By Rishika Pardikar and Priyanka Pulla
The following is the transcript of the video published here: https://www.youtube.com/watch?v=yKU8qA4ClZU&ab_channel=Policytalk
- Go to Infographic 1: Flowchart of the lawmaking process
- Go to Infographic 2: Table of rules, guidelines and traditions broken by the BJP government
Transcript
Priyanka: Hi, we are Priyanka and Rishika, and we are back with a follow-up of our earlier video on how crucial laws were amended without regard to established parliamentary processes in the monsoon session of the Indian parliament. This session was held in July and August, last year.
Rishika: You can check out our previous video, linked in the description below, to understand how amendments brought to crucial environmental and health-related laws in the monsoon session were problematic – both in terms of what the amendments entailed and the undemocratic manner in which they were rushed through. They relate to the Forest Conservation Act, the Biological Diversity Act and the Jan Vishwas Act.
Priyanka: Today, we want to go a little deeper. Our research in the past few months, and the proceedings of the parliamentary special session in September and the winter session in December, gave us further insights into how our parliament works.
What we found is that Indian parliamentary processes are not codified well enough to uphold democratic principles. This means that lawmakers didn’t always translate parliamentary processes into hard-and-fast rules, with a legal basis. Instead, several important processes remained optional — in the form of guidelines from the law ministry and traditions, followed merely by custom.
Rishika: The assumption behind not codifying all parliamentary processes seems to have been trust that MPs would use the principles of democracy while interpreting guidelines and traditions.
And MPs have honoured this trust often enough. For instance, requiring public consultation before introducing important bills into the parliament has never been a rule. And yet, historically, ministries have conducted these consultations because it is a part of democratic functioning.
Priyanka: So, what do these parliamentary rules, guidelines and traditions do? They tell MPs how to carry out important functions of the parliament, such as law-making and seeking information and accountability during question hour.
This brings us to the core point of our current episode: the ruling BJP government has been breaking rules,and interpreting long-standing guidelines and traditions to further its own interests. This has led to several laws being rushed through both houses of parliament without scrutiny.
Rishika: For instance, look at this part of the lawmaking process, where the nodal ministry, which is the ministry that drafts the law, is introducing a draft law into Parliament. A rule that governs this part is for the nodal ministry to circulate the draft among MPs two days before introduction.
Like we said, circulation to MPs two days before introduction into parliament is a hard and fast rule. Its legal basis comes from the fact that it is made under Article 118 of the Indian Constitution.
Now focus here, where the parliament is sending a draft law for scrutiny to committees. This practice is merely a tradition.
Traditions, as we said, are optional, because they are followed by custom. Even the practice of suspending a Question Hour only with the unanimous consent of MPs is a tradition.
Finally, here the ministry is putting out the draft law for public consultation. This is a guideline, described in a document called the Pre-legislative Consultation Policy.
As we mentioned earlier, this guideline is optional, but carries more weight than traditions, because it comes from the law ministry. Also, the Pre Legislative Consultation Policy says that if the nodal ministry wants to waive the policy, it must record its reasons in a note to the cabinet.
We will share this table with you in the description of our video. You can view all parliamentary rulebooks, guidelines and commentary texts in the source section.
Priyanka: Now, let’s start with the first step of the lawmaking process, which is when the nodal ministry decides to make or amend a law. This ministry can have various motivations for bringing in a new law or amending an existing one.
It could be that a court judgement required the government to write or amend a legislation. For instance, the impetus for the Personal Data Protection Bill came from a landmark Supreme Court judgement which upheld the right to privacy as a fundamental right. As part of the judgement, the court also told the government to write a data protection law.
There can also be a political agenda behind new bills. So for instance, the BJP in its 2019 election manifesto said they would abrogate Article 370, which gives a special status to Jammu and Kashmir. Then, after the BJP got re-elected, they brought in a bill to do exactly this.
Anyway, regardless of motivation, the nodal ministry begins drafting a white paper that explains the background of the bill. Once prepared, the ministry sends the white paper to the legislative department under the law ministry which writes the draft law.
Rishika: The draft law is then put out for public comments as recommended by the Pre-legislative Consultation Policy. This Policy was introduced in February, 2014. The thinking behind it was that new laws are often complex and contentious. So, it is important to build a consensus among stakeholders impacted by such laws while drafting them. This is what the policy aims to do.
Among other things, this policy explains how public consultations should happen: the nodal ministry shouldn’t just publish a draft of the law, the policy says, but should also share it proactively with people and the draft must remain in public domain for at least 30 days.
What’s more, the policy says, when the proposed legislation affects a specific group of people, take for instance the forest bill which affects forest-dwelling communities, it should be given wider publicity through print and electronic media. Other means to ensure wide circulation could include translations into local languages to ensure it reaches affected communities.
