Rishit Soni & Akshay Sriram*

The Indian Parliament in the Winter Session last year witnessed a record number of suspensions like never before. In the meantime, various integral laws were debated and passed by the Government in the absence of several opposition MPs. The overwhelming rhetoric in this backdrop was the ‘unconstitutional’ tag being attached to these legislations by several journalists and critics, who demanded an inquiry into the procedural validity of such enactments. Through this piece, the authors argue that such enactment of legislation is not only procedurally valid, but also constitutionally sanctioned and approved, where an extraordinary situation would lead the Parliament to prioritize legislative business over due deliberation. The authors arrive at this conclusion by applying the judicial review standard of procedural illegality.

Introduction

In 1997, when the Legislative Assembly of Uttar Pradesh degenerated into a pandemonium, the Session saw everything but legislative deliberation. From members hurling microphones at each other to ministers running for cover, the incident confirmed the phenomenon of parliamentary disruptions becoming the norm of the day. The recent Winter Session of the Parliament seems to have bought into this rhetoric, when about 146 MPs were suspended from the Parliament for disorderly conduct. This created a record high tally of suspensions to have ever taken place. The disruption of parliamentary proceedings after much commotion on the issue of the Lok Sabha security breach on December 13, when 2 individuals jumped into the house and discharged gas canisters, formed the lynchpin of these suspensions. This creates crucial concerns over the upcoming Budget Session as well, occurring alarmingly close to the 2024 Lok Sabha General Assembly elections, raising doubts over the outcomes that it may bring to the overall economy in the face of the final stages of the 17th Lok Sabha.

In much of a contrast, the Winter Session was unusually productive after the suspensions, with the passage of all ten newly introduced bills along with seven pending ones. Notable legislation that was passed include the three Bills resulting in a complete overhaul of the existing Indian Criminal Law framework along with the Telecommunications Bill, 2023 which restructures the regulatory framework of the Telecom sector. Undoubtedly, these legislations have ambitious aims in bringing about supposed structural reforms, placing an increased perception of importance in their scrutiny. In this context, strong allegations of ‘democratic backsliding’ have been raised and the validity of these legislations have been questioned. The overwhelming perception has been against the passage of these laws on grounds of procedural invalidity due to the absence of many MPs and the subsequent lack of democratic deliberation. However, the authors would like to rebut this perception. In this article, we argue from a purely constitutional perspective that the laws passed were procedurally valid and constitutionally sanctioned, especially considering the context of the Winter Session. Firstly, the article establishes the test of procedural illegality in the judicial review of legislative process while basing our assertion for the Constitutional sanction behind suspension on these concepts. Furthermore, it weighs the ideas of legislative business and scrutiny in the background of protecting the parliament’s institutional ‘self-preservation’. Finally, we conclude by analysing the inherent objective of legislative scrutiny and the crucial difference between deliberation and disruption.

Judicial Review of Legislative Process

The present submission will elaborate and focus on the direct judicial review of legislative process, as inspired from and mentioned in the work of Jahnavi Sindhu and Vikram Narayan, in order to reach its conclusion. Article 122 underlines the scope of examining the validity of procedure exercised in the Parliament and reads as:

“122(1): The validity of any proceedings in Parliament shall not be called in question on ground of any alleged irregularity of procedure.”

In the past this has prevented the Supreme Court (‘SC’) from encroaching upon such matters. However, recently it has been successful in carving out a niche for itself to directly review the procedural validity of a session. In Raja Ram Pal vs Hon’ble Speaker Lok Sabha(‘Raja Ram Pal’), the SC has held the following:

“[…] the court will decline to interfere if the grievance brought before it is restricted to allegations of-irregularity of procedure. But in case gross illegality or violation of constitutional provisions is shown, the judicial review will not be inhibited in any manner.”

Thus, the SC can review procedures if ‘procedural illegality’ is found to be present. The judgement in Subhash Desai vs Principal Secretaryexplains what is meant by this term:

“The distinction between irregular procedure and illegal procedure must be drawn based on the nature of the procedure which was violated, and the impact of such a violation on democratic ideals.”

Thus, the only method of exercising judicial review over parliamentary procedure is by proving substantial procedural illegality through violation on democratic ideals. The hypothesis of this article is to prove the lack of power to judicially review the procedure adopted in the Winter Session. For the same, the test of procedural illegality has to be used along with utilisation of constitutional ideals to assess the validity of the procedure adopted.  

Based on the aforementioned discussion of examining the validity of legislative business based on procedural illegality, the article shall argue that the legislative business exercised by the Parliament in context of the recent Winter session is legally and constitutionally valid.The argument extends on the idea that the legislative business conducted during this particular Winter Session is sanctioned and advocated by the Constitution, while not losing sight of the peculiarities that arose in the session itself.

