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Mainstream, VOL XLIX, No 37, September 3, 2011

Legislating in Indian Parliament — Fact and Fiction: A Case Study

Tuesday 6 September 2011

by SHOBHA AGGARWAL

“The question is, who drafts the law and who makes the law? I submit that the time-honoured practice is that the Executive drafts a Bill and places it before Parliament and that Parliament debates and adopts the Bill with amendments if necessary. In the process of adoption of the Bill, there will be opportunities for Shri Anna Hazare and others to present their views to the Standing Committee to which this Bill has been referred by the Hon’ble Speaker. The Standing Committee as well as Parliament can modify the Bill if they so desire. However, I am not aware of any constitutional philosophy or principle that allows anyone to question the sole prerogative of Parliament to make a law.”
— Statement made by PM Manmohan Singh in the Lok Sabha on August 17, 2011 on Anna Hazare’s arrest
 
“But if laws are not to be made in Parliament but by some social activists in a maidan, how-ever well meaning they are, outside Parliament, then it is beyond my comprehension.”
— P. Chidambaram, Union Home Minister, at a press conference at Shastri Bhawan on August 16, 2011

During the recent campaign spearheaded by Shri Anna Hazare for an effective Lokpal Bill, at least half-a-dozen Cabinet Ministers of the present UPA II Government pontificated to the effect that legislation is the business of Parliament and that laws can’t be drafted in maidans through hunger strikes; on how some members of civil society have no business to take on the role of law-making even it be an effective Lokpal Bill. One Cabinet Minister after another, one spokes- person after another of the principal party within the UPA appeared to have rediscovered the virtues of the Indian Constitution, democracy and Parliament representing the will of the people.

But what exactly is the reality about legislating in Parliament? We wish to share our experience on how successive Central govern-ments subverted—rather than legislated—the process of law-making over the last sixteen years.

The Delhi Rent Act, 1995 (DRA, 1995) was passed by both Houses of Parliament, and received the assent of the President of India on August 23, 1995. It is not being enforced ostensibly because of successive Central governments getting blackmailed by the vested interests! In the last sixteen years of the legislative history, the Union Ministry of Urban Develop-ment (MoUD) has either blatantly ignored the sagacious recommendations or willfully not implemented the assurances given to several Parliamentary Committees (including the Committee on Petitions; Committee on Assurances; Committee on Subordinate Legislation; and three Parliamentary Standing Committees). The non-notification of the DRA, 1995 by the MoUD is contemptuous of Parliament, the aforementioned Parliamentary Committees, as also the President of India. Even the pronouncements of the judiciary—particularly during the last decade- and-a-half—urging the government for immediate rental law reform, including payment of market rent by tenants, have not been heeded to. The collective contempt shown on this issue by the government towards Parliament, Parliamentary Committees, the President of India and Supreme Court of India can only be matched by the contempt towards these institutions shown by the Maoists and the Naxalities.

By not issuing the relevant notification within a reasonable period, the executive effectively assumes the law-making functions. This is unconstitutional since the power to make laws rests with the legislature, not the executive. One of the defining features of our Constitution is the separation of powers between the legislature, executive and judiciary. In the last three decades instances of judicial activism—usurping the turf of the legislature and executive—have rightfully come under flak. It is our earnest hope the power of the legislature, for example, through non-notification of Acts passed by Parliament and even assented to by the President of India are brought to a halt. Getting the DRA, 1995 to be notified could be the first step in that direction.

Blatant Lies in Parliament and Courts

CONSIDER the averments and assurances solemnly made in Parliament and before the Delhi High Court in the years 2007, 2008, 2009 and 2010:
 
“After formation of the 14th Lok Sabha the Delhi Rent (Amendment) Bill, 1997 is required to be considered by the Government afresh and steps have been initiated in that direction.”
– Shri Ajay Maken, then Minister of State, MoUD, in the Rajya Sabha on 15.11.2007 and again Shri S. Jaipal Reddy, then Minister of Urban Development, in the Lok Sabha on 7.3.2008
“Draft Cabinet note was prepared and submitted to the competent authority for approval prior to taking up the proposal for amendment of the Act with the Parliament after approval by the Cabinet.”
– Shri R.R. Sharma, Dy. Secy., MoUD, to the Rajya Sabha Sectt. on 27.3.2009
“After the formation of the present Govern-ment further process of the Delhi Rent (Amend-ment) Bill, 1997 and official amendments thereto are under consideration of competent authority in the Ministry.”
– Union of India in its Counter Affidavit filed in July, 2010 in writ petition titled Shobha Aggarwal and others Versus Union of India and another
“…Draft Cabinet Note to process the Delhi Rent (Amendment) Bill, 1997 and official amendments thereto is under consideration of competent authority in the Ministry.”
– Shri R.R. Sharma, Dy. Secy., MoUD, to the Rajya Sabha Sectt. on 10.9.2010

To check the veracity of these assurances we decided to procure the relevant official file pertaining to this legislation. Perusing through the pages of the file [File No. 12-1/2004-UCU containing draft Cabinet Note and official amendments in the draft Bill)] pertaining to the Delhi Rent (Amendment) Bill, 1997, it was found to our horror that from the period December 2006 to December 2010, that is, for four long years the file was kept in cold storage by the Minister for Urban Development (UDM). There is not a single noting either by any bureaucrat in the Ministry—Section Officer, Under Secretary, Deputy Secretary, Director, Joint Secretary, Additional Secretary and Secretary or by the UDM or Minister of State for Urban Development. It is patently clear that there was no application of mind by any official or Minister on the Delhi Rent (Amendment) Bill, 1997 during these four years. The official records speak for themselves. The Delhi Rent (Amendment) Bill, 1997 was not under consideration at all; there was no effort by the competent authority even to approve the draft Cabinet Note submitted to it. Had parliamentarians been vigilant, the concerned Ministers would have faced privilege motions for lying in Parliament. While Parliament and the Delhi High Court were being informed during these four years that the Bill was under conside-ration the truth is that for a consideration (courtesy vested interests) the Bill was not under consideration.

In December 2005 the PM himself launched the Jawaharlal Nehru National Urban Renewal Mission (JNNURM) with much fanfare and with the stated objective of urban development. The policy document placed in Parliament clearly enunciates the mandatory reforms—including rental law reform—to be implemented as a precondition for the release of funds. However, on 10.12.2009 the Cabinet Committee on Infra-structure, of which the PM is a member, surre-ptitiously decided to exempt the Government of NCT of Delhi from rental law reform. It was an act of fratricide—the father of economic reforms in 1991, and who as the PM announced the JNNURM policy in 2005, himself murdering the very ideas he cherished and propounded in 2009.

Having subverted the DRA, 1995 by not enforcing it by notification for sixteen long years, Dr Manmohan Singh and his Cabinet team have no right to lecture citizens on how laws are made!

The author is an Advocate and the Joint Secretary, Public Interest Litigation Watch Group, New Delhi.

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