Introduction:
The vast powers of the Executive are curtailed through the legislative procedure where the legislature acts as the provider and the Executive as the facilitator, such that the Parliament scrutinizes the executive functioning through parliamentary deliberations, especially with the operation of zero hours. Additionally, in budgetary and fiscal spending issues the Parliament provides the Executive with a budget couched with limitations on operation, however, the effectiveness of this scrutiny may differ in U.K. and India due to the political factors concerning the legislature and Executive, but the overall scrutinizing power of Parliament emanates from the phrase “parliamentary sovereignty” such that Parliament may delegate its most essential power also to the Executive, but operating behind various limitations.
The idea of parliamentary sovereignty is enshrined in the constitution of both India and the U.K. It elevates Parliament to the highest legal authority, with the power to enact and repeal any legislation. In general, the courts cannot overturn its legislation, and no Parliament can adopt laws that cannot be changed by a future parliament. Such that Dicey has explained Parliamentary sovereignty as,
The principle of Parliamentary sovereignty precisely means, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.[1]
This is the essence of the Westminster system of governance which is adopted in India. Along with it, the growing framework of administrative scope of lawmaking, and the wide scope of Executive action require a close and crammed framework for the restriction of its whims and fancies. thus, the need to analyze the mechanisms of Parliamentary scrutiny of the executive actions.
Zero Hour: Direct Tool for Scrutiny
The question hour is the direct scrutiny of the minister’s actions, it usually operates as the first hour of an everyday session of the Parliament on the issue of any administrative action, they can sought ministerial advice, opinion on any subject which is of importance or generally which shows the administrative negligence, here the ministers are not compelled to answer the questions but this provision has a tremendous impact on accountability, as even the Bureaucrats are kept at their toes because they are generally expected to advise the ministers on certain issues.[2] Similarly, in the U.K. this mechanism is referred to as oral questions time of one hour, and the scrutiny of departments is the primary aim behind it where each day of a week is allocated to a particular department and the schedule is communicated in newspapers. Additionally, in the U.K. there is a specific mechanism known as Prime Minister’s Questions where questions can be raised to PM for half an hour duration,[3] unlike India where the only wilful mechanism is “Mann ki Baat” which detaches itself from the real issues of the nation.
Scrutiny by Deliberations
The fundamental function of the legislature being lawmaking, the role of Indian Parliament or Legislatures across the worlds in debating and deliberating on bills, ignoring the current “sorry state of affairs”[4] in India, the debates act as critical insight into the policy behind any bill or law sought to be introduced which at the same time fills “gaps and ambiguities” in the laws.[5] In India or elsewhere the majority of the laws which are enacted are in the form of government bills which are produced by the concerned ministries and submitted to the law ministry,[6] thus debates in esse acted as a check on the policy adopted by the government, and whether it complies with the Policy of the state. While, in the U.K. the consultation process is very wide, such that the draft bills include the issuance of white or green papers to the public for the general input of the people, and these act as a precursor to Bill formal,[7] with multiple levels of deliberations at both the Public fora and the Parliamentary level, which itself has become more efficient with increased participation under Joint Committees of the Parliaments, and the three-stage assent seeking procedure for the bill.[8]
Budgetary Proceedings
The most essential fiscal scrutiny which the Parliament imposes on the Executive is the approval of the annual budget, whereupon the pre-budget consultations and all necessary scrutinization, the general budget was usually presented on the last day of February (not recently) where under Rule 130 of the Rules of Conduct of Business of Parliament,[9] the discussion was not to take place on the day of its presentation, followed by discussion in the Parliament which at last leads to a general reply by the Finance Minister. Before the voting, there are 24 parliamentary standing committees which consider the demand for grants of various ministries, and the voting on these grants are exclusively done in the Lok Sabha and during the voting, the Lok Sabha sits as House and not as the Committee of the Whole House as is the practice of the House of Commons. During the stage of the passing of the Appropriation Bill, Article 114 (1)[10] of the Constitution provides that after the grants have been made, there shall be a bill to provide for the appropriation out of the Consolidated Fund of India of all moneys required to meet, and aspects of the bill are further debated in the Lok Sabha, only after the assent of the President the CAG would release payment from the consolidated fund of India to the government. Under Article 265[11] only the Parliament could levy taxes, while the executive could only collect the taxes, as we see with The Taxation Law (Amendment) Bill, 2021 which aims to prohibit retrospective taxation. The Commons Treasury Select Committee scrutinizes the work of the Treasury, with members from opposition and other parties. The Treasury Committee investigates the Government’s plans after each Budget announcement, gathering evidence from expert witnesses and issuing a report with its findings and recommendations, where the House of Lords is prohibited to vote on money bills by the virtue of Parliament Act 1949 (12, 13 & 14 Geo. 6 c. 103[12]
Public Accounts Committee
