Between the purist and the pragmatic, there are many divergent views on the Modi Government’s latest ordinance blitz. My own is on the practical, if impatient, side. Just because one party, while in opposition, was constitutionally delinquent in employing stalling of Parliament as a political tactic for 10 years, it doesn’t justify its victim’s tit-for-tat now that the roles have reversed. Railroading laws with ordinances is an awful thing, but so is using parliamentary stall as a permanent tactic. Issuing ordinances, and finally passing them in joint sessions of the two Houses, is an abomination. It is a mockery of parliamentary oversight and checks and balances of a bicameral system. But so is to stall all legislation, even if you agree with it. Over the past decade a dangerous new trend has taken root at the Centre too, following the precedent of some messy state capitals, where governments wait for the interregnum between Parliament sessions to get some business done. But yet again, blocking Parliament through “halla“, rowdiness is not like some harmless old filibuster either. Somebody had to call this bluff, more likely a government with a real majority, and if people of India have given it to Modi and BJP, so be it.
This week’s larger argument is with a system where good, decent, even harmless, essential and routine laws and amendments don’t get past the stall for years, but bad laws, in fact some of our worst laws, pass without any trouble. The Land Acquisition Act is a good example. The ordinance seeks to rectify its most disastrous clauses that were more hostile to the farmer than to industry, rooted as these were in mid-20th century notions of rural economy. All of the BJP obviously agrees on this now. But all of it also agreed when this very same incompetently drafted law was passed with near unanimity just the other day. BJP/NDA MPs in both Houses then voted for it. The honourable exception, the party to stay consistent in opposition, has been Mamata Banerjee’s TMC. But then, in these matters, it is always the usual suspect.
Over the years now, our political class has fully embraced the idea of passing bad laws, without even token debate, forget questioning. The latest example, because it may have escaped our attention, given how quickly it happened, how peacefully and without a whimper in debate, has been the Constitution amendment (99th) seeking to restore some of the political class’s pre-eminence over the judiciary, eroded in the last 25 years or so. I am belabouring the point, but a Parliament so utterly divided on any issue voted on a major constitutional amendment within a day because it suited MPs. And the same Parliament has failed to pass a really minor amendment raising the FDI cap on insurance from 26 to 49 per cent for almost 11 years now. And this, when the Congress and BJP have agreement on it. It is sad now that the amendment has to follow the ordinance, and then probably the joint session, route. But you can’t blame just one side for it.
People invented democracy to govern themselves. They designed parliaments to make laws to govern and regulate themselves. In time, a set of intricate systems, parliamentary committees, hearings, debates, then listing of legislation drafts on internet for even wider public consultations evolved. The fundamental idea was that lawmaking is serious business and should be subject to as many checks and balances and debate, open and closed, as possible. Each democracy found a way of its own. The US Congress places no restriction on lawmakers on voting along party lines, so there is a system of open public hearings at committees. India, on the other hand, has a whip system which binds an MP to vote on the party’s diktat and a tight anti-defection law to disqualify him if he does not conform. Accordingly, our committee hearings are held behind closed doors.
The idea is to give MPs the privilege to take a more independent view, even if it is contrary to their party line. Having been summoned to depose before a couple of them, notably the one on FDI in news media chaired by Somnath Chatterjee, I found them to be intelligent, well-informed and well-intended. As a supporter of FDI, for example, when I argued there was no justification in protecting the Times of India Group from Rupert Murdoch when reform had already exposed the Indian apple-farmer to competition from America and New Zealand, Chatterjee, a Marxist, simply smiled and asked: “So my question is, was it prudent to expose the Indian apple farmer to that global competition?” All very civil, good-humoured and parliamentary. The central idea is to address that challenge for all democracies: to protect the people from majoritarian excess. Of course, this was taken to absurd lengths under the UPA when many of its own senior, fake povertarian MPs opposed even their own government’s reformist legislation, notably something as innocent and bipartisan as the new Pension Regulatory Act.
