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 LEGAL FRAMEWORK FOR THE
PARLIAMENTARY OVERSIGHT OF THE
EXECUTIVE IN INDIA
Anirudh Burman*
The needfor a strong monitoring mechanism of the Executive in India has
been made clearerby recent allegationsofcorruptionagainsthigh-ranking
officials of the central government. The Indian Parliamentis the ideal in-
stitution to perform such a monitoringfunction through oversight of the
central executive. The Executive in India is directly accountable to the
Parliament.Making oversight by Parliamentstronger and more effective
would therefore increase the accountabilityof the executive. Additionally,
an increased oversight role would allow for greater policy inputs from
Parliamentto the executive. It would also increase the generallevel of ex-
pertise within Parliamentby making parliamentariansmore technocratic
and giving them greater avenuesfor specialization in different aspects of
policymaking This has held true in varying degrees in different countries as
examined in this paper.Enactinga law thatformalizes mechanisms ofover-
sight within Parliament,especially within the committee system, can create
such aframework in India. The centralfocus of a strong oversightframe-
work is the system of parliamentarycommittees. Reinvigorating existing
committees by giving them greater autonomy, clearerpowers and research
support are central tenets of the proposals made in this paper.Along with
restructuringparliamentarycommittees, the incentive structurefor Indian
parliamentariansto conduct oversight is also examined, andproposals are
suggested to ensure they perform their oversightfunction effectively. Such
a law should reshape the way Parliamentarybusiness is conducted with a
view to holding government accountable, while at the same time allowing
the centralexecutive to function independently, and with greaterefficiency.

I. INTRODUCTION
Allegations of corruption against those holding high political
and executive offices have become a prominent feature of the Indian political

* B.A, LL.B. (Hons.), West Bengal National University of Juridical Sciences, Kolkata; L.L.M.,
Harvard Law School; Consultant, National Institute of Public Finance and Policy, and the
Centre for Policy Research, Delhi. I would like to acknowledge the inputs and supervision of
Prof. Mathew Stephenson, my supervisor in Harvard Law School. In addition I would like to
acknowledge the inputs, help and support of Mr. M.R. Madhavan, Ms. Kaushiki Sanyal, Ms.
Tonusree Basu, Mr. Madhav Khosla, Ms. Namita Wahi, Ms. Ashna Ashesh, and Ms. Vasudha
Reddy.
388 NUJJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

landscape over the last decade. Illustrative of the heightened corruption in re-
cent times are the 2G scam- where a number of allegations were raised regard-
ing the pricing and allocation of spectrum; the alleged irregularities in relation
to the Coalgate scam, wherein as per CAG reports, allocation of coal blocks in
the absence of competitive bidding had led to a major loss in revenue; and the
organization of the Commonwealth Games, 2010. All of these cases involved
financial irregularities on a massive scale.'

Civil society organizations responded with demands for an inde-

pendent ombudsman-like (Lokpal) body to be created for checking corruption. 2
The demand for such a body gained widespread support after which a modified
version of the Bill was also passed in the Lok Sabha.3

The creation of an independent ombudsman may be legitimate in

the Indian context, but these alleged incidents of corruption also highlight the
lack of monitoring by existing institutions. The alleged irregularities took place
over a considerable period of time, yet no investigative or oversight agency
took preventive action. This is because the executive does not have effective
monitoring mechanisms in place and because existing legal institutions do not
perform oversight effectively. In the absence of effective executive action and
the failings of the existing oversight mechanisms, this paper argues that with
sufficient changes to its existing framework, the Indian Parliament is ideally
suited to perform an oversight role.

The Indian Parliament has historically played a limited role in

overseeing executive agencies. This paper shows that there is little regular
oversight of executive agencies apart from the activities of the three financial
committees i.e. the Public Accounts Committee, the Committee on Estimates,
and the Committee on Public Undertakings. In the last two decades or so, this
lack of regular monitoring has increased.

The Parliament currently largely limits its involvement to an

ex-post investigation into allegations of wrongdoing. Such investigation by
joint parliamentary committees is just one investigation among others being
conducted by investigative agencies. Mechanisms for ex-ante oversight by

See CAG Reports Point to Rs 3 Lakh Crore 'Scam', THE FINANCIAL EXPRESS (New Delhi)
August 17, 2012, available at http://www.financialexpress.com/news/cag-reports-point-to-rs-
3-lakh-cr-scam/989518 (Last visited on October 8, 2013) (In the case of issuance of spec-
trum by the Department of Telecommunications, the CAG estimated a presumptive loss of
Rupees one lakh seventy six thousand crore (USD 35 Billion at current exchange rates). In the
Coalgate scam, the CAG estimated a presumptive loss of Rupees one lakh eighty six thousand
crore).
2 NDTV, What is the Jan Lokpal Bill, Why it's Important,August 16, 2011, available at http://
www.ndtv.com/article/india/what-is-the-jan-lokpal-bill-why-its-important-96600 (Last vis-
ited on March 21, 2012).
3 The Bill was not passed in the upper house, and so has not been enacted into law.

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 389

Parliament would be much more effective in preventing executive indiscretion.

This paper proposes new mechanisms to facilitate such scrutiny.

Accordingly, this paper creates a legal framework to modify the

existing structure of parliamentary oversight. The main tenets of this frame-
work are to substantially alter the structure and powers of existing parliamen-
tary committees and to rework the inter-relationship between parliamentary
committees and proceedings in the upper house and lower house. The viability
of such structural modifications can also be seen in the guidelines for parlia-
mentary reform suggested in the United Kingdom.'

The second part of this paper elaborates upon the relationship be-
tween the executive and the legislature, and how inter-branch accountability
and separation-of-powers need to be balanced to enable higher efficiency in
government. It also examines the broader objective of having strong parliamen-
tary oversight.

The third part of this paper provides a short overview of different

forms of oversight in India. The fourth part provides a comparative analysis of
oversight related mechanisms in legislative bodies in other democracies with
special emphasis on the US Congress. While oversight in the US is predicated
on a clear separation of powers between the executive and the legislature, it is
equally based on the system of checks and balances between the two branches.
This is different from the Indian system where a clear separation of powers
does not exist. The principle of checks and balances is the basis for examining
Congressional mechanisms for oversight over the executive. Along with the
US, South Africa and UK are also examined. The UK is important since the
Indian Parliamentary system is based largely on the Westminster model. More
importantly, the literature on the need for parliamentary reform in the UK is
also relevant for any remodeling of the Indian framework.

The last part of this paper lays out an elaborate framework to en-
hance and invigorate parliamentary oversight in India. It is proposed that the
structure of the existing committee system be remodeled to allow for greater
expertise and focused scrutiny. A central principle of this and other proposed
reforms is to balance the independence of the executive with the need for
oversight. The independence of the executive is necessary to allow the demo-
cratic majoritarian electoral process to function efficiently by preventing un-
necessary obstructionism by the opposition. Strong oversight should inform

4 See Report of the Hansard Society Commission on Parliamentary Scrutiny, The Challengefor
Parliament:Making GovernmentAccountable, 83, 85, available at http://www.hansardsociety.
org.uk/wp-content/uploads/2012/ 10/The-Challenge-for-Parliament-Making-Government-
Accountable-2001.pdf (Last visited on October 8, 2013).
Louis FISHER, THE POLITICS OF SHARED POWER 5 (4 th ed., 1998).

July - September, 2013

390 NUJJS LAW REVIEW 6 NUJS L. REv. 3 (2013)

administrative efficiency rather than obstruct it. The proposals outlined in this
paper ensure this balance is maintained.

This paper also examines the incentive structure of parliamentar-

ians acting as committee members. This paper proposes to increase incentives
for the performance of their oversight role. Any proposal for reform that either
fails to rework the existing incentive structure for parliamentarians, or imposes
too onerous a burden for oversight may not be effective.

II. EXECUTIVE-LEGISLATIVE RELATIONS

AND THE NECCESSITY FOR OVERSIGHT
The principle of parliamentary sovereignty assumes accountabil-
ity of the elected executive to the legislature, and oversight is an important part
of ensuring accountability. J.S. Mill, wrote in 1861:

"The proper office of a representative assembly is to watch

and control the government: to throw the light of publicity
on its acts; to compel a full exposition and justification of
all of them which anyone considers questionable; to censure
them iffound condemnable, and, ifthe men who compose the
government abuse their trust, or fulfill it in a manner which
conflicts with the deliberatesense ofthe nation, to expel them
from office ... ".6 (emphasis added).

Woodrow Wilson, in his epochal book Congressional Government,

reiterated the same with respect to the oversight role of the US Congress:

"Unless Congress have and use every means of acquaint-

ing itselfwith the acts and dispositions of the administrative
agents of government, the country must be helpless to learn
how it is being served; and unless Congress both scrutinize
these things and sift them by every form of discussion, the
country must remain in embarrassing,crippling ignorance
of the very affairs which it is most important it should under-
stand and direct".' (emphasis added).

6 MILL, J.S., CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT (1861) as quoted in Friedberg

and Hazan, Legislative Oversight: Comparative Assessment of Parliaments Note, avail-
able at http://www.cid.suny.edu/capnotesl/LegislativeOversight 071112.pdf (Last visited on
October 25, 2013).
WOODROw WILSON, CONGRESSIONAL GOVERNMENT 303 (1885) as quoted in Walter J. Oleszek,
CongressionalOversight: An Overview, Congressional Research Service, February 22, 2010,
available at http://www.fas.org/sgp/crs/misc/R41079.pdf (Last visited on October 25, 2013).

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 391

As may be seen, oversight is largely assumed to be beneficial to

the democratic process, but doesn't the requirement of continuous legislative
monitoring of the executive impede the implementation of the majority parties'
policy goals? One answer may be that oversight actually aids in such imple-
mentation by ensuring bureaucrats comply with the majority's policy goals.9
Another response could also be that oversight ensures that politically expedient
short-term goals of the majority do not sideline more urgent, long-term goals.

