Menaka Guruswamy writes: It also worked as a Constituent Assembly, creating a Constitution that endures. Could today’s Parliament, which functions for a fraction of its designated working hours, do this?
This 75th year of India’s Independence feels like what its first year of freedom may have been like. How can 2021 remind this writer of how historians described 1947? Quite simply, this time of the pandemic is the single largest existential threat experienced by us as a nation just like that time of Partition when our constitutional republic was founded. The pandemic era defined by large-scale loss, lack of adequate state infrastructure and deep economic uncertainty — on the face of it — is reminiscent of the Partition years. Yet, there was one dramatic institutional difference that arguably enabled us to weather the existential threat that Partition was as a precursor to Independence — it was the functioning of Parliament or the legislature. However, in the pandemic-era 2020 onwards, Parliament, or the people’s voice and will, is as chaotic within as are the streets outside it.
On August 14, 1947, at the midnight hour, Jawaharlal Nehru addressing India’s dual-purpose legislature that was both Parliament and constituent assembly rolled into one, heralded our freedom by observing: “As the world sleeps India awake to its freedom.” That very same institution in its contemporary form, the People’s House or the Lok Sabha, was adjourned sine die earlier this week.
It has been inexplicably rare for Parliament to have been convened in the pandemic era that spans March 2020 to the present. In 2020, Parliament sat in session for 33 days. According to PRS Legislative Research (PRS), in the 2021 Monsoon Session, the Lok Sabha was scheduled to work for six hours per day for 19 days. Instead, it sat for 21 hours in total or 21 per cent of what was conceived. Contrast this with Brazil’s Parliament, that using an application called Infoleg, functioned at higher rates than in pre-pandemic times, with extraordinarily high voting rates. A contrasting approach was the United States Congress that met physically for 113 days in 2020. In the year before, they met for 130 days.
But it’s not just the pandemic that has caused this abysmally low functioning. In the past 10 years, the Rajya Sabha has functioned for less than 25 per cent of its scheduled time. According to PRS again, none of the 15 bills introduced in this Monsoon Session 2021 has been referred to a Parliamentary Committee. In this current Lok Sabha commencing 2019, only 12 per cent of the bills introduced have been referred to committee. By contrast, the 16th Lok Sabha (2014-2019) had 27 per cent and the 15th Lok Sabha (2009-2014) had 71 per cent of bills referred to standing committees, where they could be discussed, debated amid testimony by experts. More significantly, fewer and fewer drafts of key legislation are being debated across the political aisle before becoming law.
Even more astonishing, in this Lok Sabha, nine minutes were spent discussing and passing the supplementary budget that included a Rs 15,750 crore Covid-19 Emergency Response and Health System Preparedness Package. This is the functioning of the legislature — increasingly convened less and debates are few. Worse, more law is being made bypassing the body itself. I will leave it to the press and politicians to ascertain who is to blame for the steady decline of Parliament, culminating in this the 75th year of our freedom. As a lawyer and student of our Constitution, the contrast of today’s legislature with our founding one that gave us our Constitution could not be starker.
Indian Independence from the British was always meant to be a precursor to the real freedom that would follow, the adoption of a Constitution that would provide for equality, non-discrimination and fundamental freedoms. The drafting of India’s Constitution started in December 1946, when the Constituent Assembly first met, seven months before Independence in August 1947.
The Constitution was drafted between 1946 to 1949 and adopted on January 26, 1950. What makes these years of our constitutional founding so dramatic, was that the backdrop to our founding was as torturous as this pandemic era. Partition was unfolding, millions would be displaced, killed or disappeared as they crossed borders between the two nation-states. Yet, as the heart of Delhi was slowly filling up with refugees, India’s dual function legislature functioned as Parliament by morning and Constituent Assembly in the afternoon. What set it apart from the drafting project of any other assembly at that time, was its diligent attendance, committee for each theme and vigorous debate. Imagine writing a thoughtful Constitution as the world around you was being unmade and made afresh, as refugees flowed into Purana Qila that was only a short distance from Parliament. The violence, displacement, the smell of blood, smoke and fear was present all over north India and most certainly in Delhi.
The first Constituent Assembly was meant to comprise 296 members, but its initial session had only 210 members in attendance. The assembly faced a boycott by the rest of the members. In response to the boycott and to entice these members back, the chairman of the Drafting Committee Bhim Rao Ambedkar said: “This is too big a question to be treated as a matter of legal rights. It is not a legal question at all. We should leave aside all legal considerations and make some attempt whereby those who are not prepared to come, will come. Let us make it possible for them to come, that is my appeal.”
This approach of rapprochement and engagement with those who had contrasting opinions and interests was present at large. The Constituent Assembly caucus of the founding Congress Party included many members from outside the party. This motley crew of members from across the political-ideological spectrum were able to arrive at decisions as Upendra Baxi notes, “using a mixture of techniques of problem-solving, persuasion, bargaining and politicking”. This was in tandem with the hard technical work done by experts in various thematic committees and the political charisma being deployed by popular leaders to give credibility to the exercise.
Within even comparative constitutional scholarship, the functioning of this Partition era Constituent Assembly is held up as a model of nation building in tandem with writing a rare enduring Constitution for a large and diverse nation-state. As I look at our Parliament today, I am compelled to ask our political class — would you have been able to draft this nature of a Constitution that continues to be our freedom even today? Are we a democracy if our Parliament does not function?
This column first appeared in the print edition on August 14, 2021 under the title ‘We, the people, miss our House’. Guruswamy is a Senior Advocate at the Supreme Court of India.
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