The last session of the current Parliament is underway. In the last few years, parliamentary democracy has taken a beating, largely due to the actions of the current government. Several Citizen groups from across India have come together to release a “charge sheet” against the government of India for subverting and undermining Parliamentary democracy.

The objective of the charge sheet is to highlight the collapse of parliamentary democracy due to the ruling party’s deliberate subversions of processes and laws. The charge sheet enlists and shares evidence for eight charges levelled by the people of India against the government.

The following speakers spoke at the press meet:• Father Cedric Prakash ; Human Rights and Peace activist,  Henri Tiphagne; National Secretary, Human Rights Defenders Alert  India,  Maitreyi K; President, All India Lawyers Associations for Justice, Nadeem Khan, National Secretary, Association for Protection of Civil Rights, Priyadarshini; Co-ordinator, Delhi Forum

The “charge sheet” released to the public may be read below:

We the People of India

Vs.

Government of India

“Charge sheet” against Government of India for subverting our parliamentary democracy guaranteed by the Constitution of India

LIST OF CHARGES 

DETAILED EVIDENCE

Charge: No Deputy Speaker in Lok Sabha in violation of Article 93 of the Constitution

Evidence: Since the beginning of the 17^th Lok Sabha on 17^th June 2019, no Deputy Speaker has been elected in Lok Sabha. This is the first time since independence, that the term of a Lok Sabha will complete with the post of Deputy Speaker remaining vacant despite the mandate of Article 93 of the Constitution that stipulates that Lok Sabha ‘shall’ choose a Speaker and a Deputy Speaker as soon as may be. Since the Speaker is usually a nominee of the government, the Deputy Speaker has conventionally been a nominee of the opposition. The nomination is deliberately delayed to establish supremacy of the ruling party in the Lok Sabha.

Charge: Lowest number of sittings in a full term Lok Sabha, controlling Parliament as per its whims, reducing opportunities for holding government accountability

Evidence:

• Earlier the 16^th Lok Sabha (2014-19) had the lowest number of sittings during its five year term – 331 sittings. However, the 17^th Lok Sabha is now likely to have the lowest number of sittings – approximately 278 (including the scheduled Budget Session of 2024). This is markedly lower (approx. 34% lesser sittings) compared to even the NDA’s own first full term – 423 sittings during the 13^th Lok Sabha (1999-2004).
• During 2020, with Covid becoming an excuse, Indian Parliament was in session for only 33 days. Many other democracies across the world held virtual Parliament sessions, debates and even remote voting, but Indian Parliament remained shut for most of the year. In 2020, the Winter Session didn’t happen at all. Even Parliament Standing Committees couldn’t meet to discuss vitally important issues like government’s response to Covid, the migrant exodus etc. during the height of first wave as they were not allowed to meet virtually.
• State Assembly Elections have become an unconstitutional excuse to shorten Parliament sessions. In 2017 and 2022, the Winter Session was delayed and shortened due to assembly elections in some states like Gujarat. In 2018 and 2023, again Winter Session was delayed and shortened due to elections in some states like Rajasthan and Telangana.
• When Govt completes its own agenda for the session, it gets the session adjourned ahead of schedule. Between 2020 and 2022, seven consecutive sessions ended ahead of schedule. The Special Session and Winter Session in 2023 also ended ahead of schedule. When a session ends ahead of schedule, all questions asked for the remaining days lapse, MPs lose opportunities to raise issues of public importance in House. Thus, Parliament ends up becoming a platform for pushing only the agenda of the party in power and not for debating people’s burning issues.

Charge: Bringing more and more ordinances bypassing parliamentary scrutiny, repromulgating ordinances committing a fraud on the Constitution

Evidence:

• Under UPA II government, between 2004-14, 61 Ordinances were promulgated. Between 2014 and 2021, this record had already been broken with 76 Ordinances.
• The Land Acquisition Amendment Ordinance was promulgated three times (2014-15). The Enemy Property (Amendment and Validation) Ordinance was promulgated 5 times in a single year (2016) – a record of sorts. Repromulgation of ordinances is a fraud on the Constitution, as Ordinance making power is to be used only in exceptional circumstances to make temporary provisions.
• The three farm laws were first brought as Ordinance as people were busy surviving the first wave of Covid in 2020.
• In 2023, the Government of NCT of Delhi (Amendment) Ordinance was issued to overturn the Supreme Court judgment giving control over ‘services’ in Delhi to the Govt of Delhi. This is an indication of the failure of the present political dispensation to conduct its work in a more democratic and transparent manner as per the rule of law.