Woodrow Wilson said that oversight is at least as important a

function of the legislature as legislation. Rick Stapenhurst and Riccardo Pelizzo
show interesting correlations between oversight mechanisms and a given form
of government.0 Their research shows that with an increase in the number of
oversight mechanisms within a political system, the likelihood of government
being potentially subject to control and thus being more democratic, increases.
Is greater democratization then, a sufficient end for increasing oversight mech-
anisms? Democracy arguably also has to be balanced with political stability for
ensuring administrative efficiency. Usually constitutions provide the frame-
work for finding such balance. However, it is really political institutions in their
discharge of constitutionally mandated functions that determine where this
balance is located. The following portion provides a detailed justification for
stronger oversight while seeking to balance the need for oversight with other
considerations discussed above.

A. JUSTIFICATION FOR OVERSIGHT

Any argument for oversight must begin with an examination of

the nature of the executive-legislature relationship. Anthony King argues for
looking beyond the 'Montesquieu formula'." Analyzing the British parliamen-
tary process, he argues that even within the majority, the government, and the
backbenchers need to be thought of separately. They are interdependent, and
from the government's point of view, their need of backbencher's votes makes
them the most important constituent of Parliament.

This analysis does not hold completely true for India because of the
existence of the anti-defection law.' 2 The law penalizes parliamentarians who

Bert A. Rockman, Legislative-Executive Relations and Legislative Oversight, 9 LEGISLATIVE

STUDIES QUARTERLY 387, 416 (1984).
9 Frederick Stapenhurst & Ricardo Pelizzo, A Bigger Role for Legislatures, Finance &
Development, IMF 39 (2002), available at http://www.imf.org/external/pubs/ft/fandd/2002/12/
stapenhu.htm#author (Last visited on January 16, 2012).
1o Ricardo Pelizzo & Rick Stapenhurst, Democracy and Oversight in PARLIAMENTARY OVERSIGHT
FOR GOVERNMENT ACCOUNTABILITY 6-22 (2006).
Anthony King, Modes ofExecutive-Legislative Relations: Great Britain, France, and West
Germany, 1 Legislative Studies Quarterly 11, 11 (1976), available at http://wwwjstor.org/sta-
ble/pdfplus/439626.pdf?acceptTC true (Last visited on October 25, 2013).
1 Constitution of India, 1950, Tenth Schedule.

July - September, 2013

392 NUJJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

disobey the party whip with disqualification from the Parliament.13 However,
his point that both the executive and the legislature are composed of smaller
constituents is well taken. For the basis of our analysis, the legislature in-
cludes all parliamentarians except those that constitute the government. The
two main constituent groups of parliamentarians then are majority members
who are not part of the government, and opposition members. As King notes
about the British Parliament, "the dice used in the game are loaded heavily in
the Government's favor. The Opposition lacks all the things that Government
backbenchers lack- information, expertise, day-to-day involvement in govern-
ing, moral authority-and much else besides"."

The same observation is true about the two groups of parliamen-

tarians in India. In effect, this group forms the main oversight body for the
government. This division of the legislature into smaller sub divisions of those
who form part of the executive, and those who don't (including members of the
majority party) also helps provide a clearer basis for examining the need for
oversight.

Rebecca L. Brown argues for the importance of greater powers of

legislatures by challenging assumptions of the purpose of political accountabil-
ity." Her paper aims to prove the legitimacy of unaccountable judicial review
in the face of conventional arguments of the judicial branch being unelected
and therefore unaccountable to citizens. She says that this conflict can be re-
solved if majoritarian rule itself is seen as a mechanism to protect individual
liberty, rather than individual rights. Therefore only a politically accountable
government could sustain a judiciary committed to the protection of individual
rights.16 According to her, writers in the early part of the twentieth century
argued that legislatures are better forums for achieving policy goals than other
branches. Their proposition had nothing to do with political accountability.'
This argument has important implications for the unelected executive as well.

Arguably, stability or efficiency is in fact a value to be balanced

against greater democratization. This argument could be given weight in the
context of some particular features of the Indian democracy. First, unlike the
US presidential system of government, India does not have strict separation
of powers between the legislature and the executive. The executive is at least
formally accountable to the Parliament. Second, administrative stability is of

13 AnirudhBurman, The Anti-Defection Law: Intent and Impact, November 23, 2009, available
20
at http://www.prsindia.org/administrator/uploads/media/Note% on/ 2OAnti-Defection.pdf
(Last visited on December 27, 2013).
14 Anthony King, Modes of Executive-Legislative Relations: Great Britain, France, and West
Germany, 1 LEGISLATIVE STUDIES QUARTERLY 11, 18 (1976).
Rebecca L. Brown, Accountability,Liberty, and the Constitution,98 COL. L. REV. 531, 533-34,
(1998).
16 Id., 534 - 36.
1 Id., 546-47.

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 393

real value to a democracy like India where instability may lead to serious gov-
ernance crises. Though this fear is not empirically borne out in India, the risk
of serious administrative instability crippling economic growth is theoretically
possible.

Most important however, is the structural factor. In India, as op-

posed to systems with strict separation of powers, the Parliament is not the ini-
tiator of legislation. Legislation is drafted by the government and then debated
and passed by the legislature. Laws are debated, sometimes modified by the
Parliament, but rarely initiated within Parliament. Consequently the primary
function of the Parliament in India is to hold the government accountable.

Representative governments can both protect and endanger

rights. However, the oversight function is designed for more than the protection
of explicit legal rights. If used properly, oversight should increase governmen-
tal efficiency and thereby indirectly promote greater enjoyment of rights. In
this context, it is important to understand that parliamentary oversight is not
just an increased democratization of the administrative machinery. It should
also lead to an increase in technocratic values among elected representatives.
In other words, this notion is not simply a "preanalytichostility to the modern
administrativestate, an anti-bureaucraticpastoralism thatfeeds on nostalgia
for simpler,more integratedtimes."(emphasis added).'

Edward Rubin argues that the notion which advocates that leg-
islators, not bureaucrats, should make policy decisions is problematic. 9 One
way he does this, is by debunking the purposes of elections. The representative
purpose of election serves to elect not the most talented and capable person, but
the one that the electorate can identify most with. According to Rubin, this is
the opposite of accountability since voters are really choosing someone likely
to share their perspective rather than someone who would rely on instructions
to do what the superior wants, regardless of his personal views.20

This conception seems overly simplistic. Though Rubin concedes

that holding a representative accountable is another function of elections, he
subordinates it to succession and representation. 2' However, representation and
accountability are not as clearly distinguishable from one another as Rubin
makes out. Certainly, it would be difficult to impute these two as clearly sepa-
rable motives to the electorate when voting.22 It is easier to argue that voters

* Edward Rubin, The Myth ofAccountability and theAnti-Administrative Impulse, 103 MICH. L.
REV. 2073, 2075 (2005).
19 Id., 2076.

20 See Rubin, supra note 18, 2078 - 79.

21 Id.

22 See Laura Seide, Christian Henning & Svetlana Petri, Voter Behavior, Government Capture

and Accountability in African States: A Comparative Analysis based on Cross-Country

EstimationsofSpatial Voting, available at http://www.nai.uu.se/ecas-4/panels/61-80/panel-63/

July - September, 2013

394 NUJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

choose representatives who offer the best combination of representativeness

and accountability. Here the accountability function envisages how well the
representative will be able to deliver on his promises, rather than how well he
will take instructions. If this is the case, there is a persuasive justification for
creating a more technocratic political class that can deliver on its promises
better.

The justification for increasing technocratic skills within parlia-

mentarians is also related to the case made out by M. Shamsul Haque.23 His
contention is that while many states have changed the nature of the bureaucracy
to become more pro-market, such changes have themselves led to a situation
where bureaucratic accountability has eroded. Drawing on a variety of legal
systems from Latin America to South Asia, he shows how the bureaucratic role
is being reshaped from that of being an economic actor to being a supporter
of market-led growth. This transition is also noticeable in India with the crea-
tion of a number of regulators with varying degrees of independence from the
executive.

Thus the justification for increased parliamentary oversight in

India is not merely to hold the executive more accountable to voters. Another
important justification is to create a more efficient political class. An increase
in the Parliament's oversight functions would ideally incentivize legislators to
acquire and display better command over policymaking than members of the
executive. This increase in oversight would change due to a role in the nature
of parliamentary activities itself. With stronger incentives to conduct oversight,
Parliament collectively becomes more technocratic. 24

Laura-Seide-Christian-Henning-and-Svetlana-Petri.pdf (Last visited on October 8, 2013)("In

reality elections are no deterministic process and therefore hard to predict. People do not
always vote for the party that seems to provide the highest utility ...We would expect different
groups of people to vote out of diverse reasons").
23 M. Shamsul Haque, BureaucraticAccountability in a Pro-Market State, 19 INTERNATIONAL
POLITICAL SCIENCE REVIEW 357(1998).
24 David Epstein & Sharyn O'Halloran, Legislative Organization under Separate Powers, 17
JOURNAL OF LAW, ECONOMICS AND ORGANIZATION 371, 374 (2001) (Talking about the advantage
of strong committees in the US Congress).

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 395

Many have commented on the incentives for elected representa-

tives to engage in parliamentary work in India.2 5 The anti-defection law26 plays
a significant part in reducing incentives for individual initiative in Parliament,
but members utilize whatever opportunities they have to speak independently.
The debate on the Educational Tribunals Bill, 2010 was an example where
members of the ruling party strongly criticized the government's position.27
Committees also usually function on a bipartisan basis. Committee reports in-
dicate a willingness to question government policies and motives irrespective
of party associations.

