Public Discussion and Parliament Sanctity

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N Balasubramanian

In keeping with our heritage of being ‘argumentative Indians,” there is an ongoing debate in the media as to whether parliament (especially when it is session) has been “insulted” by the presence and participation of some key parliamentarians belonging to the opposition parties at Anna Hazare’s one-day token fast event at Jantar Mantar in Delhi on the 11^th December 2011, reiterating his demand for a strong Lokpal legislation.

Clearly, established conventions do frown upon policy announcements by the government or its ministers and spokespersons outside of parliament when it is in session since it impinges on parliamentary privilege. Since other members of parliament can in no way make any official policy pronouncements on behalf of the government, no parliamentary privilege can conceivably be breached by their expressing themselves one way or another. Outside of parliament, shouldn’t parliamentarians be seen, accepted and treated like any other ordinary citizen of the country (except as constrained by conventions indicated) including the freedom of assembly, expression and peaceful protest?

The next issue is the choice of the forum for the exercise of such rights. Very few people seem to consider appearing on national media to participate in discussions on various issues even while parliament is in session. Strangely, spokespersons of the ruling parties including even some ministers do regularly appear on these debate shows and obviously do not see any parliamentary insult or impropriety in such appearances. In effect, are they not expressing their views and indeed often the views of their parties on matters under discussion in parliament? If such participation dies not adversely impact upon the stature and sanctity of parliament, why should airing such views in a public meeting be considered injurious to parliament’s august personality as a revered institution? Of late, several parliamentarians appearing on such shows in recent times seem to have developed a newfound respect for parliamentary privilege – they make the usual disclaimers and overly protest on their inability to divulge any details of proceedings in committees and so on before going on to disclose the substance of such discussions albeit shrouding them in bikini idiom – that is revealing more than they conceal!

Writing in the print media on the same lines also falls in to a similar category. In common with the electronic media exposures, those articulating their views in writing also are addressing an audience (hopefully large) on matters concurrently under discussion in parliament without any qualms of intruding into the domain of parliamentary privilege.

So, what’s it that makes physical gatherings of people different? Why should people find it unacceptable behavior on the part of parliamentarians who chose to share Anna Hazare’s podium? A particularly inane reason offered is that only parliament can legislate and therefore all these views should be expressed only in parliament! Nobody is saying that others can also legislate (thank God!) in addition to or in lieu of parliament. But liberty of the individual can certainly find expression in many ways including participation in such open debates and meetings so as to mobilise public opinion and pressure government to consider and incorporate whatever it feels comfortable with in its draft legislation for discussion in parliament.

The second reason offered is that no one can dictate to parliament or the “elected” government on what and how to legislate. Who can indeed dictate to parliament except the citizens at large when voting in elections? It is fallacious to argue that in between two elections, citizens forego their right to draw government’s and parliament’s attention to matters they consider cannot wait till another election. Expressions of this nature through the media and public meetings can be polite, persuasive and often (as happens in oratorical rhetoric) terse and peremptory but that by itself cannot be called dictating for the simple reason that as we noted before, nobody indeed can dictate in a democracy except the people themselves.

The third and perhaps the worst dysfunctional argument is that after all it is only a parliamentary committee’s recommendations that parliament as the supreme body can and will do what it thinks appropriate. It is strange that a committee’s report should be treated with such scant respect by the parent body notwithstanding the substantial dissent within the committee on the matter.  I am reminded of a brilliant in-house general counsel colleague who would refer matters from time to time for expert legal advice to eminent lawyers outside and when such advice was received would invariably reject the counsel with good arguments of his own and recommend his preferred course of action! An exasperated boss would ask him why at all he referred such matters to outside counsel at enormous cost in terms of time and money if at the end such advice was not to be heeded, my colleague would respond that procedurally that was the thing to do in important matters for after all, who knew, in some instance the external advice may be so good as to warrant acceptance internally! Referring to parliamentary committees should not degenerate in to such procedural niceties with little or no intention to consider their recommendations in an unbiased manner.

In democracy, parliament is indeed intended to be the supreme body reflecting at all times the diverse views of the people its members seek to represent. Parliamentarians cannot afford to shut themselves up in an insulated sound-proofed edifice to an extent that, like the three good old monkeys, they cannot see, hear or talk to the people who elected them in the first place. If they think some civil society teams (like Anna Hazare’s) do not reflect the opinion of a vast number of other citizens, they should demonstrate the basis for their conclusion. Why couldn’t MPs for example visit their constituencies to ascertain the general feelings of the people they represent and convey to their party chiefs who can aggregate the inputs and reach a conclusion that is not based on the views of a party ideologue or a coterie of experts from within but rather on the feedback from the grassroots which ultimately sustain the superstructure of the plant or the tree. The analogy to party high commands is strikingly close!

