perspectives

Under Cover

The unreasonable secrecy of parliamentary committees

By PRASHANT REDDY THIKKAVARAPU | 1 October 2015

In February 2014, the United Progressive Alliance government announced a new policy that significantly increased the transparency of India’s lawmaking process. The “pre-legislative consultative policy” mandated that every proposed bill be made available for public scrutiny before its introduction in the parliament. Prior to this, several government ministries had effectively treated draft laws as secret until they came up for legislative scrutiny.

Since debates on the floors of both houses of the legislature are televised, and since the parliament maintains publically accessible, verbatim records, the country’s parliamentary proceedings are already transparent. With the new policy, it appeared that, from conception to passage through parliament, every part of a law’s creation would now be conducted entirely in the public’s view.

But, in fact, a key aspect of lawmaking is still relatively hidden from public scrutiny. Apart from being debated in the parliament, most bills are also discussed in depth in meetings of parliamentary committees, which can exercise great influence over proposed legislation. These committees’ deliberations remain largely confidential. Officially, legislators cite “parliamentary privilege” to justify this. This confidentiality is worrying, since it is entirely conceivable that in some parliamentary committees, powerful forces with hidden agendas affect our legislation, with the public unaware of it.

Parliamentary committees, which India inherited from the United Kingdom’s parliamentary system, comprise groups of MPs with specific responsibilities—from scrutinising government accounts to overseeing legislators’ ethical conduct. They include both standing committees—permanent bodies whose membership is regularly renewed—as well as “ad hoc” committees—constituted from time to time to carry out specific tasks.

Committees that scrutinise legislation are among the most important of these bodies. If the parliament determines that a particular bill requires more detailed examination and debate, it may constitute an ad hoc committee for this purpose, or refer the bill to an existing standing committee. In 1993, the parliament gave more formal shape to this system by setting up 17 “department-related standing committees,” each of which looked at legislation proposed by one or more of the central ministries. These committees have a mandate to invite expert testimony, the views of members of relevant industries, and opinions from common citizens. They also have the power to summon government officials responsible for any bill under scrutiny, and ask them to explain the thinking behind it. Based on these inputs, the committees produce reports that are then tabled before both houses of parliament.

Although their recommendations are not binding on the government or the parliament, these committees have always influenced the parliamentary agenda, and legislative outcomes. In most cases, if a committee recommends rejecting a bill referred to it, the government doesn’t push ahead with the proposed law. For example, in 2010, the UPA government introduced before the parliament the National Identification Authority of India Bill, intended to regulate the Aadhaar project. The bill was referred to a standing committee, which criticised it severely and declared it “unacceptable,” pointing out, amongst other flaws, its potentially adverse implications for national security. The government did not attempt to pass the bill thereafter, though Aadhaar enrolments continued.

Committees can also influence policy by recommending additions or deletions to bills. In 2007, a standing committee examined the Information Technology (Amendment) Bill, 2006. After listening to a number of stakeholders, the committee suggested several changes to the draft before it. While the original version of the bill allowed internet intermediaries—such as service providers and search engines—a high degree of legal immunity for automatic transactions made through them, the committee recommended that such immunity be granted only in cases where they exercised “due diligence.” This seemingly small suggestion, which was included in the version of the law that finally passed, significantly increased the costs of operating an internet intermediary in India.

In some instances, committees’ recommendations can benefit private industries. For example, the standing committee that examined the Pesticides Bill, 2008, recommended that the government increase the “data exclusivity” period for pesticides from the three years stipulated in the draft bill to five years. This meant that any test data generated on its products by one pesticide manufacturer would be inaccessible to its competitors for five years. If competing firms wanted to manufacture a pesticide similar to one put out by a rival before the data exclusivity on it expired, they would have to replicate the required tests, incurring additional expense and driving up the prices of their product. Again, the suggestion was accepted by the government, though the bill is yet to be enacted into law.