The discussion above allows for the statement of some concrete

reasons for conducting oversight in India. Morton Rosenberg states many rea-
sons for the US Congress oversight. 28 Some of these are relevant for India and
are mentioned below:

* Ensure that the executive complies with legislative intent;

* Improve the efficiency and effectiveness of governmental performance;

* Evaluate program performance;

2 See Devesh Kapur & Pratap Bhanu Mehta, The Indian Parliament as an Institute of
Accountability, available at http://casi.sas.upenn.edu/system/files/Indian+Parliament+-
+DK,+PBM.pdf (Last visited on September 26, 2013) (For more information on the status
of incentives existing to engage in parliamentary work); see Philip Keefer & Stuti Khemani,
Democracy Public Expenditures and the Poor, available at http://siteresources.worldbank.
org/EXTGOVANTICORR/Resources/3035863-1286395629347/WBRO.pdf (Last visited
September 26, 2013) (Illustrating how incentives to elected officials serve as a determining
factor in policy making through a comparative study involving the States of Kerala and Uttar
Pradesh); see Devesh Tiwari, Do Cleaner MPs Lead To a Cleaner Parliament,available at
http://policyblog.oxfordindiasociety.org.uk/2013/05/20/do -cleaner-mps-lead-to-a-cleaner-
parliament/ (Last visited September 26, 2013) ("Indeed the underlying problem in India
might be that MPs lack the incentives to vigorously pursue their duties..."); see Tarunabh
Khaitan, The Real Price of ParliamentaryObstruction, available at http://india-seminar.
com/2013/642/642 tarunabh khaitan.htm (Last visited September 26, 2013) (Khaitan, while
throwing light on how legislative agendas are operationalized in the Parliament, opines:
"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 opposi-
tion. 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").
26 Constitution of India, 1950, Tenth Schedule.
2 Dr. K. Keshava Rao, Member of the Ruling Indian National Congress Party during the
Debate in the Rajya Sabha on The Educational Tribunals Bill, 2010, 23 - 28, available at
http://rsdebate.nic.in/bitstream/123456789/403416/2/PD 220_31082010_pl6_p32_22.
pdf#search="educational%20tribunal" (Last visited on December 27, 2013).
2 MORTON ROSENBERG, THE CONSTITUTION PROJECT, WHEN CONGRESS COMES CALLING: A PRIMER ON
THE PRINCIPLES, PRACTICES, AND PRAGMATICS OF LEGISLATIVE INQUIRY 1 (2009).

July - September, 2013

396 NUJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

* Investigation of instances of poor administration, abuse, waste, fraud

and dishonesty;

* Protect individual rights and liberties.

Any legal framework for oversight should enable the Indian

Parliament to meet these objectives.

III. OVERVIEW OF OVERSIGHT MECHANISMS

IN INDIA
Parliamentary sovereignty usually implies the presence of a strong
executive that is accountable to Parliament. While the executive is convention-
ally held accountable by Parliament in a number of ways, this section demon-
strates that clinging to conventional notions of parliamentary sovereignty in
India has come at the cost of real accountability.

A. THE EXECUTIVE IN INDIA

The Indian Constitution makes the Council of Ministers with

the Prime Minister at its head, the functional head of the federal executive. 29
A minister has to be a member of one of the houses of Parliament, 30 and the
Council is collectively responsible to the House of the People. 31 This consti-
tutes the primary means of legislative control over the executive, since a motion
of 'no-confidence' in the Lok Sabha against the government forces the ruling
party/ coalition to prove its majority in the House.

Although in a parliamentary democracy, accountability is argu-

ably ensured indirectly through ministerial responsibility to Parliament; mech-
anisms of direct accountability do not seem to be working as intended. 32 For
example, provisions in statutes enacted by Parliament dictate that regulatory
agencies place regulations framed by them before Parliament. Although they
comply with this requirement, Parliament hardly, if ever examines these rules
in the houses. 33

29 Constitution of India,
1950, Art.74.
30 Constitution of India, 1950, Art.75(5).
31 Id., Art.75(4).
32 See generally Joy Marie Moncrieffe, Reconceptualizing Political Accountability, 19
INTERNATIONAL POLITICAL SCIENCE REVIEW 387 (1998).
33 Bulletin I ofLok Sabha, available at http://164.100.47.132/LssNew/Business/BulletnICurrent.

aspx (Last visited on December 27, 2013)( I collected data on the laying of regulations in
Parliament between February 2008 and December 2010. I also examined reports of the
Committees on Subordinate Legislation of both, the Lok Sabha (lower house) and the Rajya
Sabha (upperhouse)between April 2008 and December 2010, available at http://164.100.47.134/
committee/committee informations.aspx tLast visited on February 13, 20141. None of the re-
ports during this period pertained to regulations framed by independent regulators).

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 397

I argue that correcting the 'faulty design' issue and creating more
effective mechanisms of direct accountability of regulatory agencies are both
essential components of a good framework of legislative oversight.

1. Role in passing legislation

Though any Member of Parliament can introduce their own bill

(referred to as Private Member Bills), they almost never get passed (the last
Private Member Bill was passed in Parliament in 1970).34 The executive drafts
all legislation to be introduced in the Parliament. External input or consultation
is not mandated at the drafting stage.

Legislative scrutiny begins only once the bill has been completely
drafted. Once in Parliament, the Speaker/ Chairman usually assigns the bill
to the relevant Departmentally Related Standing Committee. The Committee
may recommend changes/modifications/ additions to the bill. The executive
may or may not agree to these recommendations before the bill is put to vote.

This aspect of executive power is crucial to the argument pre-

sented in this paper. Unlike presidential systems, on account of the dispropor-
tionate role the executive in India has in preparing legislation, bills usually tend
to reflect the policy preferences of the ruling party and more importantly, the
bureaucrats who draft it. This in itself reduces the incentive to create legislation
with strong mechanisms to monitor the executive.

Scholars have also commented on the general derogation of leg-

islative monitoring of executive functions since the early years of our inde-
pendence, particularly since the emergency imposed in 1975.35 This historical
advantage over the legislative branch has been arguably consolidated since the
Emergency. Both in 1965, and in 1978, reports of two committees of inquiry
acknowledged corruption within the bureaucracy, and observed that this is due
to the "sudden growth in administrative power and discretion". 36

34 The legislation was titled "The Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Bill, 1968". It was passed on August 9, 1970. See Shocker: Not a Single Private
Member Bill Passed Since 1970, February 14, 2010, available at http://www.prsindia.org/me-
dia/articles-citing-prs/shocker-not-a-single-private-members-bill-passed-since-1970-1020/
(Last visited on February 13, 2014); Rohit Kumar, Vital Stats: PrivateMember Bills in the Lok
Sabha, 2010, available at http://www.prsindia.org/parliamenttrack/vital-stats/private-mem-
bers-bills-in-lok-sabha-2010-1011/. (Last visited on December 27, 2013)(In the period between
2004 and 2009, only 14 out of 328 Private Member Bills in the Lok Sabha were discussed).
35 Arthur G. Rubinoff, The Decline ofIndia's Parliament,4 THE JOURNAL OFLEGISLATIVE STUDIES
13, 24 (1998).
36 0. P. Dwivedi & R. B. Jain, BureaucraticMorality in India, 9 INTERNATIONAL POLITICAL SCIENCE
REVIEW 205, 206 (1988). Authors cite the Santhanam Committee of Inquiry Report of 1965,
and the Shah Committee of Inquiry Report of 1978.

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398 NUJJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

This erosion in standards and increase in corruption has been

attributed to the political heads in-charge of the executive. 37 However, politi-
cal heads of government departments also remain protected because of lack of
effective oversight mechanisms. This strengthens the argument that existing
mechanisms of ministerial responsibility to Parliament are not enough. While
governments have faced no-confidence motions in Parliament,38 a govern-
ment's defeat in a no-confidence motion is also a perceived indicator of politi-
cal instability. This arguably decreases faith in political processes rather than
restoring faith in mechanisms of political accountability.

2. Parliament and the Parliamentary system

Unlike the US Constitution, 39 the Indian Constitution does not ex-

plicitly assign legislative power to Parliament.40 It details the procedure regard-
ing the passage of legislation' and the transaction of financial business.4 2

Parliament convenes at the pleasure of the President (read rul-

ing government) thrice a year. Though the number of sessions in a year has
remained mostly consistent, the number of days Parliament works every year
has gone down considerably.4 3 Though this has also been complemented by
the growth of departmentally related committees, as the subsequent pages il-
lustrate, their effectiveness has not been great enough to offset this reduction
of working days.

Additionally, there is no substantive mechanism to incentivize the

executive's accountability ex ante. While the Business Advisory Committee
consists of parliamentarians from most parties, the main task of the commit-
tee is to allot the amount of time for different business, rather than negotiate
what business should be conducted. 4 Negotiations over what business should
be transacted usually take place in informal settings, or on the floor of either
House, with the opposition disrupting proceedings to demand discussion on

37 See Rubinoff, supra note 35. Also see Kapur & Mehta infra note 53.
38 Governments have also faced no-confidence motions because it was alleged that they had lost
the support of the majority, and also because they were required to prove their majority on
particular policy issues (for example the no-confidence vote that the ruling UPA government
had to face on the issue of entering into a nuclear trade agreement with the US).
39 U.S. Constitution, Art.1.
40 List I of the Seventh Schedule contains an exhaustive list of subjects which the Parliament may
legislate on.
41 Constitution of India, 1950, Arts.107-111.
42 Id., Art. 111-118.
43 CV Madhukar, The Indian Parliament:Frozen in Time?, March 28, 2011, available at http://
casi.sas.upenn.edu/iit/madhukar (Last visited on 1/14/12) ("The number of sitting days has
come down from about 140 days a year in the 1950s to an average of sixty-five days over the
past five years").
44 The government also has a majority of the members within the Business Advisory Committee.

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 399

a particular issue. Either of the alternatives is an ineffective way to promote

accountability.

In the first case, while the ruling government and the principal op-
position party have sufficient power to settle on a common list of issues, Kapur
and Mehta'l argue that "in the practice of parliamentary opposition in India, the
opposition uses Parliament more to impugn the credibility of governments than
to exercise accountability for the sake of good governance."

They point out that due to structural reasons,46 opposition parties

do not have sufficient incentives for oversight and monitoring. Therefore, they
concentrate more on reacting to incidents and scandals rather than focus on
systemic changes. Another author takes a more extreme view and states that
Parliament as an institution has served more "as a public forum for the ventila-
tion of grievances"."

Rubinoff states that because of the suppression of the majority

Congress party in the 1980s, opposition members increasingly resorted to dis-
ruptive tactics." It is debatable to what extent majority suppression, rather than
undermining of structural systems, led to increased disruption. We have noted
earlier the decrease in the number of working days of Parliament every year.
With such decrease, the priority for government business would obviously in-
crease, also decreasing the time available for parliamentarians to raise other
issues of national importance. With scarce time available for raising their own
issues, the incentive for parliamentarians to indulge in disruptive behavior also
increases.

