AS EXPECTED, the UPA regime got its way in the Lok Sabha when the motion opposing FDI in multi-brand retail was defeated. While this was not a confidence vote, and would not have formally made a difference to the government’s survival, the episode did bring to light conflicting positions as to the relationship between the executive and the legislature. It would be useful to examine these and see if anything is fundamentally flawed in our parliamentary practice, or if the problem really lies with the manner in which politics is practised.
Adherents of the government expressed concern that an executive decision — such as to allow FDI in multibrand retail — was being put to vote. This was unprecedented, they said, save for a similar discussion related to a disinvestment/privatisation proposal mooted by the NDA in 2001. In that case, the vote had been sought by the Congress. Evidently, positions have reversed since then. Presumably, they will continue to differ depending on who is in power and who in the Opposition. Yet, is this necessarily something to worry about?
The permitting of FDI in multi-brand retail entailed a small change in the rules used to implement the Foreign Exchange Management Act. Usually, this is undertaken by the Reserve Bank and does not require a full-scale amendment of the law by Parliament. This is a process called subordinate or delegated legislation. The changed rules are placed before the House, and in the normal course, passed without discussion, part of the residual leeway the legislature grants the executive.
In the case of FDI in retail, the Opposition sought a vote on the change in rules (which could potentially have nullified the policy change) as well as a discussion and vote on the new FDI policy (which could potentially have embarrassed the government without necessarily nullifying the policy change). It is worth noting that all of these provisions and nuanced differences — discussion without voting, discussion with voting, and the capacity to seek revocation of allowance for delegated legislation in a specific case — are within the laws that govern Parliament and perfectly constitutional. They represent a delicate and imbricated system of parliamentary oversight, scrutiny and, in some cases, sanction of the functioning of the executive.
As such, if there is room to demand a discussion with voting, then the Opposition is entitled to seeking recourse to it. This does not mean the Opposition will jump each time it disagrees with a policy decision. It all depends on the political capital and legislative robustness of the government. If the UPA had taken the FDI in retail decision in September 2009, just months after winning the Lok Sabha poll, it is unlikely it would have had to submit itself to a vote. On the other hand, in September 2012, in the fourth year of a coalition government’s decidedly imperfect term, it is reasonable to expect that the Opposition will take its chances. To see the FDI vote as a “worrying precedent” is therefore to read too much into it.
Just how much autonomy should the executive enjoy from the legislature? In the Westminster model of democracy, strong legislative majorities and the authority an incumbent prime minister (or chief minister) commands result in what political scientists call “Cabinet dictatorship”. Coalition governments and unclear mandates diffuse this phenomenon somewhat.
Overall, there is no hard and fast rule as to the appropriate equation. Following the Indo-US nuclear deal, the BJP put forth a proposal in 2009 to make it mandatory for all important treaties to be ratified by the Lok Sabha. This was deemed an over-the-top idea. It would have created a strange hybrid of British and American parliamentary procedures. In a hung House, it could have made international engagement entirely vulnerable to unrelated domestic political compulsions.
Having said that, there is a strong case for parliamentary committees — carefully chosen, with the Speaker and the leaders of the House from both the Treasury and Opposition Benches playing a selectorial part — to have some sort of role in monitoring intelligence agencies and building a bipartisan ecosystem for national security issues. The appointment of chiefs of intelligence agencies and of the CBI could benefit from the executive ceding space to the legislature. That is a conversation Parliament needs to have with itself. The time has come.
Ashok Malik is Contributing Editor, Tehelka.