The audit of the government expenditure is considered to be one of the most fearful curtailments on the “powers residual to Executive,” the Public Accounts Committee whose role is to review the yearly audit reports of the Comptroller and Auditor-General of India (CAG), which the President presents to Parliament. The CAG assists the Committee in this duty. The CAG under Article 149[13] is bound to work under the laws made by the Parliament with respect to the inspection of accounts of the Union or the states, the CAG aids the committee which analyses the Union government’s appropriation and financial accounts. The appropriation accounts compare actual spending to the spending authorized by Parliament through appropriation. Whereas, the Union government’s yearly income and disbursements are shown in the financial accounts. In the U.K. to the functions of the public accounts, committees are essentially the same and have been described by Lord Hennessy as “the queen of the select committees…[which] by its very existence exert[s] a cleansing effect in all government departments.”[14]
Limitations on Subordinate Legislation
The power of subordinate legislation is both a delegation of power from the hands of the Parliament as well as it acts as a framework for restricting the power of the Executives in certain areas where the law has not been enacted by the Parliament, as the power of the Executive is coextensive with the legislative power of the Union Parliament, as under Article 73.[15] This delegation of power is also scrutinized by other mechanisms like that of the committee on subordinate legislation which was established to scrutinize whether the executive’s rights to establish regulations, rules, sub-rules, bye-laws, and other legislation, which are vested by the Constitution or delegated to it by the Parliament are being properly exercised. Each regulation, rule, sub-rule, bye-law, is referred to as an “Order” in technical terms. Following the presentation of each such order to the Lok Sabha, if the order complies with general objectives of the Constitution, if it is ultra vires to the Constitution, whether it transgresses the objects of the parent act etc. Similarly, in the U.K. the Secondary Legislation Scrutiny Committee (SLSC) which was set up in 2003 has the power to scrutinize any secondary legislation, however, its powers extend not only to the scrutiny of the secondary legislation but it goes deep into the nature of legislation and determines whether a Negative procedure must be enacted into a positive procedure by the Parliament, secondly it scrutinizes all such procedures and instruments on which the discussion may have or might have been taken by the Parliament. Recently, a more comprehensive procedure is suggested for the operation of the Committee i.e. the Sifting procedure which requires the Minister to provide the reasons for adopting the negative procedure, and whether the House is expected to debate on it. Such that, a Minister cannot make a proposed negative instrument until the Sub-Committees have reported on it, subject to the statutory deadline of 10 sitting days.[16] Thus, in U.K. certain substantive powers are granted to the committee with formal stage-wise scrutinization coupled with necessary “ratification” of negative instruments.
Conclusion
It is a foundational principle of Parliamentary Jurisprudence and practices that powers of the Executive could in no manner be supreme to that of a representative legislature, however, in recent times the Executive power has in an undisguised manner overshadowed the powers of the Legislature, not in only in terms of convention but also in practice. This has recently been witnessed in India by scholars and even the Chief Justice who fear the lack of debate would disturb the quality of the legislations which are coming up. On the issue of Parliament’s prorogation, the U.K. Supreme Court observed that “Executive power cannot silence Legislative Scrutiny”[17] Thus, an Executive holding majority in its hand cannot steer the procedures and conventions of the Parliament in a manner to suit its self-interests, and Parliament under the majority of the Executive cannot be acting in a manner to subvert its authority in a manner to “commit suicide.”[18] Consequently, when we compare Indian and U.K. the two countries may have some practical difficulties, but the U.K. system excels despite the lack of such procedures acting as practices and not written rules.
References:
[1] A.V. Dicey, Introduction to the Study of the Law of the Constitution 37 (8th ed., 1885).
[2] Question Hour in Lok Sabha, Lok Sabha Doc. No. LAARDIS/No. 20/1/2014/PPR-3 (2014). http://164.100.47.194/our%20parliament/Question%20Hour%20in%20Lok%20sabha.pdf.
[3] The Parliament of United Kingdoms, Checking the work of Government. Available at https://www.parliament.uk/about/how/role/scrutiny/. (Last visited Aug. 21, 2021).
[4] Krishnadas Rajagopal, Chief Justice of India rues ‘sorry state of affairs’ in lawmaking, The Hindu (Aug. 15, 2021).
[5] Id.
[6] The Parliament of India, PASSAGE OF LEGISLATIVE PROPOSALS IN PARLIAMENT. Available at http://164.100.47.194/Loksabha/Legislation/Legislation.aspx. (last visited Aug. 21, 2021).
[7] The Parliament of United Kingdoms, What is a draft bill?. Available at https://www.parliament.uk/about/how/laws/draft/. (last visited Aug. 21, 2021)
[8] What is a Green Paper?, The Guardian (June 18, 2009). https://www.theguardian.com/careandsupportreform/what-green-paper.
[9] Rules of Conduct of Business of Parliament, 2019, Rule 130.
[10] The Constitution of India,1950, Art. 114(1).
[11] The Constitution of India,1950, Art. 265.
[12] The Parliament of United Kingdoms, The treasury committee. Available at https://committees.parliament.uk/committee/158/treasury-committee. (last visited Aug. 21, 2021). See Parliament Act 1949 (12, 13 & 14 Geo. 6 c. 103.
[13] The Constitution of India,1950, Art. 149.
[14] The Committee on Public Accounts, Holding Government to Account, 2012 first report p.7. https://www.parliament.uk/globalassets/documents/commons-committees/public-accounts/pac-history-booklet-pdf-version-p1.pdf.
[15] The Constitution of India,1950, Art. 73.
[16] Secondary Legislative Scrutiny Committee, Accessing the scrutiny work of the Committee and information resources relating to secondary legislation, Forty Fifth Report (2017-19), p. 3. https://publications.parliament.uk/pa/ld201719/ldselect/ldsecleg/312/312.pdf.
[17] Kapil Sibal cites UK Supreme Court’s verdict, says no scrutiny of bills in India, The Economic Times (Sept. 25, 2019). https://economictimes.indiatimes.com/news/politics-and-nation/kapil-sibal-cites-uk-supreme-courts-verdict-says-no-scrutiny-of-bills-in-india/articleshow/71295165.cms?from=mdr.
[18] Id.
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