The Constitutional approval of Suspension

Article 118 of the Constitutionallows each house of the Parliament to create rules of procedure and conduct of business, subject to the Constitution. Both the Lok Sabha and Rajya Sabha Rules provide for suspension of members who disregard the authority of the House through the persistent and wilful obstruction of the business thereof. It can be argued that the origin (or one of them) of the members of Parliament’s right to conduct debate and deliberation in the House depends on their freedom to speak within the Parliament itself. However, the SC held in the Raja Ram Pal case  that such freedom of speech does not originate from the one guaranteed under Part III of the Constitution, but through Article 105(1).

Under the said provision, the freedom of speech in Parliament is subjected to the ‘standing rules and orders’ of the two houses. Upholding the validity of such curtailment in the context of standing rules and orders, the SC in Alagaapuram R. Mohanraj vs T.N. Legislative Assembly had the following to mention about 194(1), which is the State Legislature corollary of, and thereby, mutatis mutandis to, Article 105(1):

“[…] Freedom of speech is a constitutional right, but is restricted in the premises of a legislature […] No doubt when a legislator is prevented to participate in the proceedings of the House during the currency of the membership by virtue of some proceedings taken against such a legislator, there would be a curtailment of the legislator’s constitutional right of free speech in the House of which such legislator is a member. But such curtailment is sanctioned by the Constitution in view of the fact that such a right is made subject to other provisions of the Constitution, the Rules and Standing Orders regulating the procedure of legislative bodies.”

Since the power to suspend members originates from the standing rules and takes place during their membership through proceedings against such member, it can be said that suspension of members is not only constitutionally valid, but also receives Constitutional “sanction” as the SC puts it in the above judgment. Thereby, it is required by the Constitution to protect the ideals it wishes to pursue. Thus, viewing suspension just as a phenomenon, it can be said that suspension of members does not indicate procedural illegality since it does not violate democratic ideals. On the contrary, it promotes and protects democratic as well as constitutional ideals, such as that of smooth functioning of the legislature.

However, the authors note that the argument of suspensions being Constitutionally sanctioned, though providing a necessary base for proving the procedural validity of the business conducted, cannot be a sufficient answer to the peculiar scenario created the Winter session.In light of the huge number of MPs suspended, alongside the critical nature of legislative business transacted, the concern has been the Parliament’s speed in conducting its business without any due debate and deliberation. The perception is that this puts the transaction of legislative business over and above effective legislative scrutiny, leading to a “violation of democratic ideals”. In the next section, the article argues keeping in mind the nature of the incidents that occurred, that a situation arose where the dichotomy between conducting legislative business and effective legislative scrutiny led to the former being necessarily prioritized over the latter.The article shall highlight how the law mandates the former’s prioritization, thereby nullifying any claims on the presence of procedural illegality.

Removing the ‘parley’ in Parliament: A case for self-preservation

The authors argue that though legislative scrutiny is as important, if not more, than conducting legislative business, it is only in a situation of the institution’s self-preservation where one supersedes the other, as has been the case in the present situation. the Madhya Pradesh High Court in Yashwant Rao Meghawale vs MP Legislative Assembly declared the right to self-preservation as the legislature’s inherent power to ensure proper functioning and orderly conduct of business. Furthermore, the court in the Raja Ram Pal case, borrowing from the common law defined contempt as:

“[…] any act or omission which obstructs or impedes either House of Parliament in the performance of its functions or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results even though there is no precedent of the offence.”

Holding the punishment for contempt as the Parliament’s right to promote self-preservation, the court defines self-preservation as:

“[…] the right to prevent acts, which, in and of themselves, inherently obstruct or prevent the discharge of legislative duty or the duty to do that which there is an inherent power to compel in order that legislative functions may be performed.”

Therefore, the courts in these judgements have held that legislative duty takes precedence over legislative deliberation and scrutiny when the matter of the Parliament’s self-preservation, or its preservation as an efficient institution comes into question vis-à-vis its duty of conducting business.

