Parliamentary democracies have a range of conventional tools to exercise a check upon the power of the majority party. These include, for example, a dedicated position of the leader of the Opposition (with certain speaking rights in the house), constitutionally recognised “Opposition Days”, the existence of Parliamentary committees to scrutinise draft legislation (with guaranteed Opposition presence), parliamentary questions, the right of the Opposition to constitute commissions of enquiry (if supported by a threshold percentage of the house) and so on. The basic idea is that while the majority party’s victory in the elections grants it the right to formulate policy and to legislate, the exercise of this power must at all times be subject to public-facing scrutiny and debate. As elected representatives of the people, parties in the Opposition are particularly well-placed to carry out this role.
What, then, does the Indian Constitution have to say about the Opposition? The answer unfortunately is: “absolutely nothing”. The Constitution does not even recognise the formal position of the leader of Opposition (a subject of some controversy in recent years) to say nothing of recognising specific Opposition rights. As Ramkumar and Singh point out, this is in stark contrast to a number of more contemporary Constitutions that expressly recognise both. Instead, the position of the leader of the Opposition is provided for through ordinary legislation – and there, it is made conditional on recognition by the speaker – whose own lack of independence (as we have seen), in essence, renders the very existence of the leader of Opposition conditional upon the will of the executive.
The constitutional silence is not accidental. We have noted above the general absence of constitutional codification when it came to Parliament (in stark opposition to the rest of the Constitution), the corresponding reliance on uncodified conventions, and the possible reasons for that choice. More specific to this section, in the Constituent Assembly, efforts to constitutionalize the post of the leader of Opposition were explicitly rejected, with the Assembly demonstrating a certain degree of contempt about the possibility of a constructive and meaningful Opposition.
The Constituent Assembly’s reticence to recognise constitutionally entrenched Opposition rights emerges in even sharper relief when we consider the fact that colonial legislatures had provided almost no breathing room to the Opposition. As Syed Kazi Karimuddin noted in the early stage of the Constituent Assembly – soon after the initial decision to adopt Westminster parliamentarianism for the new Constitution – “we have seen in the past that in the working of the Provincial Constitution in the Provinces the Opposition was neglected, ignored and sometimes punished”. One would have imagined that past experience would have made the Constituent Assembly particularly solicitous about entrenching the rights of the Opposition within the parliamentary structure, instead of leaving it to parliamentary conventions that had never developed in the first place. However, the “distortion” of parliamentarianism under the 1935 Act which we have referred to above was something that the Constituent Assembly seemed more inclined to continue rather than transform – at least when it came to the Opposition.
This, coupled with historic judicial deference towards the parliamentary process, ensures that the ruling party (which, because of Schedule X, is effectively the ruling party leadership, or the executive) controls not only the content of legislation, but also the procedure of the house itself: from the decision of when to start (and when to end) parliamentary sessions, the decision on whether or not to send bills to Parliamentary Committees, and so on. This is why, for example, attempts to compensate for the legislature’s limited role in law-making through the creation of subject-specific Parliamentary committees has been mixed at best, with the effectiveness and role of these committees depending on how seriously the executive branch is willing, or inclined, to take them.
The result, thus, is an Opposition that is disempowered even more than it is in a well-functioning Westminster system, and its ability to participate (in law-making, in deliberation, and in oversight) is largely contingent upon the strength, will, and generosity of the ruling party (which, as we have seen, invariably means the executive). This, in turn, has given rise to other distortions in the parliamentary process, such as the well-documented and often-lamented phenomenon of the Opposition ‘disrupting’ proceedings in the House, and stymying legislative business. As Khaitan notes, it is the very powerlessness of the Opposition in what is a legislative “state of nature” that incentivises extra-parliamentary disruptions as the chosen method for Opposition legislatures to communicate their points of view to the public. At the end of 2023, this led to yet another distortion, with which we began this chapter: the mass expulsion of MPs from both houses of Parliament by the respective chairs (speaker and vice president), ostensibly on the grounds of quelling disruption and letting parliamentary business go on uninterrupted. We can therefore see how one set of distortions reinforces another, in an overall web of parliamentary decay.
Executive control over Parliament is enabled by the fact that much like Opposition rights, the Constitution also fails to guarantee the independence of the parliamentary “referee”, i.e., the speaker. In the previous section, we discussed how the speaker’s affiliation with the majority party creates a problem when it comes to the discharge of the adjudicatory function under Schedule X.
But of course, the speaker’s powers extend to far more than adjudicating disqualification petitions for defection. Under the classic Westminster parliamentary model, the speaker exercises complete control over the proceedings of the house. This includes, for example, the power to suspend legislators and remove them from the house, the power to decide how voting will be conducted, the power to order that legislative proceedings not be broadcast at any point, the power to expunge statements from the official proceedings of the house, and so on. In the Indian context, as we have seen, the speaker has the power to recognise (or not) a leader of the Opposition. Reddy and Bhargava, therefore, classify the speaker’s powers (and responsibilities) under three categories: facilitation (of the debates and discussions of the house, i.e., Parliament’s deliberative and representative function, which includes admitting motions for debate); disciplining (through suspension or expulsion, or adjourning the house); and adjudication (that is, the quasi-judicial functions that we have noted in the paragraph above).
These powers and functions assume, and require, neutrality. It is precisely the extent of the speaker’s control over the house that necessitates strong institutional safeguards guaranteeing their independence; and it is precisely such safeguards that are missing from the text of the Indian Constitution. The result has been a well-documented trend of Speaker partisanship recognised both in scholarship and by the Supreme Court, as recently as 2023. And the final consequence of this is a further tightening of executive control over the house, exercised through the speaker, in ways that we have discussed above (i.e., the speaker’s quasi-judicial functions in adjudicating defections, or his powers over the proceedings of the house), and shall discuss below (in the context of bicameralism).
Before we proceed further, it may be worth pausing to note a particular irony here. In his critique of the 1935 Government of India Act, Ambedkar identified the “two most important ways open to a legislature to for influencing the conduct of the administration … [that] is by discussion of the Budget, and by asking questions.” On the flip side, he identified two ways in which the executive could avoid its responsibility to the legislature: by curtailing its powers, and by influencing its composition. By Ambedkar’s own standards, the Indian Constitution is defective on at least three out of four of these counts, through its omissions and its silences. Exercising its control over the speaker, the executive is in a position to determine what questions are “selected” to be asked on the floor of the house, what meaningful powers the legislature exercises (through composition of committees etc.) and even the composition of the house (through adjudication of disqualification petitions and, at times. expulsions). It appears that trenchant critique of the 1935 Act turned into sanguine acceptance of similar, distorting features under the Constitution, creating stillborn parliamentarianism, the consequences of which have lingered on into the 21st century.
Excerpted with permission from The Indian Constitution: Conversations with Power, Gautam Bhatia, HarperCollins India.