Would this be the ultimate panacea for all such knotty problems? I would love to think so ideally, but I hate to concede the reality may still be different so long as electoral reforms and intraparty democracy are not in place.  

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The Primacy Question - Party or Parliamentarians?

Innocent Frauds in Democracy

The Primacy Question: Party or Parliamentarians? 

Prof N Balasubramanian

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A country’s citizens do often nurture an apparently legitimate aspiration that since they elect their representatives to the parliament or state legislatures or even municipal corporations, they have a right to call them to account for their behavior and performance in the House. In fact, there is an increasing demand from civil society that the citizens should also have a right to recall should they feel their representative was not representing their interests and not keeping any pre-poll promises he or she may have made. In theory, this is perfectly valid since, following an agent-principal approach, the masters (people) could always ask their agents (parliamentarians) to do whatever they (as expressed by a majority) wish them to do – either represent or resign. But there are some conceptual issues that need sorting out before this salutary best-practice could be brought in through electoral reforms.  These can broadly be categorised under two headings: issues relating to the representative credentials of the parliamentarians; and those concerning the interdependencies between parliamentarians and their parties (where they belong to one). Some possible solutions for consideration and discussion on how to overcome some of these hurdles are also proffered.

On the “Representative” Credentials of Parliamentarians

A simple process of arithmetic is all that is required to dispute the claim that elected parliamentarians are truly representative of their electorate. Out of the country’s total population, those eligible to vote under our adult franchise system constitute roughly fifty percent, allowing for exclusions on account largely of the qualifying age of eighteen. Of those eligible to vote, not all do; the median voter turnout is placed in the range of between forty and sixty percent. For our calculation, let’s settle on 50%. That works out at best to 25% of the people of the country the parliamentarians could in the aggregate represent. Thanks to our fragmented party formations, compounded by the proliferation of “regional” parties and independents (what are they independent of is a question mark!), experience shows that no more than thirty to forty percent of polled votes are required to win an election. This translates to something like 7.5% to 10.0% of the constituency’s population to be elected as its representative. So much for the representative character of our elected parliamentarians and legislators!

How do we correct this anomalous situation? Several options have been suggested: first, make voting mandatory – but the problem is how do we handle hundreds of thousands who may yet not go out  to vote for whatever reason: old age, sickness, outstation, fear, and so on; second, changeover to proportional representation, a single transferable vote system where the votes polled by the least-polling candidate is transferred to another based on voter’s preference iteratively till a winning candidate gets all the votes where he or she has been preferred second, third and so on – the problem here is several fold: given the too numerous candidates standing for election in most constituencies, the transfer process will be excruciatingly slow and cumbersome, but even more importantly, in a land of widespread illiteracy where candidates have to be allotted unique symbols for illiterate people to identify them, implementing a reasonably fool-proof system of getting the voters not only to put a stamp on just one candidate of their choice but also to mark their preferences in descending order on other symbols as well will be a herculean, if not virtually impossible task; and third, penalise people failing to vote without sufficient cause  rather than mandate compulsory voting, through measures such as denying or delaying issue of passports, driving licences, reservation privileges,  grant of industrial licenses and subsidies, and such other actions, establishing a more concrete linkage between a citizen’s rights and obligations.

Concomitantly, there is a pressing need to ensure that “wrong” people do not get elected even if in the process some “right” candidates also suffer the consequences. For example, every voter must have an option of rejecting all the candidates in an election if none of them measure up to the expectations. Not only this, but if 50% or more of the votes polled favour such rejection, that particular election should be declared void and a reelection ordered, with the provision that none of the candidates in the impugned election would be eligible to stand again from that or any other constituency in India for a period of five years equivalent to the full term of an elected representative. This might at first sight seem harsh and also an expensive proposition but the benefits should far outweigh such reservations. In due course, it would also ensure a movement towards better discipline among intending parliamentarians to establish a credible base and a measure of political acceptability in their constituency, and discourage bogus and dummy candidates often fielded with ulterior motives of dividing the votes and so on.