Charge: Introducing Bills without following the democratic process, passing Bills without discussion, in absence of Opposition MPs in House, in undemocratic manner

Evidence:

• So far in 17^th Lok Sabha (as on 21 December, 2023), 86 Bills in Lok Sabha and 103 Bills in Rajya Sabha have been passed with debate time of less than 2 hours.
• In the Winter Session of 2023, after mass suspension of Opposition MPs from both Houses of Parliament, as many as 14 Bills were cleared by either or both Houses of Parliament within just 3 days in which Opposition either did not participate or there was minimal participation.
• During the debate on 3 criminal bills in Winter Session of 2023, 34 MPs participated in Lok Sabha out of which 25 were from BJP alone and similarly in Rajya Sabha, of the 40 MPs who spoke on the Bill, 30 were from BJP alone.
• In the Monsoon Session of 2020, as Opposition MPs boycotted proceedings following the Farm Bill fiasco, for 15 of the 27 Bills passed in that session, Opposition MPs were absent in either or both Houses.
• In the Monsoon Session of 2021, as Opposition protested because the government stonewalled their demand for debate on the Pegasus snooping scandal and farmers’ protest, the Lok Sabha cleared 18 Bills amid protests, spending an average of only 15 minutes on each. Some Bills were cleared within 5-6 minutes.
• In the Monsoon Session of 2023, in just one week Lok Sabha passed 7 Bills with an average time of 21 minutes each only. The controversial Forest Conservation Amendment Bill was passed in Lok Sabha within 33 minutes, only 4 MPs spoke. The Digital Personal Data Protection Bill was debated in Lok Sabha for only 40 minutes, only 8 MPs spoke. In Rajya Sabha the DPDP Bill was debated for only 50 minutes, during which no Opposition MP participated. The Opposition was protesting on the Manipur crisis and demanding a debate.
• A new record was set in the Monsoon Session of 2023, when Rajya Sabha passed the Pharmacy (Amendment) Bill within just 3 minutes. The next day, Lok Sabha cleared two Bills – Central GST Amendment and Integrated GST Amendment Bill – within 3 minutes!
• Many a times, Bills are added to the agenda at the last minute.
  • In 2017, the Enemy Property (Amendment and Validation) Bill was passed in Rajya Sabha, when most Opposition MPs had left on the assurance that the Bill would not be taken up on that day.
  • In 2019, the Jammu and Kashmir Reorganisation Bill was sprung as a complete surprise and pushed through Rajya Sabha without affording MPs any opportunity to read or analyse the Bill.
  • In the Monsoon Session of 2021, as many as 11 Supplementary lists were issued with 9 in Rajya Sabha alone and 6 of these were to list Bills for either introduction or passing, thus divesting MPs of enough opportunities to study, analyze and debate on the Bills. In fact on the last day, the Constitution (105th) Amendment Bill and two other Bill were added to Rajya Sabha’s agenda through a Supplementary list allowing MPs only an hour to move amendments.
  • In Winter Session of 2021, the Government pushed for passage of the Election Laws Amendment Bill (which provides for Aadhaar – Voter ID linking, among other things) on the same day as its introduction without providing MPs any time to prepare for debate. It was taken up for debate in Rajya Sabha on the next day itself with MPs alleging that they were not informed in advance.
  • The three criminal Bills were also introduced as a surprise on the last day of the Monsoon Session, 2023.
  • In the Winter Session of 2023, the Telecommunications Bill was also introduced by including it in the agenda at the last minute.
  • In the last Parliament session of the Govt before elections, on 5^th February 2023 itself, 3 Bills were introduced after including them in the agenda at the last minute.
  • In the last Parliament Session, the originally proposed agenda of the Govt mentioned only 3 Bills, but not only did Govt introduce 3 more new Bills not originally included in agenda, but pushed at least two more Bills pending from previous sessions which were also not part of its agenda.

