Parliamentary obstructionism should be avoided. It is a weapon to be used in the rarest of the rare cases. …If parliamentary accountability is subverted and a debate is intended to be used merely to put a lid on parliamentary accountability, it is then a legitimate tactic for the Opposition to expose the government through parliamentary instruments available at its command.

– Arun Jaitley, Leader of the Opposition in the Rajya Sabha, defending the disruption of parliamentary proceedings.¹

 

FREQUENT obstruction of proceedings in Parliament and in state legislative assemblies has become a characteristic feature of our democracy in recent years. Statistical data available from the PRS Legislative Research group suggests that in 2011, the Lok Sabha lost 30% of its plenary time to disruptions, while the relevant figure for the Rajya Sabha was 35%. These figures are not unique to 2011. There are reasons to speculate that the situation in state assemblies is worse, although reliable data does not seem to be available. Even if one agrees with Arun Jaitley that parliamentary obstruction is legitimate in the ‘rarest of rare’ cases, he cannot account for the extent of obstruction in the House in which he leads the opposition.

But hypocrisy is hardly the main problem with his defence of parliamentary obstruction. Obstruction is certainly not a ‘parliamentary instrument’ made available to members by the rules of the Houses. Nor is it morally defensible, at least in the manner and form in which obstruction is practised in our legislative bodies. Parliamentary obstruction in India has effectively substituted the constitutionally mandated normal decision making rule which requires majority support with one requiring near unanimity. This has, unsurprisingly, led to legislative paralysis, and the concomitant muscularization of the executive and the judiciary. Separation of powers is in tatters and parliamentary democracy seriously threatened.

 

Legislative obstruction is not unique to India. Some historians claim it was practised even in the legislative assemblies of ancient Greece. In our times, it is famously practised in the form of a ‘filibuster’ in the Senate of the United States.² In order to understand the nature of legislative obstruction in India, it is useful to draw three types of distinctions along three different axes – whether obstructions are in accordance with formal procedural rules, how costly they are to obstructing legislators, and how easily a determined majority can surmount them.

Along the first axis one can map obstructions depending on whether they are rule compliant or rule violating. The American filibuster is an example of a rule compliant obstructive practice inasmuch as it does not violate any rule of legislative procedure. Every senator who intends to speak has a right to be recognized by the chair to speak for as long as she wants, and there is no requirement that the speech be germane to the issue being discussed. Thus, until the adoption of cloture rules, a minority senator could exploit this loophole to block motions simply by speaking for as long as she physically could, on any subject whatsoever, and try the patience of the majority eager to get the motion passed.

Obstruction in India is usually rule violating, given the very detailed procedural rules that govern our legislative bodies. Take, for example, the Rules of Procedure and Conduct of Business in Lok Sabha. Rule 349 requires members, among other things, to remain silent when not speaking, not interrupt a member who is speaking, not obstruct proceedings, not shout slogans, not approach the chair, and not tear documents in the House in protest. Rule 352 prohibits members from using their right of speech for the purpose of obstructing the business of the House. Rule 356 prohibits irrelevant or repetitive speech. These rules leave no doubt that the usual methods of obstructing proceedings used in Parliament – noise, sloganeering, crowding around the chair etc. – are prohibited.

Rules 373, 374 and 374A allow for withdrawal and suspension of the obstructing members. Similar rules exist for other houses. Successive Speakers have failed spectacularly in their duty to enforce these rules, constrained as they are by the political weakness of their office and the widespread acceptance of the practice of obstruction by the political establishment. However widespread the acceptance of the practice of obstruction may be, it cannot make clear rules to the contrary redundant. Nothing short of an amendment of these procedural rules will make obstruction available as a legitimate ‘parliamentary instrument’.

 

A second axis on which different forms of obstruction can be mapped relates to the costs that the obstructer has to incur (less the benefits she earns) from obstructing the proceedings. The higher the net cost of obstruction, the less frequent its use will be. An actual filibuster is physically demanding, for the obstructing legislator has to stand and speak for hours. If the objective is to make enough noise to drown the speeches being made, it can be achieved with practically no physical cost so long as there is a critical mass of obstructive legislators. Apart from physical costs, there could be legal and political costs to obstruction. We have seen that obstruction through noise is against the rules of the Lok Sabha – if the Speaker enforced these rules, the potential costs to the obstructing MPs could be very high. However, in practice, these rules are not enforced, so the effective legal cost of obstruction is negligible.