On Parties and Persons

 The second issue in elections is the question of which is the entity that people are asked to elect. Candidates (except independents) belong to parties and are associated with the policies propounded by the party manifestoes or poll promises. It is not unusual that right people are in wrong parties and right parties field wrong persons as their candidates. In such cases how should the voter decide to cast his or her vote? This issue becomes even more relevant when we talk about “recalling” an elected member midway through his or her term. Once a candidate is elected on a party platform, he or she is virtually a bonded slave to the party leadership in terms of policy decisions. Such a parliamentarian becomes a non-entity and only counts a one vote in case of a division in parliament. The notorious institution of “whip” which undoubtedly suits the party bosses ensures that the member votes in line with the party position on pain of disciplinary action. Even if the member wishes to represent a differing view (hopefully representative of the general feeling in his constituency) he or she cannot possibly go against the party whip. This unenviable position came to the fore in recent controversies on the Jan Lokpal draft legislation when some of the ministers in the negotiating team had to hold the party line even though their constituents appeared to hold a different view.

Party Primacy

The moot question is whether a voter is electing a candidate or electing a party. If the party is supreme and the persons elected at such expense and effort are only dummies once they reach the legislature, it may be reasonable to argue whether it would not be better to elect parties based on their poll platforms and prospectuses rather than individuals however qualified they might be. In this scenario, the voters would be asked to choose a party of their preference, one for the Centre and one for the state, and the party getting the highest number of votes would be entitled to a seat from that constituency in the legislature. And in the aggregate, the party winning the largest number of such constituency seats will be entitled to form the government at the Centre or the state. The party will then appoint its council of executive ministers and the other parties would depending upon their seats nominate people to represent their party. Each party can be asked to nominate a small council of no more than say three of their nominees in each constituency to act as a bridge between the government and the people.

Does this sound a reasonable alternative to the present day situation? On the positive side, gone will be the wasted time effort and money on “selecting” candidates, electioneering individually (consider the air trips of top leaders to support candidates at various locations, just as an example!), the expensive (and eventually meaningless debates in parliament and state legislatures), the costs of thousands of parliamentarians’ personal establishments (including housing,  security personnel and administrative staff), elimination or at least considerable diminution of thousands of power centres of influence and potential corruption in the country,   and of course the frustrating time delays in getting things done at the government level. (I am tempted to call this “reengineering” government in a manner that may benefit more efficient and effective governance!).

On the negative side, one would lose the charms of oratory excellence one often witnesses in such debates, and for which the “mother of parliaments” was and is so famous. But unlike the Westminster and Capitol Hill models with an essentially two party scenario and a comprehensive structure of primaries and so on, India is struggling with far too many parties, most of which are region or personality centric, and voting population that, largely being poor and illiterate, is still grappling with problems of maturation as a democratic nation. There are of course significant signs of inherent wisdom in the Indian electorate as demonstrated several times and in several instances, toppling great names and resurrecting older greats from time to time. But once parliamentarians are elected, however inadequately or unrepresentatively, the people who supposedly chose them cease to have any power of control over their actions or inactions in the present dispensation; and that is a tragedy which tends to materially impair the potency of our democratic institutions.

But this package of reforms is fraught with considerable danger to democracy itself unless it is concurrently circumscribed by several disciplinary rules. A short list would include:

ü  Very strict rules of governance will have to be prescribed and enforced to ensure inner party democracy; an organization which cannot meet democratic principles internally can hardly be trusted to respect or deliver on such requirements at a government level

ü   There should be complete transparency, accounting and disclosure/reporting on matters relating to funding, membership, conflicted interests, and so on

ü  Each national or regional party should be required to disclose their choice of core members of the cabinet (not exceeding fifteen in case of the Centre and ten in case of a state) with disclosures as to their education, experience, expertise, public service, immediate family members and complete details of their and their immediate families’ wealth and sources of income, and details of any litigation – civil or criminal – whether closed or continuing, whether under inquiry or prosecution. Any material change in any of these details should be dynamically disclosed as they happen until the end of the term of the legislature, whether they happen to be in government or in opposition

ü  No member of the government or members of parliament representing other parties in parliament or state legislatures should be allowed to be in business or professional occupations during their term of office. They should devote their full, or substantially full time to the affairs of the state and their political parties, the latter in non-executive capacities. They should not associate with any other organization or entity (such as sports bodies and other social and apparently not-for-profit organisations as many politicians do at present) during their tenure of office in government or parliament. They should be adequately and attractively compensated by the government at disclosed rates and their compensation and other terms should be periodically reviewed and decided upon by a collegium of constitutional authorities

ü  If there are any conflicts of interest in respect of ministers’ and parliament nominees’ family members, they should be disclosed and the persons concerned should abstain from participation and voting on such matters, nor should they have access to policy papers relating to such issues

ü  The bureaucracy should take oaths of allegiance to the Constitution and should be open to disciplinary and judicial action in case of failure to act in the best interests of the country; there is no point in having an expensive administrative machinery if they do not apply their minds and simply follow instructions of the ministers or party functionaries for the time being in power.