In this latter scenario where the business of either House is dis-

rupted, the business of the House is left unfinished, undermining whatever lim-
ited accountability a working Parliament would impose. Importantly, it affects
the legitimacy of the political class and the value of the Parliamentary process
in the public sphere.

3. The committee system and its problems

While scholars have noted that the Indian government accepts a

large proportion of committee recommendations, 9 this paper would like to ar-
gue against the overall effectiveness of the committee system at present. 0 First,
45 Kapur & Mehta, infra note 53, 10.
46 Id.
4 See Rubinoff, supra note 35.
48 Id.
49 Arthur G. Rubinoff, India's New Subject Based ParliamentaryCommittees, 36 ASIAN SURVEY
723, 735, (1996).
5o Data collated by me also indicates that the number of recommendations for budgetary de-
mands accepted over a five-year period between 2004-08 ranged from 46 - 50%. Anirudh

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400 NUJJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

a mere study of the number of recommendations accepted is not always an ac-

curate barometer of effectiveness. Committee reports contain both important
policy recommendations, as well as minor recommendations concerning usage
of particular words. It is therefore difficult to accurately state that the recom-
mendations accepted were critical to government policy on a particular issue.

Second, Departmentally Related Standing Committees ('DRSCs')

do not pay sufficient attention to a broad range of government policies in the
first place. Most DRSCs look primarily at budget documents, bills referred to
them, and other policy issues under their jurisdiction. A perusal of the list of
reports prepared by most DRSCs show an alarmingly low proportion of reports
on policy issues. To be fair, the Committee on Estimates looks at policy issues
related to financial allocations made by the government," and the PAC looks
at reports of the Comptroller and Auditor General (a constitutional auditor of
the finances of the central government) on government expenditure.5 2 However,
additional factors limit the effectiveness of their work as well as the DRSCs.

One such factor is the problem that hardly any of these reports
prepared by parliamentary committees is ever discussed on the floor of either
house.5 3 Other scholars have also highlighted this as a major issue limiting
Parliament's ability in holding the executive accountable. For example, Kapur
and Mehta note that committee reports have limited effect since:

"'ost committee reportsare not tabledfor deliberation and

discussion in Parliament at all. The dilemma is that if the
committee reports are at variance with the government, the
majority has no interestin having them tabled; however, if
they broadly uphold the government'sposition, they are con-
4
sidered superfluous".1 (emphasis added).

Third, a bare perusal of certain committees of the US House of

Representatives indicates a much higher number of non-legislative activity over

Burman, FinancialOversight by Parliament:Background Note for Conference on Effective

Legislatures,November 15, 2010, available at http://www.prsindia.org/administrator/uploads/
20
media/Conference%20note/Conference% 20note%/o on 20financial%/o20oversight.pdf (Last
visited on December 27, 2013). I would like to acknowledge the contribution of Ms. Esha
Singh Alagh towards the collation of this data.
5 COMMITTEE ON ESTIMATES, Lok Sabha, Introduction, available at http://164.100.47.134/commit-
tee/committee informations.aspx (Last visited on December 27, 2013).
2 COMMITTEE ON PUBLIC ACCOUNTS, Lok Sabha, Introduction, available at http://164.100.47.134/
committee/committee informations.aspx (Last visited December 27, 2013.
53 Devesh Kapur & Pratab Bhanu Mehta, The Indian Parliament as an Institution of
Accountability in DEMOCRACY, GOVERNANCE AND HUMAN RIGHTS, available at http://casi.ssc.up-
enn.edu/system/files/Indian+Parliament+-+DK,+PBM.pdf (Last visited December 27, 2013).
54 d.

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 401

a period of twelve months." While such data is hardly exhaustive, the amount
of non-legislative work done by Indian DRSCs in the Lok Sabha is considerably
less. For example in 2011, the Committee on Agriculture56 examined just two
new subjects" compared to twenty-eight" by its counterpart in the US House
of Representatives.

Fourth, there is a considerable time lag in the response provided

by the government. Action Taken Reports on the annual budget take between
6 - 10 months to be presented in the houses of Parliament." This is even though
the annual budget of the central government is passed in the same session in
which the budget is tabled in Parliament. The rules of the Lok Sabha mandate
that the House consider the "Demand for Grants" (budgetary allocations de-
manded by ministries) in light of the reports of the committees. 60 In practice,
the House does not discuss most of the Demands. Most of the Demands not
discussed are 'guillotined' (passed without discussion with the consent of the
House) by the Speaker.61

Fifth, the process of preparing an Action Taken Report is there-

fore redundant. By the time of its publication, the financial year is almost over.
Moreover, any demand for getting a Minister to depose before a committee
has to be approved by the Speaker in addition to the fact that the ministers
are not part of committees. Senior bureaucrats usually depose before commit-
tees on behalf of their department. 62 Kapur and Mehta point out that a high
turnover of bureaucrats often oblige one bureaucrat to defend the actions of his

11 In 2011, the Committee on Financial Services (sub-committees included) held and reported 86
non-legislative hearings. The Committee on Agriculture managed 28, while the Committee
on Armed Services and the Committee on Budget managed 93 and 17 respectively (H.R. Rep.
No. 112-355, at 271-73 (2011), H.R. Rep. No. 112-340 (2011), and H.R. Rep. No. 112-359 (2011)
respectively).
56 DEPARTMENTALLY RELATED STANDING COMMITTEE ON AGRICULTURE, ReportsPresented,available
at http://164.100.47.134/committee/committee informations.aspx (Last visited on December
27, 2013).
5I have not considered reports titled 'Action Taken Reports'. These are reports based on the
response of the government department to an earlier report. Adding these, the number goes up
to 15.
5 FREDERICKM. KAISER, WALTER J. OLESZEK, TJ HALSTEAD, MORTON ROSENBERG & T.B. TATELMAN,
CONGRESSIONAL OVERSIGHT MANUAL, CONGRESS OF THE UNITED STATES: OVERSIGHT, PROCESSES
AND PROCEDURES 2 (Carol S. Plesser ed., 2007).
59 See Burman, supra note 50.
60 Rules and Procedures and Conduct of Business in Lok Sabha, Rule 331G (14th ed. Lok Sabha
Secretariat), 2010, available at http://164.100.47.132/LssNew/rules/rules.aspx (Last visited on
December 27, 2013).
61 Nearly 90% of the demands were guillotined every year between 2004-05 and 2009-10. See
Burman, supra note 50, 1-2. See also Rubinoff, supra note 35, 25.
62 Directions by the Speaker under the rules of procedure and conduct of business inLok Sabha,
Rule 59(1) (7 th ed. Lok Sabha Secretariat) (2010), available at http://164.100.47.132/LssNew/
direction/direction.aspx (Last visited on December 27, 2013).

July - September, 2013

402 NUJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

predecessor. 63 They point out that by not requiring a minister to appear before a
committee, "Parliament appears to be defending one of its own". 64

Sixth, committees are usually reconstituted every year. This pre-

vents expertise from developing within the membership of the committee. The
frequent turnover leads to fluidity in terms of seriousness, expertise, and focus.
Committees are often unable to finish their stated agenda by the time their term
is over.

Seventh, most DRSCs do not have adequate research or sup-

port personnel in comparison to the manpower at the disposal of individual
Congressmen and Congressional committees in the U.S. The existence of ad-
equate research staff is even more crucial to a committee system with a high
turnover. Individual parliamentarians also do not get any personnel, or allow-
ance for personnel for conducting research. Consequently there is a huge asym-
metry of information between the executive and Members of Parliament.

Lastly, the organization and administration of the committees

leave much to be desired. For one, there is no concept of creating sub com-
mittees like in the US Congress. Even though the rules clearly permit it,65 they
are extremely rare, and certainly no permanent subcommittees exist under the
DRSCs. Most committees in the US House of Representatives at least, have a
specific oversight subcommittee as well. 66 In the US Congress, sub committees
do a sizeable amount of work compared to the main committee. 67 Additionally,
while a vote by a majority of the quorum is required for conducting the ac-
tual business, only a few parliamentarians interested in the issue usually work
within the committee. 68 The present committee system in India is therefore far
from ideal.

4. Current monitoring of delegated legislation

Delegated legislation deserves discussion because it is the chief

mechanism by which executive power is exercised. McCubbins, Noll and
Weingast point out the problem elected representatives face in ensuring that

63 See Kapur & Mehta, supra note 53, 12.

64 Id.
65 See Directions by the Speaker under the rules of procedure and conduct of business in Lok
Sabha, Rule 263, (7 th ed. Lok Sabha Secretariat) (2010), available at http://164.100.47.132/
LssNew/direction/direction.aspx (Last visited on December 27, 2013).
66 See, for example, Second Semi-Annual Reports on activities during the 1 12th Congress of the
House Committees on Financial Services, on Agriculture, Armed Services, and Budget.
6 H.R. Rep. No. 112-355, at 271-73 (2011), available at http://www.gpo.gov/fdsys/pkg/CRPT-
112hrpt355/pdf/CRPT-112hrpt355.pdf (Last visited on December 27, 2013) (For example, in
the House Committee on Financial Services, the sub-committees published eighty out of a
total of eighty-six reports between January and December 2011).
68 See Rubinoff, supra note 35, 27.

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 403

bureaucrats comply with their policy preferences.69 Parliamentarians generally

lack the enabling framework to monitor bureaucratic performance. Effective
monitoring of regulations framed by bureaucrats is thus an essential part of an
effective oversight framework.

Parent statutes in India circumscribe powers that have been dele-

gated to the executive.0 They also state the manner in which Parliament will ex-
ercise a check on the rule-framing power of the government." Parliamentarians
may agree to modify the rule by voting on it before the end of the next session
(that is the session after the one in which the thirty days expire). This has rarely,
if ever happened. However, both Houses have a Committee on Subordinate
Legislation that examines regulations tabled in Parliament.