Such clear evidence of these committees’ power strengthens the case, in keeping with public interest, for making them fully transparent. But against that transparency stands the doctrine of “parliamentary privilege.” Its primary function is to ensure that no legislator can be arrested or sued by any authority outside parliament for anything said in parliament. But both in India and in the United Kingdom, where the idea originated, the provisions of parliamentary privilege have not been strictly codified. As a result, they have evolved to include the power to punish people for “contempt of parliament,” and to ensure the confidentiality of committee deliberations.

India makes far greater use of the confidentiality presently afforded by parliamentary privilege than the United Kingdom does. There, all written submissions to parliamentary committees are usually published online, and committees’ proceedings, including depositions by witnesses, are normally broadcast, either on television or the internet. Confidentiality may be exercised, but only as an exception, not a rule.

In India, confidentiality is ingrained in parliamentary committees’ procedures. The rules of conduct for both the Lok Sabha and Rajya Sabha allow committees discretion over whether to table the records of their proceedings before parliament. Not all parliamentary committees use this provision, but there have been numerous instances of committees doing so—as with all the bills mentioned above. In one instance, when I applied under the Right to Information Act to see records of proceedings of a committee examining the Drugs and Cosmetics (Amendment) Bill, 2013, my application was rejected on the grounds that the material circulated to a committee was confidential as per the rules of parliamentary procedure, and that information covered by parliamentary privilege was exempt under the RTI Act. Only the information a committee chose to table in parliament was open to the public, the reply said.

The Central Information Commission, which oversees the implementation of the RTI Act, has largely refrained from ruling on the validity of RTI applications rejected by the parliament. Usually, it refers these applications to the speaker or chairperson in parliament, and asks them to take a final call. The default rule, thus, has always been one of confidentiality based on parliamentary privilege.

India is also far more restrictive in the limits it imposes on witnesses who depose before parliamentary committees. The United Kingdom does not bar witnesses from making the details of their submission public before presenting them to a committee. The “Guide for witnesses giving written or oral evidence to House of Commons select committees” only makes clear that those who do make their submissions public may not enjoy the immunities of parliamentary privilege. But if the submissions are published by the parliamentary committee after scrutiny, the witness will once again enjoy complete immunity.

In India, however, most press releases inviting oral and written submissions before parliamentary committees carry this threatening sentence: “The memoranda submitted to the Committee, would form part of the records of the Committee and be treated as confidential. Any violation in this regard would constitute a breach of privilege of the Committee.”

The rule of default confidentiality was reaffirmed in 2009, when the Lok Sabha’s Committee of Privileges examined the case of Sudheendra Kulkarni, a journalist and one-time member of the Bharatiya Janata Party. Kulkarni, along with others in the BJP, allegedly engineered a sting operation to prove that the ruling UPA had tried to bribe BJP MPs during a crucial vote on the Indo-American nuclear deal. Kulkarni disclosed the proceedings of a committee investigating the resulting scandal to the media, and the privileges committee was asked to determine whether he had committed a “breach of privilege.”

Kulkarni argued that he had merely exercised his fundamental right to free speech, but the committee shot down this argument by citing a relevant Supreme Court judgement. Since the right to free speech and parliamentary privilege are both based on the constitution, the committee held that the two had to be reconciled. The only way to do this, according to the committee, was to put parliament’s power to set its own procedures before the fundamental right. It found that Kulkarni had committed a breach of privilege, and formally chastised him for it.

The privileges committee has also made other arguments to justify confidentiality. In a 2008 report, it described secrecy as essential to the functioning of the committee system. It said: “The free and fair deliberations by members of the Committee, cutting across party lines; and frank depositions by witnesses, who feel secure under the protective layer of parliamentary immunity with respect of their depositions before the Committee, make the Committee’s deliberations truly effective.” This is a similar argument to that made by the bureaucracy to shield “file notings,” the internal deliberations of the bureaucracy, from RTI requests. But in a 2006 ruling, the Central Information Commission rejected this view, and brought notings under the act’s purview, increasing the government’s accountability to the people.

The 2008 report also stated: “If the proceedings which also comprise of depositions given in confidence were to be made available to a citizen at any point of time after laying of the Report of the Committee on the Table of the House, the witnesses who gave depositions would be put to grave risk vis-à-vis retributive action against them for having come out frankly with facts before the Committee by the affected parties.”