The article argues that due to the peculiar nature of the incidents that occurred in the Winter Session, alongside its political context upon, the extreme disruption created in Parliament created a situation where its legitimacy as an efficiently functioning institution was at stake. The Parliament’s productivity since the beginning of the annual financial year 2023-24 has been poor, to say the least. The Monsoon Session was marred with disruptions and walk-outs staged by members over several contentious issues such as the situation in Manipur which has increasingly been in the limelight, resulting in the Lok Sabha’s productivity being less than half of the desired level. The Rajya Sabha had also lost more than 50 hours’ worth debate and legislative business due to disruptions. There is no doubt that the continuous trend of disruptions definitely play a significant role in the parliament’s productivity, purely on the logical basis of adding to the time constraints. The Lok Sabha’s ability to discuss policy is limited to three times in a year, where the Budget Session is exclusively limited to financial and preparatory discussion for the next financial year. The rest of the two sessions out of which the Winter Session is of extremely limited duration are marred by procedural formalities and restrictions leaving limited room for actual deliberation. The existing levels of political polarization have since been aggravated, warranting a unique examination of the disruption as compared to previous instances. This has resulted in a situation where the parliament’s self-preservation as a constitutional institution is at risk. Hence, the onus was on the Parliament to conduct efficient business in the Winter Session in order to keep the people’s faith on it intact. Therefore the Parliament had to take matters into its own hands by suspending several members in order to preserve itself.

Additionally, the Parliament gas attack resulted in heavy pressure not only on the Government, but also on the Legislature and its ability to protect itself from intruders. Furthermore, the Winter Session would be the last session of the 17^th Lok Sabha apart from the Budget Session, since that would witness only the Parliament’s discussions on the budget for the upcoming financial year. Hence, legislative business on other matters could be tendered only in the Winter Session, adding further to the imperative and urgent nature of transacting legislative business before its tenure ends. In light of the same, the string of disruptions and their repeated occurrence in the Parliament prevented such orderly conduct of legislative business from occurring despite their urgent need in order to preserve and protect the Parliament’s dignity, which had seen a downfall in light of the aforementioned incidents. In the context of self-preservation, it was held in Raja Ram Pal that:

“It is open to the Assembly to use its power for protective purposes or anything that lowers the dignity of the House.”

Furthermore, if we refer to the Constituent Assembly Debates on parliamentary privileges, Dr. Ambedkar says unequivocally that:

“Then again, it is open to Parliament to take action against any individual Member of Parliament for anything that has been done by him which brings Parliament into disgrace.”

Thus, considering the context of the Winter Session, and the loss of the Parliament’s dignity caused by the gas attack would be aggravated by individual members if they chose to continue disrupting proceedings. Thus, the Parliament had to exercise its power for protective purposes and for self-preservation of its dignity, due to its accountability to the people and their faith on the functioning of the State’s institutions. Thus, the tipping point of self-preservation was reached, wherein conducting business assumed greater importance compared to debate and deliberation, hence leading to the eventual suspension of disrupting members. The exercise of the right to self-preservation is mandated and necessitated in our democracy in such situations, thus defeatingany claims of procedural illegality in the conduct of business.

Concluding Remarks: The inherent objective of legislative scrutiny

Having tackled the tension between legislative business and parliamentary deliberation, let us concede the hierarchy of legislative scrutiny to be above that of deliberation and take a principled stand. On a fundamental level, make no mistake that the underlying objective of a parliamentary system is for the creation and passage of sound legislation. This itself is built upon legislative scrutiny and debate. The reasoning behind the structural and historical emphasis behind deliberation in the parliament is premised upon the institutional character of our framework by way of systems such as a bicameral legislature and representative democracy. The unparalleled importance to such scrutiny within the walls of the parliament is invariably based on creating an environment that has the increased probability of passing effective laws. The essence of such scrutiny itself is lost when there is no law-making that occurs. The point at which such ‘deliberation’ in the parliament does not aid in the legislative process, it simply becomes delay in the form of disruption. The emphasis should not be on any and all deliberation but on ‘effective deliberation.’

Therefore, the hierarchy of deliberation over that of legislative business has no role to play because the disruption caused does not fall within the ambit of effective deliberation. In the present case, the disruption that occurred was blatantly systematic and unreasonable, which by no means amounts to legislative scrutiny. The continual disruption caused has aimed to undermine the sacred framework, by putting a façade of legislative deliberation when in reality, it was not the case. This disruption amounts to a subversion of the established process by toying with the core ideals of democracy. As Tarunabh Khaitan writes, this advent of parliamentary obstruction in India has confused the constitutionally mandated rule of majority support with that of a system requiring ‘near unanimity.’ It is imperative that we keep in mind the objectives of the democratic framework before legitimizing unreasonable practices.

*Rishit Soni a Second Year student from the West Bengal National University of Juridical Sciences, Kolkata. His interest lies in the fields of constitutional and criminal law.

*Akshay Sriram is a Second Year student at the West Bengal National University of Juridical Sciences. He is interested in legal writing related to the Constitution and public law.