ü  There should be a well-publicised Code of Conduct in Public Life that parliamentarians in government and opposition as well as bureaucracy must buy into and sign off on. Any complaints of deviation or breach should be open to investigation and reporting by a duly empowered Lokpal and actioned subject to judicial review by the Supreme Court

ü  To qualify as a national party, the party should have secured majority votes/seats in the preceding general election in at least one of the states (other than Union Territories) in at least three out of the five (north, east, south, west and central) regions; in case of new national parties, the party should have been incorporated at least two years before the general elections, conformed to all the governance requirements prescribed for older parties, and willing to field candidates for at least two thirds of the constituencies in their chosen states (other than Union Territories) in at least three regions of the country.

ü  Similarly, to qualify as a regional party, the party should have secured majority votes/seats in the preceding general election in at least one fourth of the constituencies in at least one of the states in any of the five (north, east, south, west and central) regions; in case of new regional parties, the party should have been incorporated at least two years before the general elections, conformed to all the governance requirements prescribed for older parties, and willing to field candidates for at least two thirds of the constituencies in their chosen states or Union Territories

Person Primacy

If these changes ushering in party primacy are considered too radical or impractical at this stage and one would rather stick to the concept of person primacy, how can we strengthen the present dispensation to make it a more potent instrument for reflecting peoples’ views and aspirations on a continuing basis? Here is some food for thought:

ü  Focus on the individual candidate rather than the party to which he or she belongs. Discontinue the party symbols in ballot papers and instead allot symbols (still necessary to overcome illiteracy related issues) to individuals

ü  Apply all criteria relating to disclosure of candidate information as set out earlier

ü  Ask each candidate to issue a pre-poll prospectus (which may be the same for all candidates belonging to a political party) setting out what his or her charter would be if elected. Definitely avoid any party affiliations or symbols linking the individual to any party.

ü  Ask each candidate to disclose his party affiliation in terms of his prospectuses which he or she cannot modify during tenure of office on pain of losing his or her seat

ü  Institute all the reforms regarding options for rejecting all candidates etc., discussed earlier

ü  To ensure more meaningful reflection of representation, prescribe two thirds of the votes polled as the criteria for winning  an election

ü  To avoid frivolous candidates, prescribe a cooling off-building up period equal to one full term of five years for those failing to get at least ten percent of the votes polled in a constituency, during which the candidate may not contest an election from any constituency anywhere in the country

ü  Once declared elected, the candidate should be barred from joining or crossing over to any other formation or party in the legislature unless such movement in concert is based on pre-poll agreements between the parties and is fully disclosed to the electorate. Any post-poll changes in affiliation violates then basis of winning the election and should be declared void and the parliamentarian should forfeit his or her seat. As a further measure of restraint, such candidates  should also be disqualified from contesting in any election for a full term of five years

ü  Abolish (with limited exceptions) the “Whip” system in parliament and state legislatures. There should be no restraint on individual members who are representatives of the people of different constituencies to vote on motions according to their conviction in line with the promises they made to the people at the time of election. The exceptions to this general principle should cover matters relating to national security, foreign affairs, defence and armed forces, fiscal matters including budgets, and such other subjects of national priority and importance

ü  Abolish post-poll coalitions among parties to form governments since such arrangements do not have the sanction of the people who elected them on the basis of their prospectuses.