This is a surprising interpretation of the rules of parliamentary privilege. Lawmaking usually involves balancing the interests of different groups—depositions before committees rarely involve whistle-blowers making sensational disclosures that could result in threats to their lives. In any case, where such a risk arises, a committee can provide a witness with police protection and, making an exception, withhold the name of the testifier or the testimony in question from the public.

Insisting on the confidentiality of proceedings as a rule can be harmful. Special interest groups may provide committees with incorrect or slanted information, and without public scrutiny it is impossible for neutral parties to counter them. From an academic perspective, the present secrecy makes it difficult for researchers to study and understand the forces which shaped particular laws.

Transparency in all parliamentary processes should be the default, and confidentiality an exception. How can a democracy be for the people, of the people and by the people, if vital aspects of lawmaking are hidden from the public?

In February 2014, the United Progressive Alliance government announced a new policy that significantly increased the transparency of India’s lawmaking process. The “pre-legislative consultative policy” mandated that every proposed bill be made available for public scrutiny before its introduction in the parliament. Prior to this, several government ministries had effectively treated draft laws as secret until they came up for legislative scrutiny.

Since debates on the floors of both houses of the legislature are televised, and since the parliament maintains publically accessible, verbatim records, the country’s parliamentary proceedings are already transparent. With the new policy, it appeared that, from conception to passage through parliament, every part of a law’s creation would now be conducted entirely in the public’s view.

But, in fact, a key aspect of lawmaking is still relatively hidden from public scrutiny. Apart from being debated in the parliament, most bills are also discussed in depth in meetings of parliamentary committees, which can exercise great influence over proposed legislation. These committees’ deliberations remain largely confidential. Officially, legislators cite “parliamentary privilege” to justify this. This confidentiality is worrying, since it is entirely conceivable that in some parliamentary committees, powerful forces with hidden agendas affect our legislation, with the public unaware of it.

Parliamentary committees, which India inherited from the United Kingdom’s parliamentary system, comprise groups of MPs with specific responsibilities—from scrutinising government accounts to overseeing legislators’ ethical conduct. They include both standing committees—permanent bodies whose membership is regularly renewed—as well as “ad hoc” committees—constituted from time to time to carry out specific tasks.

Committees that scrutinise legislation are among the most important of these bodies. If the parliament determines that a particular bill requires more detailed examination and debate, it may constitute an ad hoc committee for this purpose, or refer the bill to an existing standing committee. In 1993, the parliament gave more formal shape to this system by setting up 17 “department-related standing committees,” each of which looked at legislation proposed by one or more of the central ministries. These committees have a mandate to invite expert testimony, the views of members of relevant industries, and opinions from common citizens. They also have the power to summon government officials responsible for any bill under scrutiny, and ask them to explain the thinking behind it. Based on these inputs, the committees produce reports that are then tabled before both houses of parliament.

Although their recommendations are not binding on the government or the parliament, these committees have always influenced the parliamentary agenda, and legislative outcomes. In most cases, if a committee recommends rejecting a bill referred to it, the government doesn’t push ahead with the proposed law. For example, in 2010, the UPA government introduced before the parliament the National Identification Authority of India Bill, intended to regulate the Aadhaar project. The bill was referred to a standing committee, which criticised it severely and declared it “unacceptable,” pointing out, amongst other flaws, its potentially adverse implications for national security. The government did not attempt to pass the bill thereafter, though Aadhaar enrolments continued.

Committees can also influence policy by recommending additions or deletions to bills. In 2007, a standing committee examined the Information Technology (Amendment) Bill, 2006. After listening to a number of stakeholders, the committee suggested several changes to the draft before it. While the original version of the bill allowed internet intermediaries—such as service providers and search engines—a high degree of legal immunity for automatic transactions made through them, the committee recommended that such immunity be granted only in cases where they exercised “due diligence.” This seemingly small suggestion, which was included in the version of the law that finally passed, significantly increased the costs of operating an internet intermediary in India.

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Prashant Reddy Thikkavarapu studied law at the National Law School of India University and Stanford Law School, and is currently a research associate at the school of law at Singapore Management University. He tweets as @preddy85.

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