By Vivek K Agnihotri
During the 82nd All India Presiding Officers Conference held in Shimla from November 17-18, 2021, M Appavu, Speaker of the Tamil Nadu assembly, questioned the delay in president’s approval to legislation reserved for his consideration. He called for setting a time-bound framework for deciding such matters. Is legislation delayed, legislation denied? Yes and no.
It brings to the fore the larger issue, debated in the national fora time and again—delays as well as the so-called unseemly haste in getting legislation through various procedural stages prescribed by the Constitution and the rules and regulations of various legislative bodies.
The procedure prescribed for the passage of Bills is necessarily cumbersome in order to ensure adequate consideration of them. As a matter of fact, the seeding of the second House of the legislature is premised on the fact that passing legislation in the heat of the moment is not good. During the debates in the Constituent Assembly on the establishment of the second chamber (Council of States/Rajya Sabha), N Gopalaswami Ayyangar, the most vociferous supporter of the idea of the second chamber, said that it would ensure “dignified debates” and would “delay legislation” until “the passions of the moment have subsided”. He added that the second chamber is “an instrument by which we delay action” and would also give an opportunity to the “seasoned people” who bring their learning to the House.
But delays in legislation have been found to be frustrating not only by the Opposition but the Presiding Officers as well. On June 21, 2019, when the Rajya Sabha had its first full meeting after the formation of the 17th Lok Sabha, Venkaiah Naidu, the vice-president, had observed that at the end of the previous (248th) session of the Rajya Sabha, a total of 55 Bills were pending consideration there. After the lapsing of the 22 Bills, the pendency in this House stood at 33 Bills. Three bills were pending for more than 20 years, six for between 10-20 years, 14 bills for between 5-10 years and 10 for less than 5 years. The oldest pending bill—for over 32 years— was the Indian Medical Council (Amendment) Bill, 1987. It certainly was not a happy situation.
On the other hand, speeding up the delivery of legislation is also not without its weighty critics. On August 15, 2021, speaking on the occasion of the 75th Independence Day celebrations held at the Supreme Court lawns, Chief Justice NV Ramana lamented the “sorry state of affairs” of lawmaking and parliamentary debate in the country. He observed: “We see a lot of gaps in legislation, there is a lot of ambiguity in making laws.” In the absence of quality debate, courts are unable to fathom the intent and object of the new laws, triggering litigation and causing inconvenience to the stakeholder.
This was indeed a scathing indictment of rushing through legislation and hurrying its process and procedures. For example, the monsoon session, 2021, in the course of its 20 sittings, was witness to the Lok Sabha passing 22 Bills while the Rajya Sabha approved 21 Bills, including two money Bills. One of the Bills passed related to a constitutional amendment. Six of the Bills passed by the two Houses pertained to ordinances promulgated by the president in the preceding intersession period. Only one of the Bills passed had been considered by a Department Related Parliamentary Standing Committee.
Similarly, in the first session of the 17th Lok Sabha and the corresponding 249th session of the Rajya Sabha, during June-August 2019, 36 Bills were passed by the Lok Sabha and 32 Bills by the Rajya Sabha in the course of 35 sittings. Some leaders of the Opposition in the Rajya Sabha presented a letter to the Chairman of the House on July 25, 2019, objecting to the “hurried” passage of Bills without adequate scrutiny in the ongoing Parliament session. Again, what was perhaps a rarity, if not a singularity, in 2016, both the Houses on the same day, passed the Rajendra Prasad Central University Bill. Even President Pranab Mukherjee reportedly gave his assent to it on the same day.
What is perhaps at the root of this conundrum is the power of the president as well as governors to promulgate ordinances by which the executive assumes the legislative powers of the legislature. As a Bill replacing an Ordinance has to be approved by the Parliament within six weeks of its reassembly, the reference of the Bill to the Standing Committee is either given a go-by or the matter is hustled through. Normally, the Standing Committee is given three months to report and usually takes much more time than that. The executive, whenever it is confident of mustering the requisite majority in both the Houses and wants to exhibit its urgency in tackling a political or legislative problem, goes ahead with promulgation of an Ordinance.
Let us take the example of the three Farm Laws—the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 and the Essential Commodities (Amendment) Act, 2020. These Acts, initially promulgated as presidential ordinances on June 5, 2020, were passed by Parliament in September 2021 and received the president’s assent on September 27, 2020.
The farm laws form part of the Atmanirbhar Bharat package of the government and offer three basic freedoms to farmers. The Promotion and Facilitation Act allows farmers to sell their harvest outside the notified APMC mandis without paying any state taxes or fees. The farmers can sell their produce to anyone. They need not sell it at places designated (called mandis) by the state government.
The Empowerment and Protection Act facilitates contract farming and direct marketing. It gives freedom to make forward contracts, transferring the risk to businesses. In contract farming, the company (or individual) enters into agreement to buy the produce at a specified rate. There is no compulsion to enter into a contract.
The Essential Commodities (Amendment) Act, 2020 deregulates the production, storage, movement and sale of several major foodstuffs, including cereals, pulses, edible oils and onion, except in extraordinary circumstances. Freedom from the constraint of stocking limit would act as an incentive for setting up cold storages, among others. It thus permits free movement of produce from one state to another without any restrictions or stock limits.
On the face of it, these are commendable legislations. But even a legislation carefully drafted, with the best of intentions, could prove to be politically disastrous if fast-tracked, as demonstrated by the strategic withdrawal of the three farm laws by the government.
Thus, occasionally, one has to take one step backward in order to move three laws forward. Sometimes, going back to the drawing board too could be edifying because the dividing line between chutzpah and hubris is very thin. However, it needs to be flagged here that the making of laws is the domain of the legislature and deciding on their constitutionality is the realm of the judiciary; the Indian constitution does not provide for popular referendum on legislation, as do some other constitutions such as that of Switzerland.
—The writer was Secretary, Parliamentary Affairs from 2003-2005 and Secretary General of Rajya Sabha from 2007-2012