ü  Abolish Common Minimum Programmes and such other acts of convenience and political expediency since they involve dropping some of the promises made to the people which formed the basis of the election. People have not delegated the right to their elected representatives to alter the charter on which they were elected without first getting back to them for a reconfirmation

ü  In addition to broad policy issues covered by party prospectuses, each candidate at a personal level should commit to the constituency in his or her pre-poll promises what he or she would do for the constituency if elected. Failure to fulfill such promises should be sufficient cause for disqualification in subsequent elections

Lokpal and Parliamentary Conflicts of Interest

Lokpal and the Inherent Parliamentary Conflicts of Interest


While the ongoing Lokpal debate has had its twists and turns in recent weeks and months and provided, perhaps serendipitously, a great platform to unite the country as never before in recent decades, one aspect of this complex issue seems to have been overlooked. This has to do with the concept of conflicts of interest in public office. The apparently irreconcilable differences in approach in legislating for the institution of Lokpal between societal advocacies and the government of the day (and indeed virtually the entire population of parliamentarians as evidenced by the ambivalent views expressed by different shades of the political dispensation) can indeed be traced to this phenomenon.
Much has been said about the primacy of parliament and how only the parliament has the exclusive power to legislate and so on. There can be no disagreement on this issue. But while focusing on this obvious position (a no-brainer as many would think), this diversionary tactic has successfully stayed away from the fact that nothing stops the parliament from discussing various alternatives before zeroing in on a final version it can legislate. Listening to divergent views especially on such matters of serious import does not amount to any erosion of parliament’s suzerainty over legislative authority. Compare for example the approach adopted for corporate legislation: the government issued a Concept Paper, invited public comment, appointed an expert committee, drafted a bill which then went through a house committee for further scrutiny and is now awaiting plenary discussion and legislation by parliament. Did anyone feel parliamentary supremacy had been violated because of this listening exercise?
The problem with an issue like the Lokpal is that it seeks to address allegations of corruption at all levels including parliamentarians and that clearly is too close for the comfort of those who are charged with the legislating responsibility. This is the conflict of interest: is it reasonable to expect, in all fairness and given the normal rational human behavior, a group of people to do justice (and be seen as doing justice) to a legislation that could incriminate some or most of them at a future date? Some of the demands of civil society in their version of the Lokpal are easier made (since they are not the affected party) than conceded by the parliament (since they are more than likely to be adversely affected). Provisions in the government draft such as excluding the prime minister while in office, a time limit of seven years, punishments for “frivolous” allegations, exclusion of parliamentarians for matters in the House, control over appointment and removal of Lokpal members, and so on can easily be traced back to the protective instincts normal to anyone in similar circumstances.
How then to get out of this seemingly intractable logjam? Equity and ethics may provide a possible solution. Wherever there is a conflict of interest, it is customary for the conflicted party to formally disclose the conflict and then to recuse itself from any discussion or decision on the matter. Since Lokpal’s footprint of investigative authority extends to all members of parliament, they should all refrain from influencing this particular statute even though eventually it would have to be passed by the parliament. Who should then be drafting the legislation in this case? One could possibly entrust the job to an independent collegium of people, with the mandate that any of the conflicted parties should abstain from discussion and voting on matters concerning it. Typically, this group could consist of all constitutional authorities such as the Chief Justice of the Supreme Court, the Comptroller and Auditor General, the Chief Election Commissioner, the Chair of the Human Rights Commission, the Chair of Rajya Sabha and the Speaker of the Lok Sabha, the Prime Minister, the Leaders of the Opposition in the two Houses, and the Chief of Bureaucracy (such as say the Cabinet Secretary). This group may have an advisory body of experts to assist them. Legislation drafted by this Collegium should be put out for public comment for a reasonable period, say six weeks. Comments received should be discussed and voted upon by the Collegium. All the comments received and their acceptance or rejection with reasons should be posted on the Collegium’s web site immediately after their deliberations.
The final draft as approved by the majority (together with any dissenting notes) should be laid before the two houses which can then debate and approve the proposed bill with or without amendments. The only restraint on parliament would be that the houses may not dilute the bill provisions that directly affect them (because of the conflict of interest) but they can if deemed appropriate, further strengthen such provisions.
This approach will set a salutary convention which can be followed in all cases where the parliament finds itself in the position of a conflicted party. While this can be tried out in case of the Lokpal issue, it can be extended to others as well, for example, matters concerning MPs remuneration, attendance, and so on. In course of time other democracies around the world may even consider this as a best parliamentary practice to be universally followed. India can then be justly proud of setting international standards of parliamentary behavior rather than always “following” others.
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Welcome to my blog! I intend to blog on issues relating to political governance in general and in India specifically. I expect to cover matters relating to constitution, parliament, executive, judiciary, civil society, accountability and transparency, fiduciary obligations, electoral reforms, corruption and self dealing and so on. All with the intent of helping the country realise its full potential and take its rightful and respected place in the comity of nations. I hope the blogs will generate interest and discussion among its subscribers and their friends and followers.