Parliamentary Committees, Anti-Defection Law, Judicial reforms

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Importance of Standing Committees

Among the standing committees, 24 are departmental committees. 16 under Lok Sabha and 8 under Rajya Sabha. It has 31 members (21 +10). The standing committees consider demand for grants after the budget session is over, they scrutinize bills after it is introduced in either of the houses.

Advantages of standing committees

  • Checks hasty legislation
  • Consultative and consensus building,
  • Not limited by sitting of parliament
  • Being closed door, no political messaging as seen in parliamentary speeches
  • Experience of senior MPs can be used,
  • Easy to pass a bill once through standing committee,
  • In depth and comprehensive scrutiny leading to accountability
  • Association of relevant stakeholders

Drawbacks of standing committees

  • Politicization
  • Smaller tenure of only one year
  • Small research staff prevents constructive suggestions
  • Poor attendance of MPs

Cabinet Committees

  • They are extra constitutional but mentioned in the Business Rules of 1961 They are groupings within the Cabinet for special issues, set up to reduce burden on cabinet and have wider consultation
  • They are of 2 types- standing and ad-hoc, the decision to set up being of PM
  • Non-cabinet members allowed, and decision of committee not final
  • Important committees include Appointments Committee, CCS, CCEA, Political affairs, Parliamentary Affairs, etc
  • New Committee- CC on Investment and Growth- to identify crucial projects with investment more than 1000 crore, sanction and monitor the progress
  • New Committee- CC on Employment and Skill Development

Why is Rajya Sabha needed

RS is formed under article 79

  • Its history goes back to the Govt of India Act 1919 that introduced bicameralism with an upper house. 1935 act strengthened it by making its election by rotation.
  • Rajya Sabha exists for representation of the states in otherwise centralize system of government. But due to large number of regional parties being already represented in Lok Sabha, there is no problem of federalism
  • But even though states are represented, it votes mainly on party lines.
  • It also puts a check on the arbitrary and hasty legislations of the Lok Sabha. However, it can be used a tool to block the government which has the mandate of the people.
  • It also ensures accountability. Eg- amendments to Motion of Thanks by President.
  • Continuity to parliament if the Lok Sabha is dissolved • RS has become the den of failed politicians.
  • Rajya Sabha is a safer place for intellectual people who are not into active politics. But such people can also be injected to the government at various levels
  • These days, Rajya Sabha has more ministers as its members than those of Lok Sabha. This defies the basic principle of representative democracy.
  • A contentious question arises that when the Rajya Sabha represents all states, why not equal representation to all states? Punchhi commission recommended that.
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Dr S Radhakrishnan had said that RS is not only a legislative body but also a deliberative body.

  • While discussing the question of bicameralism in constituent assembly, prof SL Saxena had said that it has been the experience worldwide that the Upper Houses have been a clog in the wheel of progress.
  • in any case, dissolving the RS will be hard because it will be interpreted as the basic structure of constitution
  • Solution- Make the term of Rajya Sabha co-terminus with the elections in those respective states. All Bills should be introduced first in the LS, and only then sent to the RS for a “review” and feedback, but not for passing
  • Article 107 and 108 give almost equal legislative power to LS and RS except for joint sittings. It is completely devoid of any financial powers. Amend them to make it a deliberative body with no legislative power just like legislative councils in states

Anti-Defection Law– 52nd and 91st amendment

  • An MP or MLA is deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote (against party’s whip).
  • Independent members would be disqualified if they joined a political party.
  • Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.
  • 91st amendment abolished the 2/3rd provision.
  • There is no mention of time frame for Speaker to take decision regarding disqualification which is one of the main loophole in the law.
  • Though there is provision of judicial review (Kihoto Hollohan case, 1993) still judiciary is by and large helpless at the pre-decisional stage as no clear role is mentioned in the anti-defection law.

Criticism of Anti-Defection Law

  • Goes against vote of conscience and serious thinking
  • Not applicable to pre-poll alliances
  • Role of speaker- no time frame to decide on issue
  • Stricter penalties not imposed
  • Amendment has facilitated wholesale defections
  • Law not applicable to local bodies

Way forward for Anti-Defection Law

  • Apply to pre-poll alliances
  • no defections 6 months prior to elections
  • Goswami committee and Venkatachalaih commission said power to decide should be with President or Governor in consultation with EC
  • YB Chavan panel had said that defected legislators may not be allowed to take up ministerial posts for 1 year

Misuse of Parliament

  • Role of Speaker- money bill
  • Use of anti-defection law
  • Referring bills to select committee
  • Introducing bills at last moment
  • Getting majority by foul means- abstention, walkouts. Chidambaram calls it Coercive Federalism

Judiciary

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Article 124 to 147 deal with courts.

Public Interest Litigations

  • Concept originated in USA in 1960s. Brought to India by Justice V Krishna Iyer.
  • After SP Gupta vs president of India, 1982, courts opened a new kind of litigation called PIL.

