Voice vote as constitutional subterfuge
Context:
The Karnataka Prevention of Slaughter and Preservation of Cattle Bill was passed by the State’s Legislative Council on February 8. The law was passed by the Council despite the lack of a majority. Instead of having a division vote based on actual voting as is usual and as the Opposition members had demanded, the presiding officer just declared the Bill passed by voice vote without any division.
New legislative template:
- If this sounds rather familiar, it is because an uncannily similar process was followed to pass the controversial farm laws (by the Rajya Sabha) in September 2020.
- Here too, the government seemed to lack a majority to pass the bills in the Upper House.
- In the last few months, while there has been extensive discussion of the farm laws, they have largely been about the merits of the laws and the need for reforms in the agrarian sector. But the fact that the legislative process followed for these laws did away with actual voting in the Upper House has not been given the prominence it deserves.
- These two sets of laws passed with a voice vote seem like a new template for bypassing the constitutionally envisaged legislative process.
- Indeed, both were first passed as ordinances; such was the urgency felt for enacting them.
The Money Bill ruse:
- The voice vote subterfuge supplements the other technique repeatedly deployed over the last few years to bypass the Upper House of Parliament — the Money Bill route, utilised increasingly in instances even where the laws concerned would not easily fit within that definition.
- Most notoriously, the Aadhaar Bill was passed in this manner.
- But other controversial laws such as those pertaining to electoral bonds, retrospective validation of foreign political contributions and the overhaul of the legal regime relating to tribunals have also been carried out through the Money Bill ruse.
The Rajya Sabha’s role:
- The fact remains that even if all these laws were actually unquestionably desirable and necessary, the dubious mechanisms followed for their enactment would surely mean they are unjustifiable.
- That is precisely why the justification for such subterfuge to pass these laws is so revealing.
- The increasing use of the Money Bill route was defended by the then Leader of the Rajya Sabha when he deplored the repeated questioning by the indirectly elected Rajya Sabha of the wisdom of the directly elected Lok Sabha. Underlying this common sentiment is a tendency to devalue bicameralism itself.
- The Lok Sabha is seen as directly representing the will of the people, and the Rajya Sabha as standing in its way.
The value of bicameralism:
- Legal philosopher Jeremy Waldron has explained the virtues of bicameralism, especially when the two Houses are chosen by different processes of representation and elected on a different schedule.
- In India, the fact that the Rajya Sabha membership is determined by elections to State Assemblies leads to a different principle of representation, often allowing different factors to prevail than those in the Lok Sabha elections.
- John Stuart Mill had warned in his classic treatise on representative democracy that “a majority in a single assembly, when it has assumed a permanent character—when composed of the same persons habitually acting together, and always assured of victory in their own House — easily becomes despotic and overweening, if released from the necessity of considering whether its acts will be concurred in by another constituted authority.”
- Now that judicial review is hardly practised in India, the second chamber’s performance of such a role becomes particularly important as it offers the opportunity for a second legislative scrutiny.
Taking legislature seriously:
- Arguably though, the malaise that allows such legislative humiliation to be tolerated in India runs even deeper, evident in the contempt for the legislature that has been shown by the executive in this country since the mid-1970s.
- While the British Prime Minister was being taken to task on ‘Prime Minister’s Questions’ every Wednesday in the House of Commons even during the pandemic, Parliament in India was not even convened until it became necessary, and that too after suspending Question Hour.
- The legislature’s role here is seen as only to pass legislation — the faster the better. But in a country where judicial procedure is perceived as an obstacle to justice by judges themselves, it should not surprise us that legislators view legislative procedure as dispensable so that laws can be enacted by hook or by crook.
1.png)