Data collated earlier indicates that the number of regulations

"examined by the Lok Sabha Committee from February 2008 to December
2010 is around three percent of the total number of subordinate legislation laid
before the Lok Sabha in the same period".72 The government often agrees to
modify the regulations after meeting with the Committees. For the 14 th Lok
Sabha (2004-09), the government accepted 83% of the recommendations made
by the Lok Sabha committee. However, there is also a huge time lag between
the initial report of the Committees and the response of the government. As a
result, by the time the Action Taken Report is published an average time of six
years has passed from the promulgation of the rule.73 Sadly, the Committee on
Subordinate Legislation of the Lok Sabha was itself forced to recently observe
that: "One disquietingfeatureobserved by the Committee in regardto the issue
ofstatutory orders by the Government was the enormous delay in laying them
on the table ofthe House thereby depriving the House oftimely scrutiny ofsuch
Rules. (emphasis added)". '

69 Mathew D McCubbins, Roger G Noll & Barry R Weingast, Administrative Procedures as

Instruments ofPolitical Control, 247, 3 JOURNAL OF LAW ECONOMICS AND ORGANIZATION 243,
243, (1987) (They state that politicians delegate policymaking authority to bureaucrats as a
matter of course. The problem is that politicians often lack the resources to monitor the per-
formance of bureaucrats in compliance with their own policy goals. They argue that result-
antly bureaucrats depart from the policy choices in the absence of effective oversight. This is
because of "personal preferences, derived from some combination of private political values,
personal career objectives, and, all else equal, an aversion to effort, especially effort that does
not serve personal interests").
o Bills are also required to contain a Memorandum on delegated legislation explaining the
clauses delegating rule-making powers, and certifying that such delegation is of a normal
character.
For example, see Civil Liability for Nuclear Damage Act, §§ 48(2) and 48(3). § 48(3) is illustra-
tive of a standard clause present in most laws, stating that any rules under a statute shall be laid
before the Parliament for a total period of thirty days of sittings of the Parliament.
2 AnirudhBurman, Subordinate Legislation inParliament, PRS Legislative Research (February
25, 2010) (unpublished).
73 Id.
COMMITTEE ON SUBORDINATE LEGISLATION, Fifteenth Lok Sabha, Non Implementation of Oft-
RepeatedRecommendations ofCommittee on SubordinateLegislation,Lok Sabha by Various

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404 NUJJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

This lack of effective monitoring is of critical importance espe-

cially because over time bureaucrats tend to gain greater experience over their
domain." The information asymmetry between the executive and the legisla-
ture only gets exacerbated over time.

IV. OVERVIEW OF OVERSIGHT MECHANISMS

IN OTHER COUNTRIES
This section provides a comparative study of oversight mecha-
nisms to take into account institutions common across various jurisdictions as
well as unique features that may be of interest for an Indian framework. Most
analysis seem to emphasize some common features.76

A. US CONGRESS

A report of the Congressional Research Service lists various goals

of Congressional oversight of the executive." I have already discussed many
of them in the earlier sections of the paper. Of the remaining, some significant
purposes are that of preventing "encroachment on legislative powers and pre-
rogatives", to assess whether the officials who have been delegated a particular
role are capable of carrying out such role, to review the rule making process of
government departments, and to investigate complaints and media critiques.

1. Constitutional provisions and statutes

No financial appropriation may be made without the authority of

law. Additionally, the Congress can establish or abolish executive agencies and
departments, and their functions. " The US Constitution also gives Congress
the power to confirm appointments to executive posts and impeach certain of-
ficers" serving in the executive. The Indian Constitution vests these powers

Ministries, Twenty-First Report , 2011, available at http://www.prsindia.org/administrator/

uploads/media/Subordinate%20Legislation/Report% 2 0 on%20Subordinate%20L egislation.
pdf (Last visited on December 27, 2013).
See McCubbins et al, supra note 69, 247.
See FREDERICK M. KAISER, WALTER J OLESZEK, TJ HALSTEAD, MORTON ROSENBERG & TODD B
TATELMAN, CONGRESSIONAL OVERSIGHT MANUAL, CONGRESS OF THE UNITED STATES: OVERSIGHT,
PROCESSES AND PROCEDURES1-133(Carol S. Plesser ed., 2007); Also see Dr. Ronald Holzhacker,
National Parliamentary Scrutiny in the EU: Comparing Rules, Institutions, and Party
Behavior, paper presented at the annual meeting of the American Political Science Association
(August 28, 2002), available at http://citation.allacademic.com/meta/p_mlaaparesearch-ci-
tation/0/6/5/7/5/pages65757/p65757-1.php (Last visited on December 27, 2013).
Frederick M. Kaiser, Walter J. Olsezek & Todd B. Tatelman, Congressional Oversight
Manual, 1-3 (2011), available at http://www.fas.org/sgp/crs/misc/RL30240.pdf (Last visited
on December 27, 2013).
7 Id.
79 The President of the United States, federal judges including those of the Supreme Court.

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 405

(except confirmation powers) with Parliament as well. 0 A number of laws grant

general and specific authority to Congress and congressional committees to
conduct oversight.8

Specific statutes also mandate the committees to exercise over-

sight functions over the executive.> The 1946 Legislative Reorganization Act is
cited as one of the landmark legislation designed to 'modernize' the Senate and
the House of Representatives.83 It mandates "continuous watchfulness" over
the executive. 4 Probably one of its biggest successes was to establish perma-
nent staff for congressional committees. 5 It also established the now named
Congressional Research Service 8 6 for assisting congressional committees. One
of the Act's foremost objectives was the reorganization of the committee struc-
ture." Davidson argues that though reorganization had very limited success,
the Act was important since it stated committee jurisdiction in writing for the
first time.

The 1970 Legislative Reorganization Act clarified oversight du-

ties of congressional committees, and also required them to submit biannual
reports on the oversight work undertaken by them. It strengthened the policy
analysis role of the Congressional Research Service and expanded the duties of
the Government Accountability Office. It also required that committees con-
duct a financial analysis of programs under their jurisdiction. 9

Lastly, the Government Performance and Results Act of 1993 re-

quires "agencies to consult with Congress on their strategic plans, goals and
results".9 o

8 Constitution of India, 1950, Arts. 61, 112-117, 124.

See KAISER et al, supra note 76, 5-6. (The 1912 Anti-Gag Legislation and whistleblower
protection laws give protection to those employed in the civil services who wish to petition
Congress or contact congressional committees. Special provisions are also mandated for the
intelligence community).
82 Id. The Act gave increased oversight powers to committees by allowing them to evaluate gov-
ernment programs eitherby themselves or to contract it out, or to require a government agency
to do so. See KAISER et al, supra note 76, 8.
83 Roger H. Davidson, The Legislative Reorganization Act of 1946, 15 LEGISLATIVE STUDIES
QUARTERLY 357, 357, (1990).
84 See KAISER et al, supra note 76, 7.
8 Id.
86 Renamed by the Legislative Reorganization Act of 1970. See KAISER et al, supra note 76.
1 See Davidson,supra note 83, 365.
" See id., 367.
89 See id., 7-8.
90 The Government Performance Results Act of 1993, §3.

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406 NUJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

2. Internal rules and mechanisms

Both the House of Representatives and the Senate have their own
rules on oversight to be conducted by committees and members. Members usu-
ally conduct investigations on their own initiative, sometimes in the form of
response to the grievances of constituents." Oversight is primarily the work of
congressional committees. 9 2 Most committees of the House of Representatives
have general oversight functions.9 3 They have to assist the House in its evalua-
tion and appraisal of the application of federal laws, and also the conditions that
may necessitate the enactment of new legislation, or in making changes to ex-
isting legislation. 4 Each committee has to review the laws and programs within
its jurisdiction on a continuing basis. It also has to review the "organization
and operation of Federal agencies" in-charge of executing laws and programs
within the committee's jurisdiction.95

The rules require that every committee with more than twenty
members shall have to establish a sub committee on oversight. 96 Alternatively,
each committee will require each of its sub committee to carry on oversight
within its respective jurisdiction. There is a specific mandate for each sub com-
mittee to review the impact or probable impact of tax policies on the subjects
within its jurisdiction on a continuing basis.9 All committees are required to
prepare a plan on oversight in the beginning of the year.98 The plan is then sub-
mitted to the Committee on Government Oversight and Reform as well as the
Committee on House Administration. The rules spell out in detail, considera-
tions the committee should have while making their plan.99

Each house committee can appoint up to thirty professional staff

members. Staff members are assigned to the chairperson and the ranking mi-
nority member in the committee.' The chairperson of the committee fixes the
pay for staff members.' There is also a standing committee on Oversight and
Government Reform that performs additional oversight duties.10 2 The Senate
also has its own procedure governing oversight. Specific oversight powers are
given to some committees such as those on nutrition and agriculture. Most

91 See KAISER et al, supra note 76, 13.

92 Id.
93 Rules of the House of Representatives, 1 12th Congress, (Prepared by Karen L. Haas), Rule X
Clause 2, January 5, 2011. See also KAISER et al, supra note 76, 13.
94 Rules of the House of Representatives, Rule X Clause 2(a)(1), 13.
95 Id., Rule X, Clause 2(b)(1).
96 Id., Rule X, Clause 2(b)(2).
97 Id.
98 Id., Rule X Clause 2(2)(d).
99 Id.
100 Infra note 142, Rule X, Clause 9.
101Id (The pay has to be uniform for all staff members).
102 See KAISER et al, supra note 76, 10.

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 407

committees are generally required to prepare an evaluation of the regulatory

impact of every bill or resolution on which it prepares a report.'03

The budgetary process allows Congress to assess budgetary policy

as a whole. Congress can also assess whether the proposed revenue generation
and spending decisions are in line with the budgetary policy. The authoriza-
tion process and the appropriations process are two other important oversight
related processes. The authorization process is a financial power that allows but
does not guarantee federal agencies to make appropriations. The appropriations
process actually sanctions money for a particular agency.0 4

Both members and congressional committees conduct investiga-

tive oversight. While there is no explicit constitutional provision granting this
power, it has been read in to the powers of Congress. Supreme Court deci-
sions have also held this power to be inherent in the legislative process.o' The
Court has however stated that the investigative power can only be used in aid of
Congress's legislative function and not for the sake of exposure alone.

3. Power of Contempt

Congress codified this inherent power in 1857, enabling itself to

punish for criminal contempt. Any person failing to produce documents before
either the chamber or a committee when asked to do so, or any person refus-
ing to answer questions, is punishable by fine and imprisonment for up to one
year.'06 Since 1975, twelve cabinet-level or senior executive officials have been
held for contempt.

