Voice vote as constitutional subterfuge
CONTEXT Recently the Karnataka Prevention of Slaughter and Preservation of Cattle Bill was passed by the State’s Legislative Council of Karnataka after already being passed by the state assembly.
ISSUE The law was passed by the Council despite the lack of a majority. Despite the demand raised by the opposition members and instead of having a division vote based on actual voting as is usual, the presiding officer just declared the Bill passed by voice vote without any division.
NEW LEGISLATIVE TEMPLATE
- A similar process of legislation was followed to pass the controversial farm laws (by the Rajya Sabha) in September 2020. Hence the legislative process followed for these laws have done away with the actual voting in the Upper House denying the prominence it deserves and setting a new template for bypassing the constitutionally envisaged legislative process.
- Indeed, both laws were first passed as ordinances; and neither of two was referred to the legislative committees despite repeated demand by the Opposition.
MISUSE IN THE NAME OF MONEY BILL
- 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.
- Even the dissenting judge in the Aadhar case has called the misuse of the Money Bill nothing less than “a fraud on the Constitution”. A later constitutional Bench of the Court has since referred the issue of interpreting the Money Bill provision to a larger Bench.
- Also 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.
VALUE OF RAJYA SABHA
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. Thus, Rajya Sabha allows for the representation of the state’s interests without being swayed by popular interests.
DEPLETING ROLE OF RAJYA SABHA
- The repeated questioning by the indirectly elected Rajya Sabha of the wisdom of the directly elected Lok Sabha stands in the way of will of the people. Underlying this common sentiment is a tendency to devalue bicameralism itself.
- The contempt for the legislature has been shown by the executive in India since the mid-1970s, but it became more evident during recent pandemic.
- 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.
- 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.”
- In recent times with rare use of judicial review, the second chamber’s performance of such a role becomes particularly important as it offers the opportunity for a second legislative scrutiny.
- The legislature’s role 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.
Even laws that are unquestionably desirable and necessary cannot be enacted using dubious legislative mechanisms. It is important to recognize and acknowledge the key constitutional role played by the legislature and the crucial role that the upper house plays in this.
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