Priyanka: The next step is where the nodal ministry considers the public comments and also consults with other ministries whose work could be impacted by the bill. In the case of the forest bill, the relevant ministries include the tribal affairs ministry, rural development ministry, and the road transport ministry.
After this, the legislative department under the law ministry finalises the draft law. This is presented before the cabinet. If the cabinet approves it, the draft law is circulated to MPs before introduction in the parliament.
Risihka: The circulation of the draft law among MPs is a very important step because MPs cannot knowledgeably discuss the bill before they have read it.
Once the bill is in the parliament, it is sent to parliamentary committees for scrutiny. One reason for this step is that not every MP has the expertise to scrutinise the nitty gritties of technical laws. As Chakshu Roy from PRS Legislative Research, told us, and we quote:“when you have a discussion in a large chamber with multiple people sitting on a technical subject, the discussion is more at a broader level, maybe at a principled level, rather than at the nuts and bolts kind of level.”
So, to have a nut-and-bolts kind of discussion, we need specialised committees.
Secondly, MPs may not be comfortable voicing their views on the law in the public forum of the parliament, especially if these views don’t echo the stand taken by their party. They are far more likely to speak candidly, and prioritise public interest, if they have a confidential safe space to do so.
Parliamentary committees serve both these purposes: they are made up of experts on the subject of the draft law, and the deliberations take place behind closed doors.
After the parliamentary committee report is ready, it is presented before both houses of parliament along with the bill. MPs can use this report to debate on and vote on the bill. Once voting is complete, the bill moves on to the next house, and then to the president for approval.
Priyanka: Now that we know how the lawmaking process works, let’s get into some examples of how the BJP flouted the rules, traditions and guidelines that govern this process.
Rishika: Our first example has to do with the BJP flouting an important guideline, namely the Pre Legislative Consultation Policy. This happened during the monsoon session of 2023, when the BJP introduced the Forest Conservation Amendment bill.
As we mentioned earlier, the Pre Legislative Consultation Policy helps in building a consensus on contentious bills that impact many people.
The Forest bill was one such bill, which made it easier to divert forest land by narrowing the legal definition of what a forest is. The impact of this bill on people is huge – tribal communities who live in forests and draw their livelihood from forest resources would bear the brunt of it .
So, if the policy was followed, the ministry would have done a thorough consultation with these communities and also other experts, like conservationists and environmental lawyers. This did not happen.
And yet, no rules were broken, no laws were breached because the Pre legislative Consultation policy is only a guideline.
The BJP government has flouted this policy elsewhere too. They failed to follow it while drafting two other laws, namely the Jan Vishwas bill and the Biological Diversity Amendment Amendment bill.
The Jan Vishwas bill amended India’s key drug law, the Drugs and Cosmetics Act, to remove jail-terms for the manufacture of poor quality drugs.
Such a decriminalisation impacts all Indians, who can be hurt from consuming poor-quality drugs. This means the government should have publicised the bill very widely and consulted expert groups, like health activists, while drafting the amendment. This didn’t happen.
As for the Biodiversity bill , it exempts certain persons (like those in the AYUSH industry) from sharing profits from accessing biological resources,, like herbs, and associated traditional knowledge, with local communities. Since this directly affects such communities, the environment ministry should have consulted them on the provisions of the bill. This too did not happen.
Priyanka: Our second example is about the BJP flouting an important parliamentary rule, which requires draft laws to be circulated among MPs two days before introduction into the Rajya Sabha.
The BJP flouted this rule while amending the National Capital Territory of Delhi Laws (Special Provisions) Second Act in the 2023 winter session of the Rajya Sabha. The goal of this amendment was to extend protection to unauthorised development, like colonies, slum dwellings, and schools – in and around Delhi — by three years.
As we said earlier, this rule exists because MPs cannot knowledgeably discuss a draft law and vote on it unless they have had enough time to read through the law. Such circulation beforehand also allows MPs to vote against the introduction of draft laws into the parliament. There could be legitimate reasons to do this.
For instance, let’s say a member wants to introduce a bill on a subject which is only on the state list of the Constitution. For example, police and public order are on the state list.
This means parliament may not have the power to make laws on these subjects – it is up to the state government to do so. MPs can cite this as a reason to block the law before introduction itself.
The BJP has broken the rule on circulating bills before introduction earlier too. A previous instance in which the BJP government completely sidestepped this rule was while introducing the Jammu and Kashmir Reorganisation Bill in 2019, a bill which sought to break the state of Jammu and Kashmir into two union territories.
As Maansi Verma, a legislative policy expert at the parliamentary watchdog body Maadhyam writes, the BJP government did not even list this bill before introducing it into the Rajya Sabha on 5th August 2019, let alone circulate it two days in advance. The chairperson, Venkaiah Naidu, merely waived off the need for circulation, citing the urgency of the bill.