Congress also has the power of civil contempt. A complaint can

be lodged in a federal district court against any person who refuses to respond
to a subpoena. If the individual still does not comply, a trial is initiated. This
remedy is available against government officials only, if the basis of the refusal
0
is not an official reason or an official authorization.o

103 Rules of the Senate, Rule 26(11), available at http://rules.senate.gov/public/index.

cfm?p=RuleXXV (Last visited on December 27, 2013).
10 See KAISER et al, supra note 76, 16-22.
10o Id. See also Eastland v. United States Servicemen's Fund, 421 US 491 (1975); Watkins v.
United States, 354 US 178 (1957).
106 See KAISER et al, supra note 76, 33-34.
10o 2 USC § 192, available at http://www.law.cornell.edu/uscode/text/2/192 (Last visited on
October 8, 2013); See House Practice:A Guide to the Rules, Precedents and Procedures
of the House, 444-445, available at http://www.gpo.gov/fdsys/pkg/GPO-HPRACTICE-108/
html/GPO-HPRACTICE-108-18.htm (Last visited on October 8, 2013) ("In the 97th Congress
the House adopted such a resolution following the failure of an official of the executive branch
(EPA Administrator Anne M. Gorsuch) to submit executive branch documents to a House
subcommittee pursuant to a subpoena. This was the first occasion on which the House cited
a cabinet-level executive branch official for contempt of Congress ... In the same Congress,

July - September, 2013

408 NUJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

B. UK PARLIAMENT

The Indian parliamentary system is based heavily on the

Westminster model. Many institutional functions are therefore similar. In view
of this similarity, it may be useful to understand the theoretical underpinnings
of the parliamentary system under the Westminster model. As in India, it is
the government in the UK that controls Parliament.' Members of Parliament
are elected on party platforms, and it is in their self-interest to vote with their
party.o' Therefore, if a government has a real majority, it is reasonably sure
of securing the passage of its agenda in Parliament. In Sir Jenning's estima-
tion Parliament thus serves the purpose of reflecting the sentiment of the peo-
ple at a given point of time. This, according to him is the main function of
Parliament: to hold the government accountable to the electorate. In his highly
regarded work however, Sir Jennings does not look beyond this formal measure
of accountability.

Historically, Parliament's resistance to reform has also exacer-

bated concentration of power in favor of the British executive."0 This has argu-
ably been due to strong commitment to ministerial responsibility: "Parliament
severely underestimated the subsequent effect that the evolving state and mass
parties would have on the convention and so it became the political rationale
and procedural logic around which an expanding system of government was
structured"."'

The UK Parliament has three distinct types of committees: gen-

eral committees, select committees, and joint committees. In addition, Grand
Committees allow parliamentarians to debate issues affecting their region
or constituency.11 2 Select committees in the House of Commons perform the
administrative oversight of government departments. All committees exam-
ine issues related to the spending, policies and administration of departments
under their jurisdiction.113 General committees are usually formed to discuss
legislation."4

Secretary of the Interior James G. Watt was cited for contempt for withholding from a com-
mittee subpoenaed documents and for failure to answer its questions").
o SIR IVOR JENNINGS, CABINET GOVERNMENT 473 (1969).
109 Id., 474.
110 Matthew Flinders, Shifting the Balance? Parliament, the Executive and the British
Constitution, 50 POLITICAL STUDIES 23 (2002).
1 Id., 25.
112 Grand Committees, How Parliament Works, available at http://www.parliament.uk/about/
how/committees/grandcommittees/ (Last visited on December 27, 2013).
113 Select Committees, How ParliamentWorks, available at http://www.parliament.uk/about/how/
committees/select/ (Last visited on December 27, 2013); also see House of Commons, Select
Committees: Brief Guide, House of Commons Information Office (2011): There are currently
19 select committees. The number may change if the departmental organization changes.
114 General Committees (including Public Bill Committees), How Parliament Works, available
at http://www.parliament.uk/about/how/committees/general/ (Last visited on December 27,

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 409

In India as in the UK, committees were therefore conceptualized

as an avenue where investigations about policy alternatives could be carried
out for debate in either House. This would enable Parliament to put forward
alternatives to government policies and inform public opinion while testing the
government as well."

The main difference between the US Congress and UK Parliament

(and the Indian Parliament) is in the use of the committee system as a tool of
oversight." 6 Due to various institutional and structural constraints, committees
cannot "challenge the authority of the parliamentary executives"."' Garrison
Nelson cites scholarship stating that the contrast between committee strength
is related to the contrast between the strength of political parties."' In UK po-
litical parties are strong and the committee system is weak. In the US, the
inverse is true. He challenges this notion on empirical grounds and states that
the analysis is limited by a study of only two legislatures." 9 His argument based
on empirical studies of legislatures cited by him shows the viability of a strong
role for committees in countries with strong party systems.'20

Other criticisms regarding the functioning of the UK Parliament

have also been made more recently. A commission set up by the Hansard
Society published its report in 2001.121 It stated that parliamentary scrutiny
over the government is "neither systematic or rigorous".122 It further observed
that Parliament has generally been unable to hold the executive accountable,
and to ensure executive compliance with recommendations it makes, on ac-
count of expansion in the range of governmental activities undertaken by mod-
ern government.123 To mitigate this problem, the report suggests providing the
parliamentary workforce with the needed reinforcement through the twofold
methods of- reforming select committees through greater systemization,124 and
increasing the work required of parliamentarians so as to lead to a demand of
better staffing resources.

2013).
Id.
116 Garrison Nelson, Assessing the Congressional Committee System: Contributionsfrom a
Comparative Perspective, 411 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL
SCIENCE 120, 123 (1974).
1 Id.
118 Id.
119 He also cites the work of other scholars to provide examples for his argument. Italy and Japan
are cited as examples of countries possessing both strong leaders and strong committees
within their legislatures. Nelson, supra note 116, 127.
120 Id., 129.
121 Greg Power, Making Government Accountable - The Report of the Hansard Society
Commission on ParliamentaryScrutiny, 7 THE JOURNAL OF LEGISLATIVE STUDIES 1 (2001).
122 Id., 1.
123 Power, supra note 121, 2.
124 See Id., 5-6 (One important recommendation in this regard was to give committees a set of
core duties).

July - September, 2013

410 NUJJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

Non-committee mechanisms of oversight include the ques-

tion time, debates, and early day motions.125 The Prime Minister as well as
other ministers answer oral questions about once every sitting month. The
UK Parliament also has a Comptroller and Auditor General which aids the
Parliament's Public Accounts Committee in ex-post facto financial oversight
of government. 126

C. SOUTH AFRICA

South Africa's constitutional framework is interesting from a

comparative perspective as an example of a parliamentary democracy constitu-
tionally mandating the legislature to perform oversight of the executive. South
Africa is a parliamentary democracy where the President is both the head of
the executive and the head of the state. However, he is elected from the lower
house and appoints the cabinet.12 South Africa also has a bicameral Parliament.

Article 55 of the South African Constitution explicitly provides

that the National Assembly (lower house) should ensure that all departments
of the executive are accountable to it, and that it should maintain oversight
of both departments of the executive, and any exercise of power by it.128 The
Constitution also specifies the powers of the National Assembly and its com-
mittees to summon witnesses, conduct hearings and take evidence.129 It also al-
lows cabinet ministers and officials to attend a meeting of the National Council
of Provinces (upper house).130

Apart from these, the legal framework of the country also pro-
vides for Parliament's role in appointing senior government officials, represen-
tation of parliamentarians on government commissions, and the appointment of
a Public Protector (ombudsman) who is appointed by the President on the rec-
ommendation of the National Assembly. The committee system also functions
in a manner similar to India and the U.K., and specific portfolio committees
oversee the implementation of existing laws.131

12 HILAIRE BARNETT, CONSTITUTIONAL AND ADMINISTRATIVE LAW 385-91 ( 7 th ed., 2009).

126 Inter-Parliamentary Union, ParliamentaryOversight: United Kingdom House of Commons,
available at http://www.ipu.org/parline-e/reports/CtrlParlementaire/2335_F.htm (Last visited
on December 27, 2013).
12 Central Intelligence Agency, South Africa, The World Factbook, available at https://www.
cia.gov/library/publications/the-world-factbook/geos/sf.html (Last visited on December 27,
2013).
1 Parliament of the Constitution of the Republic of South Africa, 1996, Ch. 4, available at http://
www.info.gov.za/documents/constitution/1996/96cons4.htm (Last visited on December 27,
2013).
129 Constitution of South Africa, Art. 56.
130 Constitution of South Africa, Art. 66.
131 Inter-Parliamentary Union, ParliamentaryOversight: South Africa NationalAssembly, avail-
able at http://www.ipu.org/parline-e/reports/CtrlParlementaire/2291_F.htm (Last visited on
December 27, 2013).

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 411

In March 2008, a Task Team on Oversight and Accountability

comprising members of both houses of Parliament submitted its final report.13 2
It stated that contrary to the conventional adversarial definition of oversight un-
der the Westminster model, the South African understanding would be a more
institutional one. It understood oversight to mean, "the informal and formal,
watchful, strategic and structured scrutiny exercised by legislatures in respect
of the implementation of laws, the application of the budget, and the strict ob-
servance of statutes and the Constitution".133

The main oversight mechanisms within the Parliament include

committees, questions, budget votes, and general motions. However, the re-
port also lists out departmental reports, strategic plans, department's record of
compliance with these plans and applicable legislation, committee reports on
oversight and legislation as important tools of oversight.134

One of the important recommendations the report makes is re-

garding the manner of reporting by committees to the houses of Parliament.
Currently, the Speaker refers annual reports from all departments to the rel-
evant committee. Public hearings should also be conducted to gain inputs re-
garding the areas covered in the annual reports. The report recommends that
when a response on an annual report is required from a minister, the same
should be given on the floor of the House and addressed to the Speaker.135

The three countries studied above differ vastly in the nature of

their constitutions, and the nature of their national legislative institutions.
However, all of them seem to depend in varying degrees on the strength of
the committee system, and the ability of individual legislators to question the
government on the floor of the house. The next part of this paper examines
components of an oversight framework for India's parliamentary system.

