P. Singh putting himself up as an anti-corruption Messiah.

The second JPC was formed in 1992 to investigate the Securities Stock Scam involving Harshad Mehta and other brokers. Parliament was largely paralysed for two weeks before the JPC was conceded. The third was set up in 2001 to investigate the Shares scam involving Ketan Parekh, banks and corporate Houses. From March 13, 2001, Parliament was paralysed for nine days after the Tehelka expose. In April, after another week of adjournments, the Opposition Congress demanded a JPC. On the issue of irregularities in defence purchases during the Kargil conflict, it again demanded a JPC. These demands were rejected. The political parties demand JPC when in the opposition and oppose it when in the government.

A joint committee may be appointed on a motion adopted by the two Houses and may contain the names of its members. It may also be appointed by the Speaker of Lok Sabha and the Chairman of the Rajya Sabha after mutual consultation. Members of some Standing Committees including the Public Accounts Committee are elected according to the system of proportional representation by means of single transferable vote. This may be so even in the case of some ad hoc committees. But even if the committees are constituted by the presiding officers, proportional representation of parties is kept in view and the numbers in committees represent the party position in the Houses, i.e. by and large the ruling party or parties remain in majority in the committees as well. In case of the PAC, by convention, the Chairman has been from the Opposition since 1967.

The Comptroller and Auditor-General of India is an independent audit agency. To the extent that the executive is accountable to Parliament in financial maters, the CAG works as the watchdog on behalf of Parliament. Parliament’s effective functioning depends largely on the CAG’s assistance who is considered its friend and guide.

In the present case, the CAG had done his job and his report was laid before the two Houses. It had unearthed a major scam and pointed out blatant and substantial irregularities causing a loss of Rs 1.76 lakh crore to the public exchequer. Without a public and transparent auction, the 2G spectrum licences were given away to companies with doubtful credentials in 2008 at throwaway prices by former Telecom Minister A. Raja. Two companies which had bought the licences for Rs 1500 and Rs 1600 crore, after a few weeks, sold their stakes for Rs 12,000 crore!

In parliamentary committees, the effort always is to function on non-party lines. Decisions are taken unanimously or by consensus but the rules provide for all questions at any sitting of a committee being taken “by a majority of votes of the members present and voting.” On crucial issues involving party susceptibilities, therefore, it would not be easy for the Opposition to have its way against the government. It may be, therefore, wrong for the Opposition to believe that they would be able to compel the presence of the Prime Minister or other Ministers before the JPC. The majority in the committee may overrule such suggestions. Also, under the rules, the question may be “referred to the Speaker whose decision shall be final.”

In the PAC, a minister is not called before it to give evidence or for consultation in connection with the examination of accounts. A minister may appear before it if the Chairman agrees. Also it can be so arranged between the Speaker, the Committee Chairman and the minister concerned that he appears on his own.

If the Opposition can be convinced that it should not appear to be stalling the proceedings of the House and the government realises that it need not be seen as avoiding inquiry, there may be a way out of the present impasse whereby the concerned ministers and even the Prime Minister may appear before the PAC. The committee can also go beyond the CAG report and take suo motu notice of allied issues. This would only require an initiative and a promise from the Prime Minister himself.

The Opposition had a golden opportunity to draw maximum political advantage by providing good leadership, clean citizen-friendly governance and inclusive politics. They could make corruption a major issue and launch a massive campaign against it through speeches in Parliament instead of disrupting it and sipping coffee in the Central Hall.

Meanwhile, the Supreme Court has asked the CBI counsel not to beat about the bush when illegality was prima facie evident. It has castigated the CBI for tardy investigation and asked why Mr A. Raja and then Telecom Secretary P.J. Thomas (currently the Chief Vigilance Commissioner) have not been questioned. It has also questioned the legitimacy of Mr Thomas’ appointment on the ground of pending charges against him and his controversial role as Telecom Secretary.

The saddest part of the current debate in the media and among the pro-establishment pseudo-liberal intellectuals is that there is no willingness to call a spade a spade and condemn wrong doing. Cheating by those in power is countered and defended by pointing fingers at similar cheating by the Opposition parties when they were in power. Party ‘A’ accuses Party ‘B’ of swindling public money and vice versa. The blame game continues while the losers are we, the aam admi.

The Opposition pressure, the Supreme Court’s observations and the public outcry against corruption are beginning to impact the government inasmuch as notices have at last been issued to companies asking them why their 2G spectrum licences should not be cancelled. If Mr Thomas doesn’t quit voluntarily, there may be a strong case for seeking annulment of his appointment as mala fide and ab initio illegal and void.

The ultimate question is whether the political class — the largest beneficiaries of corruption — has at last realised that enough is enough and the people won’t accept the sordid state of affairs anymore.

The writer, a noted constitutional expert, is a former Secretary-General, Lok Sabha

http://www.tribuneindia.com/2010/20101205/edit.htm#1

One Response

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  1. Surender Kumar said, on December 12, 2010 at 09:43

    Very informative and well judged article.
    I am of the opinion that a day is not far when some enemy will take advantage of corruption and declining morale values among Indian(even our Military is Corrupt-Aadarsh Scam) Citizens and again Take over India. Dont we need a Saddam Hussain Kind of Leader Once to set the things right and then back to democracy. Or dont we need American style of democracy?


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