Verma argues that this was a clear violation of parliamentary rules. Her reasoning? The rule only allows the Rajya Sabha chairperson to tweak the 2-day prior-circulation period to a shorter period, say 2 hours. It does not allow the chairperson to waive off circulation altogether, as the BJP did in both 2023, with the National Capital Territory bill and in 2019, with the J&K bill.
Rishika: Our next example is about the tradition of sending bills to committees, for further scrutiny, after they are introduced into the parliament. There are two types of committees: one is called a Departmentally Related Standing Committee, which is constituted every year. We’ll refer to it as a Standing Committee from now on.
The other is an ad hoc committee, called a Joint Parliamentary Committee (or a JPC). This is created de novo, meaning it starts fresh, for the express purpose of scrutinising the bill. It also ceases to exist once the job is done. And a longstanding tradition of the parliament has been that when a standing committee relevant to the topic of the bill exists, the bill is sent to that standing committee, rather than creating a new JPC.
The speaker flouted this tradition by sending the Forest bill to a JPC, when a Standing Committee for the purpose already existed, that is the Standing Committee on Science & Technology, Environment and Forests.
This decision, to send the bill to a JPC instead of the standing committee ,was vigorously protested by Jairam Ramesh, former environment minister who chaired this standing Committee.
And the JPC (incidentally headed by a BJP MP) which assessed the forest bill ended up giving it a clean chit, with zero recommendations for changes. It did so despite receiving many objections from other ministries like tribal affairs and panchayat raj, some state governments from the northeast, and also conservationists, environmental lawyers and tribal groups.
Why are standing committees preferred to JPCs? For one thing, Standing Committees oversee particular ministries, and so have more expertise on subjects related to that ministry.
As MP from Trinamool Congress Jawahar Sircar puts it, their members tackle issues related to this ministry day in and day out, some of the Standing Committee members have been on the committee for years, and have grilled the ministry several times earlier on similar themes. This means that Standing Committee members are likely to be familiar with the subject and the story behind the bill itself.
Today, we have 24 such specialised Standing Committees, like a committee on “health and family welfare”, a committee on “petroleum and natural gas”, and a committee on “Science & Technology, Environment & Forests”. So, many bills introduced into the parliament will likely have a relevant standing committee. And the need to create a JPC arises only in some circumstances.
According to Maadhyam’s Verma, these circumstances could include situations when the relevant Standing Committee gets held up with other duties, like scrutinising the annual reports of the ministry they are affiliated with. In other words, they simply may not have the time to deliberate on all bills in their area of expertise
All experts we spoke to agreed, broadly, that when a Standing Committee relevant to the topic of the bill exists, then this standing committee is best placed to scrutinise the bill.
But this practice of sending bills to standing committees is only a tradition. It is not codified as a parliamentary rule.
The BJP government has sent several other bills to JPCs, when relevant standing committees exist including the Biodiversity bill.
In fact, escaping scrutiny by any committee, and not just standing committees, has been a trend with the BJP since 2014. In the current 17th Lok Sabha and the previous 16th Lok Sabha, far fewer bills were referred to committees compared to earlier times. According to PRS Legislative Research, only 16% of the bills went to committees in the 17th Lok Sabha and 27% in the 16th. Now compare this to 60% in the 14th, 71% in the 15th lok sabha.
Priyanka: Our final example has to do with the Question Hour. One of the important parliamentary rules is for the Question Hour to be held in every session, unless the speaker suspends it.
This rule is accompanied by a longstanding tradition, that the Question Hour is only suspended with the unanimous approval of MPs. In other words, even if the speaker has the power to suspend the Question hour unilaterally, he or she has rarely done so.
Historically, the speaker has exercised this power of suspension without unanimous approval, only in unusual circumstances. One such circumstance was the 1975 emergency, a dark time for Indian democracy.
Despite the existence of this tradition, in September last year, the BJP government suspended the question hour while calling for a special session of the parliament. A special session is one that is held outside of the conventional Budget, Monsoon and Winter Sessions. In its notice, the government said there wouldn’t be any question hour in both Lok Sabha and Rajya Sabha.
No reasons were given for this decision and the unanimous consent of MPs was not taken.
Why is the question hour important?It is one of the few ways for the parliament to hold the government to account. As opposition MPs argued in a letter to the speaker when the BJP suspended the question hour earlier, “One of the main functions of Parliament in a democracy is to seek accountability from the executive on behalf of the people and Parliament.
Questions are the most potent tools in that regard.
There exists no other platform like the floor of the Parliament for the people to question the executive, through their representatives.”
