Parliament and State Legislatures ? structure, functioning, conduct of business, powers & privileges and issues arising out of these.
Indian Parliament: Evaluating the performance of the 70 year old institution
It is almost 70 years since independence. As an institution, Parliament is central to the very idea of democracy and was assigned a pivotal role in our Constitution by the founding fathers of the republic. Yet, so many decades later, it has neither evolved nor matured as it could, might or should have. If anything, slowly but surely, it has diminished in stature and significance. Indeed, it is now more a symbol than the substance of a vibrant democracy that has taken deep roots among our people.
Role of Parliament and Key Issues:
Responsible for legislation:
It is responsible for legislation—laws of the land—by which people govern themselves.
The process of legislation is slow and lagged. There are times when it extends from one Parliament to the next.
Laws are often passed in a rush through loud voices or large numbers.
There is little scrutiny of draft legislation.
There is almost no follow-up on rules when laws are put in place.
Parliament must ensure accountability of governments—on policies or actions—to the people.
It would appear that governments are more accountable to people at election time than they are to Parliament in session. The examination, analysis and evaluation by Parliament, so essential for invoking accountability, are not quite there.
The only means, it seems, are questions asked by MPs, many of which are pedantic, unclear or on behest. For searching or probing questions, governments do their best to provide as little information as possible in answers.
Engaging in discourse and debate over national issues:
It should engage in discourse and debate on issues that concern the nation and the citizens. How has it fared in performing these roles?
Discourse and debate on issues of national importance were an attribute and highlight of Parliament during the first two decades of the republic, until around 1970. But this has eroded and diminished with the passage of time.
Discussion are often partisan between groups where party lines are sharply drawn. Thus, differences lead to protests in the form of walk-outs or rushing to the well of the house.
Criminalization of politics:
ADR reports that 34% of the MPs in the 2014 Lok Sabha faced criminal charges, as compared with 30% in 2009 and 24% in 2004. The ADR data also show that, across parties, candidates facing criminal charges were more than twice as likely to win as compared to those with a clean record.
In the total number of sittings, disruptions took away 30% of the time in the Lok Sabha and 35% of the time in the Rajya Sabha. Both houses did sit for extra hours but that made up for a very small proportion of the time lost.
Even when the Parliament sits and meets, there is more noise than debate, more shouting than listening, and more statements than engagement or debate.
The duration for which Parliament meets in India, compared with other democracies, is short. In the UK, both the House of Commons and the House of Lords meet for more than 150 days per year. In the US, both the House of Representatives and the Senate meet for 133 days per year. In Japan, as a norm, the Diet meets for 150 days per year and this is often extended.
2) Institutional constraints on performance of MPs:
The allocation of time for MPs to speak is proportional to the strength of their political party in the house and its leadership decides who gets to speak and for how long. The speaker of the Lok Sabha or the chairman of the Rajya Sabha have little discretion in the matter.
The only other opportunities for MPs are during question hour or zero hour. Answers to unstarred questions are simply laid on the table of the house. Starred questions are too many. Only a few come up for discussion. And these are just not taken up if the concerned MP is not present at the time.
In zero hour, the speaker or the chairman have the discretion to invite an MP to speak, but time is too little and speeches are often drowned out in pandemonium.
MPs do not quite have the freedom to speak in our Parliament as in other democracies. For one, they are afraid of what the party leadership might think, which could affect their future. For another, party whips are a problem. Any violation of this whip could lead to an MP’s expulsion from the house.
The constitutional provisions are impeccable. Yet, these remain unused and are sometimes misused by the political system. There is also a redeeming feature in our parliamentary process.
The standing committees and select committees can be diligent and are often not partisan. Alas, these committees are often used in form than substance. Moreover, their recommendations are not binding.
Electoral reform through public funding of elections, combined with
Political reform that mandates disclosure on the sources of financing for political parties.
Setting rules for elections within political parties to foster intra-party democracy that has been stifled not only by dynasties but also by oligarchies.
Almost 70 years after we began life as a republic, there is a clear and present danger that we could be the world’s most vibrant democracy with the world’s least effective, and perhaps most dormant, Parliament. It is time for MPs in India to reclaim their rights in Parliament as representatives of the people.
Connecting the dots:
As an institution, Parliament is central to the very idea of democracy. However Indian Parliament as an institution is surely deteriorating over years. Critically analyze.
Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and bodies constituted for the protection and betterment of these vulnerable sections.
Government policies and interventions for development in various sectors and issues arising out of their design and implementation
Gender identity: Beyond male and female, the right to humanity
In India the transgender persons are deprived of the fundamental rights available to the other two sexes, i.e. male and female.
“The transgender people, as a whole, face multiple forms of oppression in this country. Discrimination is so large and pronounced, especially in healthcare, employment and education, leave aside social exclusion. Now, it is time for the society and especially policy makers to recognise the rights of transgenders as a separate category and to extend and interpret the Constitution in such a manner as to ensure a dignified life for them.”
Our society often ridicules and abuses the transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities.
“Social justice does not mean equality before law on paper but translating the spirit of the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State Policy, into action, whose arms are long enough to bring within its reach and embrace this right of recognition to the transgenders which legitimately belongs to them.”