Principles of PIL

  • It was envisioned as an instrument in the hands of the poor and underprivileged who couldn’t afford to knock on the doors of judiciary
  • Article 32 and 226 sufficient to approach courts
  • Removed locus standi
  • If issue has sufficient public interest, anyone can approach courts
  • For enforcing FR, issues of public importance, constitutional interpretation, etc can be taken up.
  • Courts enjoy a degree of flexibility in dealing with such cases

Positive contributions of PIL

  • PIL has become a vehicle to bring social revolution through constitutional means.
  • It has bought courts closer to the disadvantaged sections of society such as prisoners, destitute, child or bonded labourers, women, and scheduled castes/tribes.
  • PIL also become an instrument to promote rule of law, demand fairness and transparency, fight corruption in administration, and enhance the overall accountability of the government agencies.
  • Through PIL, judiciary also initiated legislative reforms and filled in legislative gaps in important areas. For example –Vishaka guidelines on sexual harassment at workplace
  • 2013 PIL by People’s Union for Civil Liberties got a ruling from SC that Indians have right to negative vote through NOTA

Drawbacks of Public Interest Litigations

  • Source of judicial overreach.
  • An unanticipated increase in the workload of the superior courts.
  • Inefficient use of limited judicial resources.
  • Gap between the promise and reality.
  • Abuse of process and frivolous cases. Eg- prashant bhushan case

Solutions of public interest litigation

  • There is a need to strike a balance in allowing legitimate PIL cases and discouraging frivolous ones.
  • One way to achieve this objective could be to confine PIL primarily to those cases where access to justice is undermined by some kind of disability.
  • The other useful device could be to offer economic disincentives to those who are found to employ PIL for ulterior purposes
  • MP passed vexatious litigants law to prevent filing of unnecessary PILs

Issue of a smaller number of judges

  • All High Courts in India, as a whole, have an incredible 38.68 lakhs of cases awaiting disposal. The backlog of all courts including the lower courts is estimated to be around 3 crores.
  • The country has a judicial strength of a mere 18,000, as against the requirement of about 50,000 judges
  • Over that, SC rejected centre’s list of the people who were to be appointed as judges

Judicial reforms i.e needed

  • 31 judges according to Supreme Court (number of judges) amendment act 2008. Why not amend once more to increase?
  • Setting up of Fast Track Courts, Additional Courts and Family Courts.
  • Increasing the ICT capabilities of the courts.
  • Setting up of Alternative dispute resolution centres such as Lok Adalats should be encouraged.
  • Simplification of Laws: Government should work to remove old and dysfunctional elements in legislation by amending Indian penal code, civil procedures code and Indian evidence Act.
  • As suggested by the Law Commission, in its 245th report, a ‘rate of disposal’ method should be adopted in which the number of judges required at each level to dispose of a particular number of cases
  • Increase in time of judiciary and rationalization of the long summer break as suggested by Justice Malimath Committee.
  • For clearing the high number of cases, as a temporary provision, retired judges can be summoned back. Such a provision is present in the constitution.
  • Use constitutional provision of acting and additional judges
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Problems with judiciary

  • Opacity in appointments
  • Removal is a long drawn process
  • Conduct of some judges is questionable
  • Judicial Overreach
  • Contempt of court powers arbitrary.
  • Long pending cases/PIL
  • Not under RTI
  • Less judges

Way forward for Judicial reforms

  • Reduction in frivolous cases to reduce burden
  • The Judicial Standards and Accountability Bill, 2012 could be revived that would have a National Judicial Oversights Committee
  • Making judicial systems accessible and effective for poor
  • Transparency in court proceedings • Bringing judiciary under RTI
  • Setting of All-India judicial services
  • Usage of ICT for better capability. Eg- Integrated Case Management System for e-filing of cases
  • Focus on alternate dispute redressal

All-India Judicial Service

  • It focuses on quality of judges rather than quantity.
  • Appropriate way to recruit the best talent required for fulfilling the role that is demanded of a judge.
  • Currently the subordinate judiciary depends entirely on state recruitment. But the brighter law students do not join the state judicial services because they are not attractive.
  • Current promotions are based on the opaque collegiums system.
  • First Law Commission of India (LCI) in its 14th Report on Reforms on the Judicial Administration, recommended an AIJS in the interests of efficiency of the judiciary.
  • On Swaran Singh Committee’s recommendations in 1976, Article 312 was modified to include the judicial services.

Tribunalisation of courts

• Tribunals are quasi-judicial bodies setup in India by centre or state govts under Article 323A and 323B

Logic behind tribunalisation of court

  • De-burden judiciary
  • Field experts can be employed
  • Can follow principles of natural justice
  • Speedy justice

Problems in tribunalisation of court

  • No proof of lessening burden
  • Mere a court of appeal
  • Lot of pendency with average pendency is 3.8 years
  • Goes against Separation of Powers as tribunals mostly function under executive
  • Huge vacancies

State Legislature

Do we need Legislative Councils?

  • Under article 169, The state assembly has to pass the resolution by special majority and it has to be approved by parliament. A law needs to be passed by the parliament for that effect.
  • Legislative council exist in – Telangana, AP, UP, Bihar, MH, Karnataka, J&K.

Need for Legislative Councils

  • Checks hasty legislations,
  • Non-political leaders can be accommodated,
  • It has scope for graduate and teachers constituency.

Legislative council Not needed because

  • Article 197 – no financial power and only delaying power of 3 months in case of legislations
  • The constitution does not force bicameralism on states.
  • Too much money spent
  • Clog in legislations
  • Failed politicians find place
  • No criticality like Rajya Sabha. Rajya Sabha represents states and has powers to amend constitution. No such powers with legislative councils.