 

There could still be political costs of obstruction, especially if it is unpopular with the voters. Despite the fact that Indian media regularly covers parliamentary obstructions, the political costs associated with the practice remain small. First, it is difficult to disentangle the use of obstruction as a legislative strategy from the substantive motion which was blocked using it. Strong opponents of the blocked motion may be willing to see the strategy as legitimate in that particular case.

Second, for there to be significant political costs associated with obstructions, the voter must be able to distinguish between political parties which see it as a legitimate tool and those who do not. No principled opposition to legislative obstruction is discernible – it seems that whichever party is in government opposes it and those in opposition justify it. There have also been worrying allegations that governments unsure of their numbers in a House sometimes engineer an obstruction by ‘friendly’ opposition parties to stall a vote and save face. This opportunistic use of legislative obstruction by all parties means that the associated political costs are negligible.

Indeed, the unrelenting media coverage of legislative obstruction may even be counterproductive. A legislator is much more likely to make news by engaging in unruly obstructive behaviour than by making a good speech or by supporting a desirable motion. The obstructing legislator may present herself as willing to go to any lengths for the cause, making obstruction not just costless but positively attractive to a minority legislator. Costless or beneficial obstructions have a tendency to be used frequently, as the Indian experience in recent decades testifies.

 

We have seen that legislative obstruction in India is rule violating and cost free, even beneficial, to the obstructer. On the final axis, we can classify various modes of obstruction based on the ease with which they can be surmounted by a determined majority. In the Senate of the United States, a majority of 60% of the senators can foil an attempt to filibuster. Given that legislative rules in India do not allow for any obstruction, and a simple majority should theoretically be able to have its way in most cases, there is no point in having a rule specifying how an obstruction may be surmounted. Chances are that any surmounting rule would also be violated. The only option left for a determined majority is to resort to cheating.

27% of the bills passed in the Lok Sabha in 2009, PRS Legislative Research has calculated, were discussed for less than five minutes. In recent years, Speakers have sometimes ignored the din in the House and put the motion to vote regardless. Several bills have been passed by voice vote during obstruction, without any plenary debate. After three bills were passed in such manner in September 2012, the Finance Minister P. Chidambaram acknowledged that the practice was not good for democracy. Even the governing party seems somewhat uncomfortable using this method of surmounting an obstruction. It certainly lacks the same degree of political acceptance in India that obstruction has come to acquire, and is not used nearly as frequently. If there is a critical mass of obstructing legislators, it seems that an obstruction is effectively insurmountable.

 

We have seen that legislative obstruction in India is rule violating, costless (or beneficial) to the obstructer, frequent and effectively insurmountable. To borrow a concept from Gary Cox’s excellent analysis of the organization of democratic legislatures, obstructions induce in Parliament a situation akin to the ‘legislative state of nature.’³ Unless remedied, such a legislative state of nature leads to gridlock and dysfunction. An ineffective Parliament is soon discredited and delegitimized. With its main decision making body paralyzed, the entire constitutional system comes under enormous strain and faces a crisis of legitimacy.

Cox describes a legislative state of nature as an assembly in which all business is conducted in plenary session (rather than in committees) and where members’ ability to talk and make motions is largely unrestricted and unregulated. An assembly in the legislative state of nature lacks agenda setting offices (such as the speaker, committee chairs, leaders of the House and the opposition, ministers, whips etc.) which determine which bills must be prioritized and what legislative procedures must be followed; nor does it have political parties which control access to these agenda-setting offices.

This radically egalitarian feature of the legislative state of nature guarantees to all members an equal amount of influence over the legislative process. In this legislative state of nature, a member of the assembly finds it much easier to delay and stall legislation than to accelerate it. Given that her ability to make use of the plenary time is unregulated and unrestricted, plenary time becomes a very scarce resource. The number of bills that members want discussed and passed is much larger than the number of bills that can be taken up for consideration in the time available. Cox refers to the phenomenon as a ‘plenary bottleneck’.