This portion proposes a specific and in-depth reworking of the

oversight framework within the Indian Parliament. It is thus necessary to estab-
lish what specific objectives of such an effort should be.

132 Parliament Monitoring Group, Oversight and Accountability Model: Assisting Parliament's
Oversight Role in Enhancing Democracy, Parliament of South Africa, available at http://
www.pmg.org.za/report/20080319-final-report-task-team-oversight-and-accountability (Last
visited on December 27, 2013).
133 Id.
134See id., Chapter 3.
135See id., Chapter 4.

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412 NUJJS LAW REVIEW 6 NUJS L. REv. 3 (2013)

V. APPROACH TO STRUCTURING OVERSIGHT

MECHANISMS
Scholars have defined oversight mechanisms in varying forms.
Rockman categorizes these definitions on the basis of "how many legislative
activities it is seen to encompass; it also depends on the types of controls and
supervision placed on the executive, the instruments employed, and the stages
of legislative intervention".136

At its broadest possible level, any parliamentary activity could be

oversight related.13 In this paper, the emphasis is to look at oversight mecha-
nisms over and above those available to members on the floor of either House.
However, most oversight mechanisms have linkages with one another. A strong
committee system with effective monitoring of the bureaucracy may change
the tenor of the question hour as it exists. These linkages need to be taken ac-
count of.

McCubbins and Schwartz highlight two contrasting approaches

of police patrols and fire alarms.138 The former refers to the method of leg-
islators continuously monitoring the performance of executive departments.
They argue that very little of such monitoring actually happens in practice.
Therefore, a system of fire alarms is much more effective. Legislatures can
design a system that encourages the electorate to sound a fire alarm every time
the executive acts improperly. This implies a much smaller cost of monitor-
ing since the electorate will be conducting most of the oversight. Moreover,
bureaucrats, deterred by the sounding of such fire alarms, will stay faithful to
legislative intent.

While fire alarms lower costs of monitoring, the political and pe-
nal consequences of sounding off fire alarms in India remain mixed, at best. It
may thus be better to invest in a 'police patrol' formulation of ex-ante oversight
that allows continuous monitoring of the executive. This would hopefully obvi-
ate the need for sounding off fire alarms. The other issue to be considered is
the balance between strong oversight mechanisms and ensuring adequate ex-
ecutive insulation. The ability of the executive to implement policy objectives
is important for representative democracy to succeed. Oversight mechanisms
should not become politically expedient tools to defeat this process.

This issue is central to the design of an oversight framework

for India. The success of oversight mechanisms also depends on what struc-
tural context political institutions are located in. The first step is to drastically
136 See Rockman, supra note 8, 416-17. Also see Stapenhurst & Pelizzo, supra note 9, 3.
137 Id., Rockman, 417.
138 Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police
Patrolsversus Fire Alarms, 28 AM. J. POL. Sc. 165 (1984).

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 413

increase legislative input into the creation of legislation and policy-making.

While it would not be politically or structurally feasible to make incorporation
of such inputs mandatory, structural mechanisms can ensure that the executive
is forced to give greater consideration to inputs from Parliament. This would
enable Parliament to fulfill one of its least contentious roles i.e. creating legisla-
tion and policy by providing for ex-ante scrutiny. The second step is to ensure
compliance with relevant laws. This function is a derivative of the first, since
passing laws gives the power to ensure compliance with the same.

As a third step, the legal framework for improving oversight

should begin with a definition of oversight balancing the issues raised above.
The House Rules of the US House of Congress clearly define the oversight
functions of Congressional committees. These are to assist the House in the ap-
plication of federal laws, to examine conditions that may necessitate the draft-
ing of new legislation, and to analyze required changes in federal laws.139

A framework for improving parliamentary oversight in India

should therefore look at the following issues:

A. Defining oversight

B. Review of the functioning of the committee system.

C. Oversight mechanisms in both Houses.

D. Manner of oversight over subordinate legislation.

E. Incentive structures for Members of Parliament to conduct oversight.

A. DEFINING OVERSIGHT

Though there is no fixed definition of 'oversight' at its broadest, it

means the following: "Legislative oversight is behavior by legislators and their
staffs, individually or collectively, which results in an impact, intended or not,
on bureaucratic behavior".140

It is important to note that this definition of oversight is value neu-

tral with regard to the type of impact on bureaucratic behaviour. Good oversight
may result in increased efficiency and responsiveness within the bureaucracy,
and at the same time, bad oversight may cripple the ability of the executive to

139 House Rules of the House of Representatives, Rule X(2)(a) and (b).
140 MORRIS S. OGUL, CONGRESS OVERSEES THE BUREAUCRACY: STUDIES IN LEGISLATIVE SUPERVISION 11
(1976) as quoted in Congressional Research Service, CongressionalOversight: An Overview,
February 22, 2010, available at http://www.fas.org/sgp/crs/misc/R41079.pdf (Last visited on
October 25, 2013).

July - September, 2013

414 NUJJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

perform its functions. The framework given below tries to ensure that institu-
tional incentives are structured in a manner so as to promote good oversight,
without in any way limiting the subject-matter jurisdiction of the Parliament.

1. The committee system

The departmentally related parliamentary standing committees

should play a central role in the oversight function of Parliament. In India, com-
mittees function in a largely bipartisan manner, but numerous issues related
to their functioning have been highlighted in Part I. These issues need to be
addressed by understanding how to modify structural elements to increase the
capacity for conducting oversight:

a. Committee structure

The capacity for oversight is obviously a primary issue while try-

ing to reorganize the institutional framework for oversight. It is questionable
whether committees at present are adequate in number to exercise oversight
over the large number of government departments. However, it is equally im-
portant to consider the fact that most Members of Parliament are members of
at least one parliamentary committee. It therefore makes more sense to retain
the existing number of committees and improve capacity for oversight around
them.

b. Sub-committees

Sub-committees in the US Congress perform a major portion of

the total work conducted by Congressional committees.'' Of particular interest
is the existence of oversight sub-committees within most Congressional com-
mittees.142 Though standing committees in India also have the power to cre-
ate ad-hoc subcommittees,1 43 there are no existing permanent sub-committees.
The present system creates significant pressure on committee members. Every
meeting of the committee on a particular issue requires the presence of every
member, which arguably impedes both their ability to specialize, and also
their constituency work. The creation of sub-committees would also promote
closer interaction of a smaller group of committee members with members
of the executive, which could arguably lead to greater deliberation on issues.
Importantly, sub-committees would be able to develop a better institutional

141 See for example the report of the Committee on Agriculture of the US House of Representatives
titled "Second Semiannual report on activities during the 112th Congress". The sub-commit-
tees held thirty out of forty-seven hearings during the period covered in the report. Also see
similar reports of the committees on Armed Services and Financial Services.
142 House Rules of the House of Representatives, Rule X (5).
143 Rules of procedure and the conduct of business in the Lok Sabha, Rule 263, available at
http://164.100.47.132/LssNew/rules/rules.aspx (Last visited on December 27, 2013).

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 415

memory of government departments that the committee sitting as a whole may

be able to. Importantly, committees may be able to divide functional responsi-
bilities between the standing committee and its sub-committees. The sub-com-
mittees would be able to conduct more focused scrutiny over their respective
subject areas.

In the US, the Legislative Reorganization Act of 1970 and con-

sequent developments significantly altered the interrelationship between the
standing committee's chairperson and the sub committees. One significant de-
velopment was the mandatory referral of all bills to the relevant sub commit-
tees. 44 While it is appropriate that sub committees with jurisdiction over the
relevant department study legislation referred to the standing committee, a leg-
islative framework should not curb the flexibility available to the chairperson
of the committee. There may be situations where more than one sub committee
may be required to study the bill, or where detailed analysis by a sub committee
is not possible. Supplementary demands for finances are one such example. In
such cases, the chairperson should have the flexibility to find the most efficient
allocation of committee resources. The framework on oversight proposed here
is not intended to upend the role of the committee chairperson and make sub
committees the main drivers of oversight.

A legislative framework should also mandatorily provide for the

creation of sub-committees covering every department of the government un-
der the committee's jurisdiction. Committees should be free to decide the num-
ber of sub-committees to create, and the distribution of departments within
different sub-committees. The emphasis is on the provision for scrutiny of all
government departments by sub-committees. Giving discretion to the commit-
tees on this issue helps them retain the flexibility to re-organize sub-commit-
tees with corresponding changes to government departments. Broadly, changes
in the executive should be paralleled by changes in sub-committee organization
and jurisdiction.

Based on the structure of Congressional committees, one may

argue for having one sub-committee dedicated to oversight in all committees.
However, such a structure may be superfluous in the Indian context for multiple
reasons. Primarily, committees in India do not frame legislation. The commit-
tee as a whole, and any proposed sub-committees would be engaged in scruti-
nizing the administration anyway. A separate oversight sub-committee would
in most likelihood lead to jurisdictional overlaps. If at all, there is a case for
creating a separate sub-committee on financial oversight in all committees.
Beyond facilitating oversight of departmental finances, it would free for other
sub-committees to focus on a greater range of issues.

144 Baughman, John, The Role ofSubcommittees after the Republican Revolution, 34 AMERICAN
POLITICS RESEARCH 243, 247 (2006).

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416 NUJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

Another reason for having a financial oversight sub-committee is

the diversity of methods by which the government spends its annual budget-
ary allocations. The central government distributes money collected through
revenues to the states through a variety of mechanisms.'4 It also undertakes a
number of infrastructural or welfare related projects directly.146 A sub-commit-
tee on financial oversight would enable greater parliamentary understanding of
these allocations, and also their scrutiny.

It is important to note that sub-committees would not be able to

adopt reports or motions on their own. The adoption of any report, finding or
recommendation of a sub-committee would have to be voted on by the entire
standing committee. This is essential since the sub-committee is essentially
designed to perform a delegated function as an agent of the whole committee.
While it may have functional autonomy, it should not be vested with powers
that are to be exercised by the whole committee. The three financial commit-
tees in Parliament have specific oversight duties that are not specific to particu-
lar ministries. The general changes being proposed in the following portions
that are applicable to standing committees should also be applicable to them.