Charge: Lack of transparency in law making process, not doing proper public consultations, violating Pre-Legislative Consultative Policy and not sending Bills to Standing Committees

Evidence:

• From 71% of all bills being referred to Standing Committees between 2009-2014, since 2019, only 16% of bills have been referred to Standing Committee.
• Only 74 out of 301 i.e. 24.5% of Bills introduced in Parliament were circulated for consultation between 2014 and 2021. Of these 74 Bills, at least 40 were not circulated for 30 days, as specified in the Pre-Legislative Consultative Policy.
• More controversial Bills are sent to Joint Parliament Committees (as Govt decides who gets to be on a JPC). Since, 2014 the following Bills were sent to JPC, chaired by BJP MPs, instead of the relevant Standing Committees, chaired by Opposition MPs:
  • Land Acquisition Amendment Bill
  • Citizenship Amendment Bill
  • Personal Data Protection Bill
  • Forest Conservation (Amendment) Bill
  • Biological Diversity (Amendment) Bill
• Increasingly Committees are also not inviting comments from public and undertaking consultation properly before submitting their reports. The JPC on Jan Vishwas Bill did not invite comments from public. The Standing Committee on Home Affairs chaired by a BJP MP which was studying the three criminal Bills did not invite comments from public. Several Opposition MPs submitted dissent notes alleging that the Committee rushed with the process and only invited selected people to depose before the Committee.
• As per the petition filed in Supreme Court challenging the Forest Conservation Amendment Act, 2023, the JPC on the FCA Bill received 1309 memoranda from the public which were critical of the Bill, but the JPC ignored most of these and failed to make recommendations to improve the Bill.

Charge: Passing Budgets without adequate scrutiny, including problematic provisions like the Electoral Bonds in Finance Bill

Evidence:

• Between 2016 and 2023, on average, 79% of the budget has been passed without discussion. As per the conventional process, Lok Sabha discusses budgets of some Ministries in detail and votes on them separately. After the days allocated for budget discussion are over, the budgets of remaining Ministries are voted upon together without discuss, a process termed as ‘guillotine’. Less number of sittings, short budget sessions, poorly planned agenda of a government not interested in transparent accountability and debate, leads to less and less proportion of the Budget being discussed in detail and more and more of it being passed without discussion.
• The Budget Session of 2018 saw the entire Budget of the government passed within an hour and amidst chaos, without any discussion, i.e., 100% guillotine. This happened as the days allotted for discussion and voting on the Budget saw protests as the Speaker was not accepting opposition’s demand for a no-confidence motion.
• In 2018, the Finance Bill was also passed within eighteen minutes, without any discussion.
• In 2020, the Finance Bill was passed within an hour without any discussion, as the government curtailed the Budget Session ahead of schedule, few days before imposing a nationwide lockdown.
• In 2017, the Finance Bill contained controversial non-financial provisions for restructuring tribunals, allowing anonymous political donations through electoral bonds, making Aadhaar mandatory for applying for a Permanent Account Number, etc.
• In the year 2023-24 also, the entire Budget was passed without any debate within just 8 minutes amid protests and disruptions in the House. The Opposition was demanding a JPC on the Adani scam. The Finance Bill was also passed without any debate within just 35 minutes.
• The Budget Session has a recess in between to enable Standing Committees to scrutinize the Budget of each Ministry in detail. But Govt is giving less and less time to Standing Committees to study Budgets. From a 40 day recess in 2016, the recess came down to only 20 days in 2021.

Charge: Unprecedented number of Opposition MPs suspended in Winter Session 2023, a virtually Opposition less Parliament passed controversial Bills

Evidence:

• It has become a routine practice now – Opposition demands debate and discussion on an issue, government keeps stonewalling and denying debate, opposition protests and disrupts, government uses that as an excuse to push Bills through without debate, amid protests. This time opposition’s protest demanding debate on the Parliament security breach led to an unprecedented 146 MPs from Parliament being suspended. This is the highest number of MPs to have been suspended ever. This amounted to almost 20% of the strength of both Houses and virtually the entire Opposition.
• While most MPs were suspended till the end of the Winter Session, several MPs were suspended indefinitely pending an inquiry by Committee of Privileges against them. Such indefinite suspension is illegal as rules do not empower either the Speaker or the House to suspend MPs beyond the session in which they are suspended.
• After the suspension of MPs, several crucial Bills were pushed through both Houses including the three criminal Bills, the Telecommunication Bill, the Bill for appointment of Chief Election Commissioner and other Election Commissioners etc.

