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Aug 17, 2021

Passing Bills Without Discussion Recipe for Bad Laws, Invites Judicial Intervention

Disruption of parliament by opposition MPs is no justification for passing Bills without discussion. Disruption is a political action for which a political solution must be found. It cannot be used to undermine the constitutional process of lawmaking.
A view of the Lok Sabha during the monsoon session of parliament, in New Delhi, Friday, Aug 6, 2021. Photo: LSTV/PTI

This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been updated and republished here. To subscribe to The India Cable, click here.

In the midst of noisy protests staged by the opposition in both houses of parliament, the government introduces Bills and gets them passed within minutes. In normal times, each important Bill is discussed for a few hours before it is passed. Earlier, in fact, most important Bills used to be scrutinised by standing committees before they were brought back to the house to be passed.

The committees’ detailed scrutiny always improves Bills, because the process is rigorous and exhaustive. All stakeholders are afforded ample opportunity to present their views. Experts’ opinions are sought. Committee members deliberate among themselves. Finally, the committee recommends improvements, which are invariably accepted by the government. Experience shows that the government immensely benefits from this detailed scrutiny. A much-refined Bill results in a better law and, in the long run, as Chief Justice N.V. Ramana said recently, less litigation too. The people need better laws, and parliament owes it to them.

Now, think about the alternative scenario ― a Bill introduced in the midst of din and passed within a few minutes. No one in the house knows what the Bill is about. It is passed by a voice vote of the treasury benches. This is such a ridiculously mechanical exercise that everyone, including those who voted, end up losing all respect for the sanctity of lawmaking. Laws are made without the lawmakers knowing much about what laws they have made. Lawmaking is too serious a business to be cavalierly handled by the uninitiated, who want quick passage without scrutiny. This is certainly going to affect citizens because an unscrutinised Bill may retain harmful provisions.

Bills have been passed without discussion in the Indian parliament during the past two decades or more. No one can give credit to the present government for this innovative procedure. The usual defence is that the government has no option. Important Bills need to be urgently passed and in the din, it is not possible to hold discussions. So, the easiest way is to pass them in five minutes or so without any discussion.

This is a curious argument. No democratic parliament in the world passes Bills without detailed discussion and scrutiny. If the house is not in order, no business can be transacted until order is restored. It is the responsibility of the government of the day to create conditions conducive to the smooth running of the House.

We must take a closer look at our constitution and the rules of the house to see whether it can pass Bills without discussion.

Article 107 says that no Bill shall be deemed to have been passed unless both Houses have agreed to it. The word “agreed” has been presumably used with intent. Normally, we agree to a proposal only after discussing it in detail. So this word presupposes discussion.

What Article 107 makes clear is that Bills shall be deemed to have been passed only when both Houses discuss them and then agree to them. The makers of the constitution could have used the word “passed” in place of “agreed”. The word “passed” appropriately refers to the act of passing, namely, the voting etc. But they wanted both houses to fully discuss legislative proposals before agreeing to them. Hence the word “agreed”. Discussion is implied in this word.

Rules for passing Bills have been framed under this Article. Rules require a mandatory three-stage consideration of every Bill. At the first stage, the general principles of the Bill are considered; at the second stage, each clause, and amendments, are considered; at the third stage, there is a final round of observations, after which the Bill is passed.

The scheme of Article 107 and the rules of the house are designed to enable parliament to discuss Bills in detail before both houses agree to them. The constitution of India requires parliament to consider legislative proposals in sufficient detail so that the laws which it passes do not adversely affect citizens due to negligence or lack of oversight. If parliament passes a Bill without discussion and scrutiny, it may end up as a bad law which would be detrimental to citizens.

Disruption of parliament by opposition MPs is no justification for passing Bills without discussion. Disruption is a political action for which a political solution should be found. It cannot be used for undermining the constitutional process of lawmaking. The passing of Bills without discussion in parliament constitutes a violation of Article 107 and the rules of the house, and may necessitate judicial intervention.

P.D.T. Acharya is former secretary general of the Lok Sabha.

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