For the record, pension reform had been initiated by Vajpayee’s NDA, with Congress concurrence, and because insufficient parliamentary time was left to pass a law, change had been instituted with a mutual understanding that it would be sanctified by the new Parliament in 2004. But Congress came to power with the support of the Left and, along with the pinko left within, first passed an ordinance in December 2004, but failed to vote it into a law. It is a perfect moment for me to bring in Pranab Mukherjee, our greatest living constitutionalist and political traditionalist by far. I asked him in a 2005 interview what was UPA going to do with pension reform law as there was internal opposition. “Your friend Chidambaram (then finance minister) will find a way,” he said, with a somewhat bashful smile. “He is a very good lawyer.” I’ll invoke Pranabda again in a bit.
Meanwhile, the same Parliament had no issues passing a whole bunch of hasty, poorly thought-out laws, simply because these were populist. These, ranging from MNREGA to increased OBC reservations in higher education, right to education, food, and land acquisition to the new rape law, were all passed in a hurry, either without debate or amid loud demands for amendments to make each one even worse than it was. The new rape law was pretty much debated and drafted on the streets and thumb-marked by a scared Parliament. A truly inadequate, yet dangerous Lokpal Bill was negotiated at an entirely extra-constitutional forum with Team Anna and voted under a deadline in Lok Sabha. Thank heavens it did not pass Rajya Sabha, and now nobody even talks about it. Right to education was one of the UPA’s stupidest laws, but all voted for it. It was this flurry of bad, unthinking law-making, as if all our problems could be addressed with fancy new laws, that provoked me to write a National Interest on Lawlipop Politics. But once again, all voted for them. In fact, if Narendra Modi, Arun Jaitley and Amit Shah today ran their eyes over the records of the debate on the land acquisition bill, they will be red-faced looking at some BJP interventions which sought even more disastrous changes. Or review the line taken by two of their most prominent “reformist” faces, one young and the other not quite so, in the parliamentary committees on insurance, GST, Direct Taxes Code (DTC). It was a shame, and a capital offence, if read with the latest ordinances.
When a divided polity habitually names bad laws and blocks decent ones, you end up with a predicament like the NDA’s now, and short-circuit solutions. Let nonsense happen, we will reverse it when we come to power is an unsustainable line in a system where power changes hands routinely. Which is where I bring in Pranab Mukherjee again (recorded and published) on a debate on economic reform in a series of round-tables called “Crossfire” organised by this magazine (India Today) in 1990. “When we held loan melas,” he said, “we had never imagined there will be loan waivers.” Now, how many further loan melas and waivers, bad laws and reversals have taken place since!
POSTSCRIPT: The RBI, interest rates and economic slowdown are back in the headlines. For a long time I have been persuaded by my reformist economist friends to weigh in favour of decisive rate cuts. But lately, since many ask me why I seem to have reversed my view, my short answer is a question: rate cuts by whom?
India’s banks work in huge spreads. They pay very little to depositors and charge high rates from borrowers. Why can’t banks cut rates, narrowing their spreads, instead of wailing to be wet nursed by the RBI? It is because they harbour humongous bad loans, usually to some of our most prominent cronies, and nobody wants to upset that cosy arrangement. As a result, you pay 14 per cent for your child’s education loan while Mr Vijay Mallya chills in default.
My epiphany came on February 7, 2010. The State Bank of India, the big daddy, threw a coming-out party at Mumbai’s Brabourne Stadium with a fancy laser show-and-tell on its massive computerisation. The who’s who of Indian industry, Ambani brothers to Tata CEOs, were present. When the chairman of SBI blows the whistle, everybody falls in line.
The preening chairman, O.P. Bhatt, was making his presentation when the show stopped. A couple of lights came on, there was a flurry to the left and we all saw an imposing silhouette, surrounded by a dozen or so grey-safari-clad bouncers, walk in, so confident, master of the universe, star of the show. It was Vijay Mallya, a top borrower and defaulter, and he could get away being so rudely arrogant at his own prime lender’s show. That’s why I now say, let banks cut before the RBI, and if it hurts their balance sheets, recover their bad debts first, starting with Mallya, the most eminent of all defaulters.