Charge: Govt uncomfortable with Questions, Questions asked by Opposition MPs get deleted, Ministries provide evasive responses to questions

Evidence:

• Close to 290 Questions asked by Opposition MPs were deleted after they were suspended from the House during the Winter Session of 2023. There are no rules which provide for Questions of suspended MPs to be deleted.
• This was not the first time this has been done. There are media reports of this happening in 2015 and since then there are records of this happening in 2020, 2021 and again in 2023.
• In 2020, Govt also cited Covid as an excuse to do away with Question Hour altogether during the Monsoon Session of 2020, though under pressure from opposition parties, it agreed to answer questions only in writing. During the Special Session of 2023 also, no Question Hour was conducted and no questions were answered.
• Ministries also evade questions, ignore controversial sub-parts of questions, give misleading or incomplete responses or simply say – data not available. While earlier governments have also tried to evade questions, as no government will be comfortable in answering questions, the current dispensation has demonstrated a particular contempt for people’s accountability.

Finally, therefore this group of citizens has on behalf of, We the People of India, “charged the Government of India” for violating the ideals of democracy, justice, rule of law and accountability enshrined in the Constitution.

Related:

Faultlines in India’s parliamentary democracy

India today has all the markers of a failing democracy. But the situation is not irreversible

The principles of democracy can’t be scarified at altar of majoritarianism: Justice Govind Mathur

By holding up bills, are Governors undermining democracy? 

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Barack Obama addressed the Members of Parliament at a Joint Session of both houses at the Parliament of India, 2010. Wikicommons/ Government of India. Some rights reserved.

Democracy is a form of government understood to revolve around the consent of the governed. In a parliamentary democracy, this principle is enshrined by enabling citizens to elect legislators, who then go on to appoint the executive, consisting of a council of ministers headed by the Prime Minister or Chief Minister. This system essentially requires the executive to be accountable to the legislature which is presumed to reflect the will of the people.

While the framers of the Constitution in their wisdom felt that the parliamentary democracy model was the one best suited to India, I believe that on close examination the current system does not embody the consent of the governed even when this is calculated with a significantly low threshold.

When a political party enjoys a brute majority, the first casualty is the accountability of the executive to the legislature. This is because the opposition and other political parties have no way of keeping the executive in check by preventing the passing of bills, etc. The ‘anti -defection law’ in the Tenth Schedule of the Constitution has reduced legislators to mere numbers as they are bound by the whip issued by the party. In other words, a legislator is forced to toe the line of his or her party’s leadership even though he or she holds a different opinion.

Voting against the wishes of the party puts him or her at risk of disqualification. This raises an important question: Is the legislator accountable to the electorate and obligated to represent their views or is the legislator just a party minion? Political parties have increasingly emerged as extra-constitutional authorities dictating terms to constitutional functionaries such as legislators.

Governance, the implementation of policies and infrastructure development in one’s locality or constituency, have considerable significance for citizens. While this may seem appropriate in the context of the separation of powers, it is ironic that legislators who supposedly reflect the will of the people lack authority with regard to the issues which matter most to the citizens. At best, legislators may use the Local Area Development Funds( Rs 2 crore in case of MLAs and Rs 5 crore in case of MPs, per annum), lobby with the government, or raise issues in the Parliament or Legislature. In reality, decisions pertaining to these issues are left to the discretion of the government, and legislators (especially those who do not belong to the ruling party or are independent) are helpless.

People are hence hesitant to vote for independent candidates despite the better credentials they often enjoy. The current Lok Sabha has only three independent members. There are also instances of legislators of the ruling party wielding unauthorised powers by interfering in the functions of the executive, such as transfers and the appointment of public servants, the awarding of infrastructure development contracts, etc. Either way, the functioning does not facilitate good governance and transparency.
 

The role of legislator

This leads us to the question: what exactly is the role of a legislator? While the Constitution suggests that it is primarily law making and keeping the executive under check by raising questions and issues, as stated earlier, the legislators have been reduced to mere ciphers. And with regard to questions raised in the Parliament or legislature, it has to be borne in mind that this is not very effective as assurances given to legislators by ministers are seldom met.

