Introduction
Earlier this year, in Association of Democratic Reforms v Union of India, a constitution bench of the Supreme Court (‘SC’) held that the electoral bonds scheme was unconstitutional. To fully grasp the constitutional import of the policy, we must go back to its promulgation. The electoral bonds scheme was enacted through the Finance Bill of 2017. Usually, such Bills only suggest amendments to the Income Tax act. However, the 2017 Bill sought to amend forty different statutes; something that had never been done in the history of the Indian Parliament. Furthermore, the opaque nature of the scheme had immense implications for fundamental rights, specifically the right to information (this right under Article 19(1)(a) also served as the basis for the scheme’s eventual invalidation).
However, none of these aspects of the scheme were discussed by the Lok Sabha. On the contrary, because the scheme had been inserted into the omnibus Finance Bill, little to no time could be spent in discussion. Moreover, debate in the upper house was avoided altogether by the classification of the Bill as a ‘Money Bill’. Not only was this done by the ruling party to avoid debate in the Rajya Sabha (where it did not enjoy a majority), but the very constitutionality of such a classification remains doubtful. In this manner, a sub-constitutional law with potentially harmful consequences for individual rights as well as the electoral process was passed with little to no deliberation. Since then, two national and several state elections have taken place under the electoral framework of this scheme. The scheme was ultimately found to be unconstitutional after four years of pendency in the court, while its opacity was exploited by the ruling party to expand its political and financial presence.
Such lapses in legislative process and convention are not a new development. The recent history of the Indian Parliament has many such examples. For instance, the Farm Laws of 2020 which sought to reform agriculture, India’s largest economic sector. Their introduction was met with intense opposition by farmers and experts alike who condemned them for being against the economic interests of the farmers. Therefore, given the mounting public outcry and the far-reaching implications of the law, one would expect Parliament to devote more time to deliberate. However, the exact opposite happened. After three hours of initial debate, the Bill was rushed through the Rajya Sabha despite multiple members requesting that the debate be extended. Further, requests that the Bill be placed before a standing committee were rejected. The Bills were passed without any further debate.
This recent trend of non-deliberativeness of the legislature can be traced to the current global political movement. Essentially, there exists a tendency of authoritarian and populist governments to attack the structures and processes of constitutional governance, as opposed to a widespread violation of rights. In other words, it is the erosion of the constitutional scheme through a gradual erosion of its processes. In India, it is a political strategy adopted by the ruling party to advance their legislative agenda with little to no opposition. In this context, the rushed promulgation of both the acts was a deliberate attempt to obscure the contents of the Bills, and to limit any debate over the same.
Such erosions of legislative process, used as a tool for advancing political interests, throws up many interesting questions. Can Parliament choose to pass laws using absolutely any procedure? Extending that proposition to its logical extreme, can Parliament choose to eliminate deliberation as a part of the legislative process altogether?
To phrase the present inquiry in more precise and positive terms, this paper is asking whether legislative process may be subjected to the requirements of constitutionality. This is to say, if deliberation is indeed found to be a constitutional requirement, can legislative process be challenged or reviewed on the basis of their deliberativeness? In this paper I limit myself to the examination of the non-deliberativeness of the legislature as a specific ground for judicial review.
I argue that subversions of the political process, in the form of non-deliberativeness, have immense constitutional implications. Thereafter, I claim that the non-deliberativeness of a legislature may serve as a valid basis for judicial review. The social and judicial utility of such a conclusion is immense. By expanding the scope of review to the pre-promulgation stage, courts may review legislative practice against the constitution and improve democratic outcomes.
To this end, I structure my arguments as follows: in the first section, I seek to place the discourse around deliberativeness in the larger body of political process theory. Subsequently, I seek to establish deliberation as integral to the Indian legislative process. In the second section, I argue that deliberation is a constitutional requirement and examine whether a legal basis for the judicial review of legislative process exists. The last section concludes.
Deliberation in Indian Parliamentary Democracy: A Constitutional Perspective
Political Process Theory
Before we examine the status of deliberation in Indian legislative practice, it is important to establish why it is of any relevance at all. To do so, I adopt the analytical lens of Comparative Political Process Theory (‘Political Process Theory’) advanced by Stephen Gardbaum. Particularly, I use Gardbaum’s understanding of what constitutes a political process, in order to situate deliberation within a coherent framework that captures the legislative process as a whole.
The central insight of Gardbaum’s political process theory is that democratic constitutions not only set up institutions, but also specify how, when, and to whom public power will be vested. In other words, in setting up institutions, constitutions also establish the processes and structures through which democratic politics may take place in these institutions. This is the functional aspect of democratic constitutions. Further, these structures and processes are made with reference to certain constitutional values and ideals. For example, in requiring the ratification of half of all state legislatures in matters pertaining to the interests of the states, the framers were ensuring compliance with the constitutional value of federalism. Political process refers to the entire spectrum of processes that regulate democratic politics in a manner that is consistent with the values and norms of the constitution.
By creating such a dialectical relation between process and principle, the logical corollary of the political process theory becomes that the observance of political processes is essential for securing certain constitutional outcomes. In other words, the integrity of political processes, and their constitutionality, are directly related. If there is a lapse in political process, then that impliedly means that a constitutional ideal has remained unfulfilled. This is the most important feature of political process; it is indispensable insofar as its observance is necessary for the realization of a constitutional value.
Therefore, the first and most fundamental assumption of this paper is that in failing to fulfill political process, there is a consequent constitutional failure. In the following parts of this section, I seek to illustrate that deliberation is an essential feature of the Indian political process. Further, I argue that deliberation is essential to ensure certain constitutional outcomes.
Deliberation and the Indian political process
At the outset, the very basis of a parliamentary government is free discussion and debate. Indeed, Kashyap in his exhaustive treatise on Indian parliamentary procedure notes that the very purpose of the rules of parliamentary procedure is to facilitate deliberation and decision-making. Kashyap also notes that the deliberativeness of Parliament is integral to its representational and advisory roles. It is through debate that Parliament is exposed to public opinion and interest and is therefore reminded of its obligations. Thus, it would not be unfair to state that deliberation constitutes the core of the Indian political process.
This is further evident if one were to look at the history of parliamentary procedure itself. The parliament’s rules of procedure provide for separate days for the discussion of Finance and Budget Bills exclusively. Further, the legislature amended its procedure to provide for additional time for the detailed discussion of important Bills and resolutions. Therefore, the principle of deliberation finds clear expression in parliamentary procedure.
Indeed, the present trend of non-deliberativeness is an anomaly in Indian parliamentary practice. This regressive trend largely correlates with the emergence of populist and authoritarian rule in the country. While in the 1960s, the Parliament sat for an average of 120 working days in a year, in the past 10 years alone that number has fallen to 70. Further, even in these 70 days that Parliament is convened, a large chunk of time is lost to disruptions. The percentage of time discussing the contents and implications of legislation has reduced by over 38% since Independence. Thus, it is not that the Indian Parliament has always been a non-deliberative parliament; it is quite the contrary. The Indian constitution is facing a new challenge; one that undermines it through process and not substance, but undermines it, nonetheless.
The Author is a second-year student of National Law School of India University, Bengaluru.
Part II can be found here.
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