There are three features of a plenary bottleneck, each of which appear to exist in Indian legislatures. First, because every member’s ability to block or delay legislation is far greater than her ability to push one through, the de facto decision rule is unanimity rather than majority. In effect, every member wields a veto. The diversity of preferences among the members will affect the effective number of vetoes in the system. The insurmountable nature of obstructions in India means that the majority has to persuade every obstructing minority in order to get its motion adopted. Although not every member wields a veto in Indian legislatures, every party with a critical mass of legislators – i.e. with enough members to create sufficient din in the House – does. As a result, the constitutionally mandated majority rule is effectively replaced by a near unanimity rule. The Women’s Reservation Bill is a good example of legislation which can be stalled by a determined minority, even when it has the (admittedly grudging) support of the largest parties across the political spectrum.

 

Second, the de facto unanimity rule in the legislative state of nature means that the gains from trade on bills are limited. Members cannot decide to trade their support for each other’s legislative agendas because any such trade is likely to be frustrated by members who are not party to the deal. Furthermore, in the state of nature, any such trade promises can be broken. This feature may be a relatively minor problem in a bipolar polity such as the United States, so long as the two players are able to work in a bipartisan fashion. In the spectacularly multi-polar Indian context, however, the second feature is distinctly noticeable.

There is thus little incentive for the government to trade with the principal opposition party because its initiative is likely to be frustrated by other players irrespective of the concessions it makes in any deal with the principal opposition. Similarly, there is very little incentive for the chief opposition party to make politically expensive compromises when it knows that other players will frustrate the motion in any case (and reap political dividends for doing so). Thus, the possibility of insurmountable obstruction pushes each party to adopt intransigent positions. Even when a deal is struck, likely behind closed doors, it can be disowned later if it turns out to be too expensive politically. Along with political opportunism and genuine ideological disagreement within the parties, this feature goes some way to explaining why the Congress and the BJP tend to be in favour of economic liberalization when in government and against it when in the opposition.

 

Third, under conditions of plenary bottleneck in a legislative state of nature, each member has the ability and the incentive to consume plenary time to pursue local publicity instead of legislation, thereby worsening the bottleneck. Thus, plenary bottleneck causes a self-reinforcing vicious cycle. Given that obstruction in the Indian context is not merely costless, but positively beneficial to a minority party, it is not surprising that its frequency has increased and the bottleneck increasingly worsened. This feature suggests the absence of any self-correcting mechanism. Left to itself, the passing of time is likely to make the problem worse rather than better. Jaitley’s ‘rarest of rare case’ defence may well have been made in good faith, but multipolar polities will inevitably come to use costless and insurmountable obstructions too frequently.

 

A legislative assembly can function only as a corporate whole. It must have some decision making rule which determines what must happen before the assembly can be deemed to have ‘acted’. Usually, legislative votes are binary, i.e. an assembly can ultimately (i.e. after deliberation and amendments etc.) only choose between rejecting and approving a measure. In most assemblies, the normal rule is that of decisions by majority – when a majority of its (total or voting) members endorse a particular decision, the assembly is taken to have adopted that decision. There is a good deal of recent philosophical literature defending our intuition that a majority decision rule is usually the fairest and most reasonable decision rule in circumstances where people disagree over the course of action that ought to be adopted and where it is important that we decide one way or the other.⁴ Of course, there are exceptions.

In certain contexts, it may be reasonable to have decision making rules that require support of a super majority (say 75% of its members) or a sizeable minority (say 30%). The less than majority rule is often used for agenda-setting decisions – to decide whether to put an issue on its agenda, the approval of a critical mass of its members may suffice. Super majorities are often required for making changes to fundamental rules, where the system has a strong preference for maintaining the status quo. Deeply divided societies may also choose consociational forms of government, where warring groups are guaranteed mutual vetoes. The Northern Ireland Assembly, for example, requires cross-community support during voting on certain motions. There may be many other reasons for departing from the simple majority rule. However, only very rarely (if ever) do modern legislatures adopt the unanimity rule, and for good reason.

 

Apart from encouraging intransigence, a unanimity based decision making rule is a bad idea for other reasons too. We have seen that very little legislation gets enacted, while several important bills gather dust. A unanimity rule results in a strong inertia in favour of the status quo – a particularly distasteful political position in the deeply unequal Indian context. It may be that in a rare particular case, obstruction has been used to block a particularly regressive piece of legislation. However, the overall price of the systemic tolerance of frequent and insurmountable obstructions in India is the frustration of the transformational constitutional agenda.