The last time the BJP suspended the question hour was in 2020. At that time, they cited an oddly flimsy reason – that due to the COVID pandemic, the parliament needed to keep the number of people in it to a bare minimum, and to maintain social distancing.
The reason we call this justification flimsy is that the government proposed that a total of 33 bills be considered in the same session. So, the Covid pandemic was a good enough reason for it to suspend question hour, but not good enough to hold back the bills they wanted to push.
Anyway, eventually, the Lok Sabha speaker allowed only written questions to be asked in that session, and no question hour was held.
Rishika: The examples we discussed tell us why rules, traditions and guidelines are all equally critical to the functioning of the parliament. Yet, rules carry a greater weight. When they are broken, MPs can raise this issue with the speaker (this is called raising a point of order).
They can even bring in a no-confidence motion against the chairman/ speaker of the house for not following rules. This is what 46 opposition MPs did after the passage of farm bills in 2020.
Finally, MPs and citizens can even challenge the breaking of parliamentary rules in court, as AAP member Raghav Chadha did in 2023, when he was suspended from the Rajya Sabha. Raising these issues and challenging them in court would have been harder to do with guidelines and traditions.
Priyanka: This is why it is important to turn crucial parliamentary processes, like sending bills to committees, into mandatory rules. In fact, a few experts (including Maadhyam) have come together to push for changes exactly like this.
They have drafted a manifesto titled ‘People’s Demands to Make Parliament Great Again’, which recommends several such reforms. These reforms would allow MPs to hold the executive accountable, and prevent further democratic backsliding.
You can see the manifesto in the link below the video. It is also open to further public consultation.
Rishika: If you’re wondering why such reforms haven’t happened yet, a big reason is lack of political will. In one of her papers , Maadhyam’s Verma argues that it is not in the best interests of political parties – be it ruling parties or the opposition – to carry out such reforms. This is because the current vagueness tends to benefit whichever party is in power. And this is a status quo everyone wants to maintain.
Priyanka: Is there any answer to this problem then? We think that change can come if citizens understand the need for parliamentary reforms and seek such reforms from their MPs. This was one big motivation for us to track these parliamentary sessions.
Rishika: We were shocked to see the manner in which bills were pushed through. Most of the time this happened when the opposition was not in the room, because the MPs either boycotted the session to highlight concerns about Manipur, or were suspended en masse.
We wanted to understand what made it so easy for the BJP government to pass amendments to crucial legislations, without wider deliberation – either with the public or with opposition MPs. And we found that parliamentary processes were so poorly codified that members could break them with almost no consequences. This is more so in cases where the ruling government enjoys a strong majority in both houses of parliament. Properly codified processes would make it easier to uphold principles of a deliberative democracy where the majority cannot run roughshod over the minority.
And there is reason to be optimistic: reforms for better parliamentary functioning have been happening over the years, even if slowly.
Priyanka: Our hope, with this video, is to focus on the urgent need for such reforms and for citizens to push for them. The people who have the greatest stake in parliamentary reforms are, after all, not political parties, but us, the common voters. The codification of parliamentary procedures, then, is a cause every one of us must fight for.
Thanks to our sources:
- Maansi Verma, founder and legislative policy researcher at Maadhyam
- Chakshu Roy, legislative and civic engagement initiatives at PRS Legislative Research
- Itika Singh, program manager at PRS Legislative Research
- Jawahar Sircar, Rajya Sabha MP, member of All India Trinamool Congress
- Video edits and graphics: Yash Nene
- Sansad image illustration: Paramvir Singh
Infographic 1
Flowchart of the lawmaking process
Infographic 2
Table of rules, traditions and guidelines broken by the BJP government
| Rules | Guidelines | Traditions |
|---|---|---|
| Hard and fast | Optional, but recommended | Optional |
| Eg: Circulate draft laws among all MPs before introducing into the parliament | Eg: Public consultation | Eg: Sending draft laws to parliamentary committees, Requiring unanimous consent of all MPs to suspend Question Hour |
| Eg of rule violation: 1) National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Bill 2) J&K Reorganisation Amendment Bill | Eg of guideline violation: 1) Forest Conservation Amendment Bill 2) Jan Vishwas Bill 3) Biodiversity Amendment Bill | Eg of tradition violation: 1) Forest Conservation Amendment Bill 2) Biodiversity Amendment Bill 3) Only 16% bills sent to standing committees since 2019 4) Special Session 2023 5) Monsoon Session, 2020 |
| Source: Directions by Speaker, Lok Sabha and Rules of Procedure and Conduct of Business in Lok Sabha, Directions by the Chairman, Rajya Sabha, Rules of Procedure and Conduct of Business in the Rajya Sabha | Source: Pre Legislative Consultation Policy | Source: Practice and Procedure of Parliament by Kaul and Shakdher |
In sickness and in health 