For instance, ABP News reported in 2017 that the Central Government had met only 30 per cent of the assurances it had given in the Indian Parliament. This only reflects the fact that the executive is hardly accountable to the legislature and when coupled with legislators lacking tangible power, the notions of the consent of the governed and the will of the people are a farce.

Private member’s bills are an important feature of our parliamentary democracy and it is unfortunate that only 15 such bills have been passed in the history of the Parliament. Reports prepared by PRS Legislative Research suggest that most of the bills are not even discussed in the Parliament. This further diminishes the identity and role of a legislator.

The assessment of the performance of a legislator is tricky for citizens as well as organizations which seek to enlighten citizens, due to the lack of autonomy and authority vested in them with regard to issues which concern the citizens of their constituencies.

In contrast, the citizens of a country like the United States of America are in a position to assess the performance of the legislators by analysing his or her voting pattern on issues which concern the citizens, not necessarily adopting the party’s stance.

Unfortunately in India, assessment of the performance of legislators is confined to parameters such as infrastructure development in the constituency and the quality of civic amenities, while being oblivious to the fact that these are the functions of government and local self-governing units, and not of a legislator.
 

Presidential system

Despite being a parliamentary democracy, the current trend suggests that we are functioning along the lines of a presidential system, in which people vote, bearing in mind who they want as the Prime Minister or Chief Minister. This will inevitably lead to a concentration of power in the prime minister/ chief minister and a few other ministers.

Things get further complicated in a quasi-federal country like ours when voting in state elections is influenced by factors such as which party the Prime Minister belongs to rather than factors such as quality of the candidates and the credentials of aspirants for the Chief Minister’s position.

The safeguards meant for a parliamentary democracy will not prove effective against this trend. We must either acknowledge the faultline and strive towards getting the Constitution amended to establish a system of government which truly embodies the consent of the governed and the will of the people, or remain oblivious to the fact that legislators do not and cannot represent the will of the people.

Rahul Machaiah is a law student.

Courtesy: https://www.opendemocracy.net/

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The recent decision of the government of Gujarat to lift the long–standing ban on government servants being members of the RSS has aroused much controversy. Many, already distressed by the policies of the state government of encouraging extremist Hindu parties, have seen it as yet another instance of a fanatical fascist group using its power to destroy the secular basis of our country. Others see nothing wrong in the decision; why not let civil servants belong to a party, they say, particularly as several ministers belong to, or are sympathetic to that very party?

A dispassionate discussion of this issue is called for. The issues involve a consideration of our Constitution, and the basic underlying principles of our parliamentary democracy.

Our Constitution declares that India is to be a secular republic. The Supreme Court has held that secularism is a basic feature of the Constitution which cannot be amended. What secularism means has been the discussed by the Supreme Court in the famous Bommai Case, when a large bench of the Supreme Court upheld the dismissal of several BJP–controlled state governments after the demolition of the Babri Masjid. Some observations in the judgements delivered in that case deserve to be quoted:

"Under our Constitution … religion cannot be mixed with any secular activities of the state. In fact, the encroachment of religion into secular activities is strictly prohibited."

"In matters of State, religion has no place."

"The Constitution does not recognise, does not permit, mixing religion and state power. Both must be kept apart."

The Constitution contains fundamental rights which include the right to freedom of speech and the right to freedom of association. These rights are not absolute, and can be curtailed in appropriate cases in the interests of public order or the integrity of India. The Constitution also contains Article 25 which confers on all citizens the right to profess, practice and propagate the religion of their choice, and it is settled law that whilst conversions from one religion to another by threats or inducement can be prohibited, voluntary conversions cannot be restricted.

Our Constitution also contains a chapter on fundamental duties under which all citizens are under a duty to abide by the Constitution and respect its ideals and institutions, to uphold and protect the sovereignty, integrity and unity of India, and to promote the harmony and spirit of common brotherhood among the people of India transcending differences of religion, language, etc. These fundamental duties cannot be directly enforced, but are relevant in determining the legality and constitutionality of laws and restrictions on fundamental rights.

Government servants do not cease to be citizens, and have the right to enjoy fundamental rights, but restrictions can be imposed on their enjoyment of such rights which are necessary in the interests of the sovereignty or integrity of India.