Besides entrenching existing inequality, legislative obstruction also has anti-democratic implications. Voter choice in legislative elections becomes less relevant – a voter knows that her positive legislative agenda is likely to be thwarted and her negative agenda is likely to be realized, irrespective of who she votes for. Legislators seek other avenues to achieve electoral differentiation and gain competitive advantage. The acquisition of executive functions over the allocation of Local Area Development funds by legislators became necessary because their legislative work counts for very little with the voters. The value of a legislative seat is reduced to a mere step towards gaining executive office – there is little attraction left to the role of the legislator itself.

Legislative inertia also leads to the dominance of other organs of the state, which step in to fill the void. The last few decades have seen a remarkable increase in judicial and executive power at the cost of the legislature. Important decisions which ought to be made after wide consultation and due deliberation in a legislative forum are made by ministers and judges following opaque procedures. Judges openly cite legislative dysfunction as the rationale for judicial legislation on matters ranging from the protection of environment to dealing with sexual harassment to the procedures for allocation of natural resources.

 

There are two strategies that need to be pursued simultaneously to deal with the problem of plenary bottleneck. The first strategy is to reduce the number of motions that require plenary time. Constitutional provisions and the value of democracy impose limits on how far this strategy can be employed. Primary legislation must be enacted in plenary sessions. However, the role of legislative committees – which tend to be more productive than plenary sessions – in examining secondary legislation (rules) proposed by the executive can be strengthened. Further, much plenary time is wasted in determining what procedure should be followed to debate non-legislative accountability-seeking motions.

For example, the winter session of the Lok Sabha in 2012 lost several working days due to obstruction over whether the legislative debate on the executive’s decision to allow foreign investment in retail should take place under a rule which allows voting or one which doesn’t. It will be much better to adopt a standard rule. It could be provided that all accountability motions should be amenable to voting, at least in the Lok Sabha, where the government can be expected to be confident of its majority – or face political embarrassment when it doesn’t. Alternatively, a multiparty parliamentary committee could be empowered to conclusively determine the matter before the start of parliamentary sessions.

 

A second strategy is to deal with obstructions directly and increase available plenary time. Since obstruction is already rule violating, creating new rules to forbid it will be pointless. For the same reason, making rules allowing majorities to surmount it will not be any good either. The only way to deal with obstruction is to make it costly. The political costs for the obstructers will rise only when at least some major parties become thoroughly non-obstructionist, support the reforms outlined below, and seek political distinction on that basis. The legal costs will increase only if Speakers start enforcing the rules that prohibit obstruction. For the politically weak office of the Speaker, it is hard enough to suspend the odd obstructing MP. Mass suspensions are practically impossible. Effective costs will have to be automatic (i.e. not require any action on the part of the Speaker) and collective (costs targeted at obstructing members will necessarily require prior identification by the Speaker, and therefore likely to be ineffective).

Withholding the daily allowance of all legislators on days when a House is obstructed is one way to impose an automatic and collective, if relatively small, cost. Another option is to require that every House must sit for at least a hundred ‘qualifying’ days every year – a day qualifies only if a minimum of five obstruction free hours were spent on legitimate business. If time wasted during obstruction doesn’t count, it will make obstruction costly enough to become sufficiently unattractive – except perhaps in the rarest of rare cases that Arun Jaitley defends. Together, these collective costs may get our legislatures working again.

 

* I am grateful to Madhav Khosla, Nakul Krishna and Paul Martin for helpful comments.

Footnotes:

1. Arun Jaitley, ‘Defending the Indefensible’, The Hindu, 28 August 2012.

2. See, G. Wawro and E. Schickler, Filibuster: Obstruction and Lawmaking in the US Senate. Princeton University Press, 2006.

3. G. Cox, ‘The Organisation of Democratic Legislatures’, in D. Wittman and B. Weingast (eds.), The Oxford Handbook of Political Economy. Oxford University Press, 2006.

4. See, for example, J. Waldron, The Dignity of Legislation. Cambridge University Press, 1999, chapter 6.