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Failed in taking a stand against the pandemic: A Delineation of washout of the Indian Legislature17/8/2020 (Deepika Kacholia is a second year student of Dr. Ram Manohar Lohiya National Law University, Lucknow) Introduction The outbreak of the Covid-19 pandemic interrupted the working of legislatures (barring that of Meghalaya which even met amid the lockdown) across the country. While various legislatures across the globe were quick to devise novel modus operandi in order to keep with the pandemic, the Indian Parliament that has worked in the face of many adversities, is still in the state of adjournment along with the State Legislative Assemblies. During the 1962 Indo-China skirmish, the Parliament’s date of commencement was even brought forward (page no. 14). But in the present scenario, when multiple issues confront the nation, the Parliament has not been in action. During these tensed circumstances, it has become imperative for the Executive to respond to the changed circumstances in a prompt manner. However, the executive cannot formulate policies on its whims and craze. There must be some accountability over the government’s actions. Given the nature of the judiciary that lionizes the executive, the exigency of a working legislature cannot be stressed enough. Unfortunately, our legislature hasn’t been convened since the lockdown has been announced and this has created a crisis of answerability and responsibility within a medical and humanitarian crisis.
The Quandary of Accountability Our constitution provides for a system of “checks and balances”, thereby ensuring that no organ of the democracy exercises its powers in an unfettered manner. The Supreme Court, in Kartar Singh v State of Punjab, specified that “The legal sovereign power has been distributed between the legislature to make the law, the executive to implement the law and the judiciary to interpret the law.” However, in the present scenario, the executive has assumed the function of legislature too. Article 85, when read with Article 74 of the Constitution of India, points out that even ordinarily the Parliament has no control as to when its sessions are convened and when they get adjourned. But, it must be noted that during the normal functioning of the legislature, the Government is quizzed by legislative debates and questions, questioning through various parliamentary committees etc. But, with the legislatures not in session currently, MPs/MLAs who want to question the governments are left with no means but to hold press conferences and bring social media platforms to use. The legislature can be summoned and a smooth functioning can be ensured by taking cues from the countries where the legislatures have worked all through the Pandemic. Countries including Mexico, New Zealand and Spain (one of the badly hit countries) have switched to video conferencing or certain other electronic modes to keep the functioning of the legislature going. Provisions have allowed lodging of oral questions electronically. The UK has adopted a hybrid method under which few members meet physically and the rest virtually. Chile’s legislature even got the constitution amended to equip the Senate with a legal backing for carrying out the Legislative functions in a mixed system of physical and virtual meetings. It must be noted that the Disaster Management Act, the principal purpose of which is not to approach the outbreak of a disease, that was brought to use doesn’t require any explicit and legal proclamation of emergency and the executive is not under a stress to get it ratified, as is the case with an emergency proclaimed under Article 352. The DMA has been used in conjunction with the Epidemic Diseases Act which itself is a piece of legislation that was drafted in the colonial era when the fundamental rights was an alien concept. The law is ambiguous and imprecise. The law lets the executive assume immense powers without any sort of Parliamentary supervision, thus giving rise to a whammy of accountability. It might be said that these archaic pieces of legislation were put to use because there wasn’t any other competent law in place. However, our Parliament even met one day prior to the proclamation of a nation-wide lockdown and how big a threat the spread of virus could be was evident since long. Our lawmakers could have laid down a piece of legislation delineating the methods that would be employed to deal with this medical issue, the horrific spectre of which had already loomed large. Countries like Philippines and Chile have had a legislatorial sitting to deliberate upon the required modifications that are to be brought in the current corpus of law to deal with the challenge posed by the corona virus. Our lawmakers haven’t displayed any such sense of seriousness and promptness in dealing with this issue. UK’s Joint Select Committee on Human Rights had into the issues pertaining to human rights violation, particularly breach of privacy due to the State’s responses to Covid-19. In its report, the committee listed a set of conditions that should be guaranteed in any contact tracing app that the state might come up with. The committee also displayed disappointment over the factor that the app that the state was using wasn’t put under a thorough parliamentary scrutiny. In contrast to the efficient display of scrutiny in response to the State’s contact-tracing action in UK, any such official examination hasn’t been ordained in India where similar concerns have been exhibited and demands for a probe have been raised. Similarly, the stipulation of 100% tax exemption for donations made to the PM-CARES fund was made through an ordinance. This contentious stipulation would have to be introduced as a bill had the house been in session and an elaborate debate would have ensued on various other aspects of PM-CARES, thereby apprising the populace of the rationale behind the same. At a time when governments across the globe are announcing schemes and packages that can alleviate the plight of the working class, various state legislatures have suspended the labor laws through executive orders that go round the legislative scrutiny. Legislative discussion could’ve ensured that the executive doesn’t work on its whims and that a more balanced decision that considers the interests of all the stakeholders is reached at. Had the legislatures been in session, legislators would have questioned the government over the rationality of and the scientific wisdom behind their acts and formulated policies in order to contain the pandemic. Had the Parliament been in session and had its committees been working, deliberations and discussions could have taken place over the Code on Social Security Bill. The MPs could’ve highlighted the plight of migrants of their constituencies in the nascent stage of the issue itself, thereby leading to an efficient management of the whole situation. Moreover, the parliamentarians could’ve pressed for the enforcement and could’ve asked an array of questions concerning the implementation of relief schemes and policies for alleviation of migrants’ state. Concluding Note For the efficient working of a democracy, it is important that all its organs work methodically. This becomes even more important in the light of a crisis and in the past few months India has found itself at crossroads at multiple instances; be it the outbreak of Covid-19, the exodus of migrant workers, or the tensions at Indo-China border. In a battle with all these, our Legislative bodies have failed miserably. No urgency has been shown to summon the houses or to resume the working of Parliamentary Committees. In fact, the meeting of the Standing Committee on Information Technology that was to be scheduled on 10th of June, 2020 was deferred to 17th June, 2020 because no decision regarding videoconferencing could be made. Surprisingly, the committee didn’t meet even on 17th of June; it met on 14th July, 2020. In various countries like the UK and Canada, the dates on which the legislature would convene is declared in the beginning of the year itself. Therefore, legislatures of these countries quickly adapted to the new mode of convening whereas in India, the furtherance of certain agenda or interest of the executive underlies the decision to convene or prorogue assembly sittings. This factor leads to the promulgation and re-promulgation of various ordinances which has been termed by a seven judge bench in Krishna Kumar Singh & Anr vs State Of Bihar & Ors. as a “fraud on the constitution” . Several bills have been pending in the legislature for long and the finances have also gone haywire in the wake of the pandemic. Executive accountability has already been compromised within a scenario where executive actions should’ve been scrutinized even more. When the Prime Minister can chair meetings held over the portal made by the National Informatics Centre and when the courts can use video conferencing, why can’t the legislative bodies, the operations of which are generally telecasted live, switch to virtual modes? The monsoon session generally gets commenced by the third week of July but this time there hasn’t been any decision taken on the mode of working of the Indian legislatures. The Indian legislatures would have to switch to digital modes of meeting so long as the spectre of spread of virus looms large. By using videoconferencing portals, the legislative assemblies would not have to curtail their sessions because of the fear of contagion as has been the case in Goa. Although, it is reported that the houses can be convened in the Central Hall and even a hybrid method could be used but no explicit decision has been taken yet and no official declaration has been made regarding the same and in the light of these factors, the monsoon session of the Parliament cannot wait for longer now.
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