We are a parliamentary democracy. This is also a basic feature of our Constitution. In a parliamentary democracy, power is enjoyed by a council of ministers which commands the majority support in the legislature. The ministers run the country with the assistance of the vast civil service which is permanent; the civil service does not change with a change in the government. It is expected to conscientiously discharge its duties, and execute the policies determined by the ministers. Parliamentary democracy cannot function efficiently unless the civil service is, and remains, wholly independent or impartial. The whole system would break down if members of the civil service get identified with political parties as they could not possibly execute the policies of another, rival, political party. Any identification of the civil service with a political party is also dangerous as there is then every likelihood of the politically inclined civil service using the machinery of the State, and its vast resources, to favour that political party.

A compromise has generally been struck between ensuring, on the one hand, an independent and impartial civil service, and ensuring that the civil servants themselves can enjoy the basic rights of citizens such as the right to vote, and the right even to belong to political parties. The right to belong to a political party enjoyed by civil servants is not, however, absolute, and must be restricted in the interests of parliamentary democracy and secularism.

The position in England is instructive. Civil servants generally cannot belong to organisations which are committed to overthrow or undermine parliamentary democracy. Even as far as ordinary and democratic parties are concerned, a civil servant cannot publicly support any political party or its policies.

As we also are a parliamentary democracy, the principles followed in England are instructive. We also have to constantly bear in mind the basic principles of our Constitution and the fundamental duties imposed on all citizens. Obviously, government servants must discharge the same duties, and the obligation on them to do so is greater, as they occupy a pivotal position in the State.

Whilst government servants in India can undoubtedly belong to political parties which are committed to parliamentary democracy, and secularism, they cannot be allowed to belong to a political party which is committed to the very opposite. Let me give an illustration. Would the government of Gujarat allow its government servants to belong to an organisation, which recommends that Junagadh should be handed over to Pakistan, or the government of India allow its government servants to belong to organisations which recommend an independent Nagaland? Clearly not.

In fact any such political parties would be working against the integrity of India which it is the duties of all citizens, including government servants, to uphold. Any government which does not prohibit government servants from being in any way associated with such parties would be failing in its duty.

Suppose we have a political party, which proclaims that Hindus are bigoted and full of superstition, and should not be employed in public service. Surely, propagation of that point of view does the very opposite of what the Constitution enjoins as a fundamental duty on all citizens; not only does it not promote harmony amongst people belonging to different religions, it does its best to bring about discord and disharmony. If ordinary citizens do this, it is, to say the least, unfortunate. If, however, a government servant does it, it may well have calamitous consequences, as whatever he says would, at least in the minds of very many people, particularly those who are not well-educated, and live in rural areas, carry behind it the weight of official approval. Government servants must, like Caesar’s wife, be above suspicion. That is why there has to be imposed a much higher standard of care and circumspection on all government servants than on ordinary citizens. They cannot be permitted to be associated with any political party which is associated with any policy which destroys or threatens the integrity or unity of India or inter–religious harmony.

What is the RSS? It is not like other political parties. Historically, let us not forget, people of the RSS–mindset were responsible for the heinous murder of the greatest Indian of modern times, Mahatma Gandhi. Gandhiji has been, and is, revered all over the world, but many members of the RSS are still full of praise for those who murdered him. The RSS is a group of people who are fascist in their thinking, and openly recommend the substitution of our parliamentary democracy and secular republic. Many of their policies are violently anti–Muslim, and, of late, particularly in the state of Gujarat, viciously anti–Christian. It is impossible to be a member of the RSS and also abide by the fundamental duty of every citizen, that is, to abide by the Constitution, or to respect its ideals and institutions, or to promote harmony and brotherhood between Hindus and Muslims or Hindus and Christians. Further, a member of the RSS, if also a government servant, cannot by reason of the very tenets of the RSS keep the Hindu religion and state power apart. The long-standing ban on membership of the RSS and other communal organisations, was, therefore, right.

For any state government to allow government servants to belong to the RSS or, indeed, to any communal or secessionist organisation, would be wrong. The ban has been in force for many years. For a government run by the BJP, which has close links with the RSS, to revoke the ban is doubly wrong. It is favouring its own party, and jeopardising the impartiality and independence of the civil service. It is sending a message to the whole State, and in particular, to the citizens belonging to the minorities, that the whole State government will be run as the RSS wants.

Archived from Communalism Combat, February 2000. Year 7  No, 56, Controversy
 

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