Last week protesters stormed Paraguay’s legislature, ransacked lawmakers’ offices and set off fires after senators approved a law allowing re-election of the president. The Venezuelan supreme court, which had stripped parliament of all its law-making power, rescinded its own order to restore “democracy”. And President Donald Trump, who failed to muster votes from his own party to repeal the Obamacare law, is now struggling to regain control over nomination of Justice Neil Gorsuch to the supreme court. These disparate developments stress the idea of constitutional democracy everywhere.
India encountered a different constitutional crisis a few days ago when the government faced a major embarrassment in the Rajya Sabha as five amendments moved by the Opposition to the Finance Bill, 2017, were adopted with a significant margin. The five amendments — three moved by Congress member Digvijaya Singh and two by Sitaram Yechury of CPM — thus dented the very tradition of legislative consensus on a budget.
Yet the democratic and moral loss proved to be merely temporary. The Lok Sabha, as a popularly elected House, negatived these motions because the constitution vests the final powers over such a bill in it. The power is unimpeachable. But the governance practice of innovating many other laws and of dubbing these as a Finance Bill is being questioned as constitutionally improper. The question is two-fold: One, an omnibus Finance Bill violates canons of constitutional propriety and second, the bill as enacted is itself unconstitutional.
Any formal accusation of constitutional impropriety must take seriously political arithmetic (availability of votes necessary to pass the bill) as well as moral mathematics (politically the right governance thing to do). The former dictated the reign of the Lok Sabha, where the NDA has sufficient votes; the latter demanded an appropriate deliberation, a structural decoupling of the Finance Bill from other non-taxing laws.
True, a floor management problem is created in Rajya Sabha since the government lacks a majority there, whereas the Lok Sabha hosts a super-majority of the ruling coalition. True, also, that the constitution counts as final the Speaker’s ruling to certify a bill as a Finance Bill. But, undeniably, the practice of amending other laws as money bills is on a high growth curve, since the government feels that its governance programme is unreasonably restricted in the Upper House. Although considered as a compelling political ground, the democratic propriety of the emerging practice of constitutional governance remains contested.
A procedural and a substantive argument has been made in favour of constitutionality. The procedural argument is that the constitution vests the power in each House of Parliament to determine its own procedure and Parliament remains autonomous of judicial control and review. While the matter is over when the Speaker rules that a bill is a Money Bill, strong constitutional reasons exist for judicial deference to the autonomy of parliament and for maintaining that the Supreme Court should only come in sparingly. And so far, all political parties seem to have evolved a convention ascribing the judiciary a most marginal role in matters of internal procedures of parliament.
The question confronting our constitutional future is whether this power is absolute, especially given its adverse impact on the freedom of effective parliamentary deliberation and participation in governance. The Supreme Court may not, for too long, resist an invitation to consider this question, if the habit of tagging major legislative proposals as money bills continues. The court has, in the past, restricted legislative discretion (for example, the legislative power to govern by re-promulgation of ordinances). Should the Supreme Court intervene at all? If it does, may it proceed to require the Speaker to record the reasons for the decision? Will these reasons in turn be subject to further judicial scrutiny? Should the President (here unaided by the cabinet) proceed to seek an advisory opinion?
The substantive argument entails that certain policy matters cannot await a consensus among the ruling and opposition parties, especially when all parties are united to strong action, say, in matters of national security and defence and combating the menace of “black” money. Mere difference of opinion on how these policy goals are to be attained may not be allowed to obstruct the pursuit of the goals. If the goals are honestly held, so it is argued, the difference over the means should not be allowed to build into a situation of constitutional logjam or a political veto. Moreover, since all legislation is a social experiment, it can be changed suitably if democratic experience so dictates.
Attractive as the argument is, it is also dangerous. Indirectly, it removes the rationale for bicameral legislatures, especially when they are considered as obstacles to a popularly elected government. Directly, respect for the citizen’s right to democracy stands endangered. This respect is enshrined in the constitution and now stands judicially enunciated in the doctrine of its basic structure. The Supreme Court has also declared the Universal Declaration of Human Raights and the UN Declaration on the Right to Development as binding principles for interpreting the Constitution. The certification of a Money Bill may not constitutionally foreclose the Rajya Sabha’s collective right to deliberate legislative change.
All citizens should be guided by a basic truth: The constitution is not a political tactic, rather, all such tactics must be judged by standards broadly enunciated in it. Justice M. Hidayatullah in Sajjan Singh wondered aloud whether the Constitution of India may be a “plaything” for the “special majority” and thus laid the foundations of what became the doctrine of basic structure and essential features.
The temptations of absolute power, abjuring a modicum of constitutional discipline, must be resisted by all. The leaders and cadres of the BJP, with significant others, once valiantly fought the internal Emergency. This heritage should result now in a common cause to protect the freedom of speech, and public deliberation, inside and outside the House. This democratic expectation requires (to reiterate T.S. Eliot’s words regarding Shakespeare) “… if we can never be right, it is better that we should, from time to time, change our way of being wrong”.