All this can be achieved if a beginning is made with the recognition of transgenders as the third gender. By doing so, the State is not only upholding the rule of law but also advancing justice to the class, so far deprived of their legitimate natural and constitutional rights. It is, therefore, the only just solution which ensures justice not only to transgenders but also to society as well.
Supreme Court’s judgment, on April 15, 2014 in the National Legal Services Authority vs. Union of India case (or NALSA jusgement), asked the government to take steps for the welfare of transgender persons and to treat them as a third gender for the purpose of safeguarding their fundamental rights.
The Bench gave a series of directions to Centre and State governments for enforcement:
To grant legal recognition of their gender identity such as male, female or third gender.
To operate separate HIV Sero-surveillance Centres as transgenders faced several sexual health issues.
To seriously address the problems being faced by them such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence on Sex Reassignment Surgery (SRS) for declaring one’s gender is immoral and illegal.
To provide medical care to transgenders in hospitals and also provide separate public toilets.
To constitute an expert committee to make an in-depth study of the problems faced by the transgender community and suggest measures that can be taken by the government to ameliorate their problems and to submit its report with recommendations.
Transgender Persons (Protection of Rights) Bill, 2016
In April 2015, when the Rajya Sabha passed a private member’s Bill protecting and providing rights for transgender persons, it looked like a welcome anniversary celebration of the landmark NALSA judgment, or the National Legal Services Authority vs. Union of India judgment.
However, the Transgender Persons (Protection of Rights) Bill, 2016, which attempts to bring the community into the mainstream – is still pending in Parliament.
The Bill seeks to define and provide recognition to transgender persons, prohibit discrimination against them, ensure inclusive education, create a statutory obligation on public and private sectors to provide them with employment and recognises their right to “self-perceived gender identity”. It also seeks to issue a certificate of identity to transgender persons, provide for a grievance redressal mechanism in establishments and to establish a National Council for Transgenders.
The Bill makes the government responsible for chalkingout welfare schemes and programmes which are “transgender sensitive, non-stigmatising and non-discriminatory”. Noting that it is a crime to push transgender persons into begging or bonded or forced labour, the Bill recognises the rights of transgenders persons to live with their families, not to be excluded from such households and enjoy and use the facilities of those households in a non-discriminatory manner.
However, the Bill has number of loopholes:
Definition of Transgenders:
The biggest shock comes towards the beginning in the definition section of the Bill. One of the most significant aspects of the NALSA judgment was its expansive understanding of the transgender identity by how it embraced individuals who wanted to traverse the male-female identification binary and those who wanted to identify outside of it.
The definition includes several terms like trans-men, trans-women, intersex variations and gender queers. But none of these terms have been clearly defined nor is their reference given somewhere else. This definition in the Bill is almost a distorted version of the definition proposed by the NALSA judgement.
The Bill includes terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ in its definition of transgender persons. However, these terms have not been defined.
Problem of self perceived gender identity:
The Bill states that a person recognised as ‘transgender’ would have the right to ‘self-perceived’ gender identity. However, it does not provide for the enforcement of such a right. A District Screening Committee would issue a certificate of identity to recognise transgender persons.
On top of it, the Bill reinforces injurious stereotypes about transgender persons as being part male and part female.
According to the draft, a transgender person is one who is:
neither wholly female nor wholly male; or
a combination of female or male or
neither female not male.
Conflicting provisions with other laws:
Another big challenge to this Bill is its conflicting provisions with other laws. Most of the laws in force in India like the criminal law and the personal laws mention the genders man and woman and provisions have been made accordingly. So the Transgender Persons Bill is likely to contradict a large number of such provisions. The Bill does not address the issue of Section 377 of the Indian Penal Code.
An amendment is required to be made soon in these laws to protect rights of transgenders under these laws too because the Bill if at all it becomes an Act, can still not address all rights of transgenders. There is a requirement of special courts which can deal with the offences against transgenders speedily and effectively.
Lack of mechanism for representation of the transgenders:
Another shortcoming in the implementation which the Bill will face is lack of mechanism for representation of the transgenders. For example, as we have a National Commission for Women and for lower castes, a similar type of provision ought to be made here too. This is a necessity taking into consideration the mindset of the society with respect to transgenders.
Although the Bill may come into force, it may still not be effective due to lag in the authorities to act for the rights of the transgenders. In such a situation, Commission having majority representation from this group can effectively look into the interests of the transgenders and ensure proper implementation and enforcement of their rights. Further, some provisions of the Bill are also in conflict with the international conventions on transgenders.
Although the Bill is put forward in high spirits, yet it lacks few provisions like no National/state level Commission, no special transgender courts, no self choice of gender,etc which if addressed could give it more teeth to bring about a change in the society. Moreover, the most important thing is to change the mindset of the society which is the root cause of such discriminatory and abusive attitude towards the transgenders.
The need of the hour is to make all the stakeholders responsive and accountable for upholding the social principles necessary to safeguard the interests of the marginalised sections of the society. Through the Transgender Bill, we can bring greater accountability on the part of the Central Government and Slate Governments/Union Territories Administrations for issues concerning Transgender persons. Other than policy measures, sensitisation and awareness have to be raised significantly. If various stakeholders can come together, we can definitely make this world a better place for the third gender.
Connecting the dots:
What are the problems faced by the Transgenders in India socially and in terms of policy implementation? What are the corresponding measures that are needed to be taken to address problems in both the areas?