Some scholarship in the US has expressed concern over the sub-

committee system. The chief concern is whether, "...subsets of members, nom-
inally equal in decision-making authority, will dominate the outcomes of their
parent body".'14 This concern is pertinent in the US because of the passage of
structural changes since the 1970s that empowered subcommittee chairpersons
and ranking minority members at the cost of the standing committee chair-
person. However, the same framework is not being considered for the Indian
Parliament. As will be noted, committee chairs will continue to exercise signif-
icant powers over subcommittees that have devolved to subcommittees within
the US system.'48

14 See the reports of the Finance Commission of India. The Thirteenth Finance Commission
report mentions various methods of distribution of revenues. These include direct apportion-
ment of revenue collected based on a variety of factors, grants-in-aid to states in need of as-
sistance, as well as direct financial allocation to local bodies, available at http://fincomindia.
nic.in/ShowContentOne.aspx?id=28&Section=1 (Last visited on December 27, 2013).
146 Generically termed "Centrally Sponsored Schemes", the expenditure on these may be made
entirely by the central government or in conjunction with state governments. Examples in-
clude the National Rural Health Mission and the Pradhan Mantri Gram Vikas Yojana, avail-
able at http://mohfw.nic.in/NRHM/Documents/MissionDocument.pdf (Last visited on
December 27, 2013).
14 Richard L. Hall & C. Lawrence Evans, The Power of Subcommittees, 52 THE JOURNAL OF
POLITICS 335, 336 (1990).
148 These include the power to choose the number and composition of subcommittees. See id.,
336, 350 (With regard to the generalisations about "government by subcommittee", Hall and
Evans note that the influence of subcommittees on the eventual decision varies from case to
case and committee to committee).

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 417

c. Subject-specific sub-committee on regulation

Parliamentary scrutiny of subordinate legislation is essential

for many reasons. One of the most well-known explanations provided by
4
McCubbins, Noll and Weingast"' is the moral hazard problem i.e. administra-
tive agencies can often subvert legislative intent by choosing a policy option
different from the ones behind the parent legislation. Since politicians devolve
considerable policymaking power to bureaucrats, ensuring that legislative in-
tent is met requires serious consideration. This is especially so since politicians
have limited resources to monitor bureaucrats.' Moreover, as Kathleen Bawn
argues, analyses of Congressional control over the bureaucracy have also un-
derestimated the control exerted through statutory control.'"' Additionally, fire
alarm systems may be created in legislation itself,'52 allowing parliamentary
committees to focus on police patrolling in the routine course of business.

As has been noted earlier, Parliament is unable to pay sufficient

attention to subordinate legislation and independent regulators. The resolution
of this issue requires such oversight to be located within the committee system
because focused, deliberative discussion on either subject is not feasible on the
floor of the Houses. Additionally, the Parliament meets for very short periods of
time during the year, thereby further constraining the list of subjects that may
be discussed.'53

As aforementioned, the US Congress has enacted laws governing

the process of rule framing by administrative agencies.' 4 These govern the
manner of Congressional oversight over subordinate legislation. The federal
agency promulgating a regulation must submit it to each house of Congress,

149 McCubbins, Noll & Weingast, Structure and Process, Politics and Policy: Administrative
Arrangements and the Political Control ofAgencies, 75 VIRGINIA LAW REVIEW 431, (1989);
McCubbins, Noll & Weingast, Administrative ProceduresasInstruments ofPoliticalControl,
3 JOURNAL OF LAW, ECONOMICS AND ORGANIZATION 243 (1987).
150 Id.
Kathleen Bawn, Choosing Strategies to Control the Bureaucracy: Statutory Constraints,
Oversight, and the Committee System, 13 JOURNAL OF LAW, ECONOMICS AND ORGANIZATION 101,
102 (1997).
152 Id., 104.
153 Rohit Kumar, Vital Stats: Parliament in India: 2009, December, 2009, available at http://
www.prsindia.org/administrator/uploads/general/1262663823~~parliament% 20in%/p202009.
pdf (Last visited on December 27, 2013); See also Rohit Kumar, Vital Stats: Parliament
in Budget Session 2011, available at http://www.prsindia.org/administrator/uploads/gen-
eral/1301056573 Vital%20Stats%20-%20Parliament%20ino20Budget%20Session%20
2011%20-%20to%20send%20out.pdf (Last visited on December 27, 2013 )(Stating that the
budget session "recorded the lowest number of sittings in a non-election year in the past two
decades").
154 Congressional Review Act 5 U.S.C. §§ 801-808, S. 801 (Supp. III 1994); See generally JackM.
Beerman, CongressionalAdministration, 43 SAN DIEGo L. REV. 61, 103-106 (2006).

July - September, 2013

418 NUJJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

along with a cost-benefit analysis of the regulation. Additionally, the regula-

tions are enforced after they are placed before Congress.'

In India, all subordinate legislation is laid in Parliament and is

enforced on the date they are notified by the executive. Any modifications made
based on the recommendations of the Committees on Subordinate Legislation
apply prospectively. Additionally, the Committees on Subordinate Legislation
examine only a select few of the total number of subordinate legislation tabled
in Parliament. 5 6 It is important to note that in the US Congress, all subordinate
legislation is automatically referred to the standing committee with jurisdic-
tion on the subject.' It would be more feasible to abolish the Committees on
Subordinate Legislation and mandate the creation of sub-committees on regu-
latory matters in every committee. Subject specific parliamentary committees
do undertake oversight of regulations in other countries as well. There are three
major advantages of such reorganization.

First, institutional memory would facilitate scrutiny. The stand-

ing committee examining the subordinate legislation also examined the parent
law. This would provide a degree of expertise on the subject matter that an
independent committee on subordinate legislation does not possess. Second,
the development of institutional expertise over time would lead to greater effi-
ciencies in scrutiny of subordinate legislation. Sub-committee members would
gain greater specialized experience in scrutinizing sector-specific regulations.
Lastly, a much greater number of committees would be examining subordi-
nate legislation, leading to a quantitative increase in scrutiny of subordinate
legislation.

Giving a sub-committee the power to oversee independent regu-

lators may be trickier. For one, it is debatable whether the legislature should
have a say in the functioning of regulators. A government elected by a majority
should ideally set policy objectives of a regulator in a parliamentary democ-
racy. However, legislatures also have the right to ensure compliance with the
law enacted. Conflict may arise in cases where the parent law does not men-
tion any clear regulatory objectives, and the government's policy objectives
differ from the opinion of a parliamentary sub-committee. Under the present
statutory framework, this conflict would arise in almost every case the sub-
committee does not agree with governmental policies.

At the same time, the oversight objective of ensuring that reg-

ulators comply with the law is equally important. Therefore, powers vested
in the sub-committee for overseeing regulators need to be clearly defined.
Functionally, the legislature should be empowered to oversee whether the
15Id.

156 See Burman supra note 72.

1 Congressional Review Act, § 801.

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 419

regulatory body complies with laws enacted by Parliament. From a separation

of powers perspective, it should not be able to second-guess policy-making un-
less the implementation of such policy is clearly in violation of an existing law.
This delineation should be clearly defined in the proposed legislation.

Vesting the sub-committee with specific oversight powers with

limited jurisdiction to subjects covered by the enacting statute is one feasible
solution. Under most existing laws this would cover issues such as the composi-
tion of the regulatory body, the qualifications of regulators, framing of subor-
dinate legislation establishing the regulatory body (but not regulations framed
by the regulator), and the regulator's compliance with statutory provisions and
applicable laws."'

Important limitations must apply even to these provisions. First,

the appointment and qualifications of regulators should not be challenged af-
ter the lapse of a given period of time since their appointment. Allowing an
indefinite period for such a challenge could potentially cripple regulatory inde-
pendence. Second, most enacting statutes confer powers on the government de-
partment responsible for establishing the regulator by listing subjects on which
subordinate legislation may be framed.' 9 While these should be within the sub-
committee's jurisdiction, jurisdiction over regulations framed by the regulators
should be limited only to examining illegality. Sub-committees should be ex-
pressly prohibited from examining any other ground.

Finally, financial oversight of the administrative expenses of a

regulator should be limited to allegations of financial impropriety, except in
the course of annual examination of the Union Budget. Even then, any allega-
tions of financial impropriety by regulators should be scrutinized only after two
thirds of the entire standing committee has agreed that there is a primafacie
case for such scrutiny. The sub-committee may then conduct the scrutiny only
on the grounds that the entire committee has approved.

The inter-relationship between an independent regulator and the

relevant ministry or department deserves consideration. While most enacting
statutes empower the concerned ministry to establish the regulator, they do not
comprehensively detail the functional relationship between a regulator and the
ministry.'60 They do not for example provide guidelines on when ministerial
or departmental decisions can overturn decisions made by a regulator. In the
alternative they vest an absolute right with the central government to supersede
the regulator.

For example, refer to the Competition Act, 2002, §§ 7, 8, 53D, 53E and 63.
159 Id., § 63; Telecom Regulatory Authority of India Act, 1997, § 35.
160 [d.

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420 NUJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

Parliament undoubtedly has the power to frame legislation to

clearly spell out the relationship between the executive and the regulator in
detail. It is however debatable whether parliamentary committees should enjoy
the power to scrutinize individual instances where issues regarding the rela-
tionship between independent regulators and the executive arise. Such power
would not be exercised in pursuance of any legal provision. However, nothing
prevents a sub-committee from proposing general standards that may be vol-
untarily accepted by regulators and government departments, or from recom-
mending the need to legislate on such standards.

d. Term-limits on committee membership

Most standing committees have twenty-one members from the

Lok Sabha and ten members from the Rajya Sabha.161 All standing commit-
tees as well as some others 62 are presently re-constituted every year.163 The
agenda of many committees is often not finished before the expiry of their
term. Institutionally, an annual turnover also restricts sector specific expertise
developing within committees.

It would be better to make the term of a committee co-existent

with the term of the executive. That is, all committees would ordinarily be
constituted only after a general election. In the case of the Rajya Sabha, this
rule would have to be modified since one-third of the members retire every two
years. This can be achieved by providing that only new members of the Rajya
Sabha shall be accommodated within committees with existing vacancies.
Existing procedures of Parliament provide that no member shall be appointed
to a committee if he/ she does not want to be a part of it.164 In such a case ap-
pointments should be made only if there are vacancies.

This proposal would ensure that a committee is ordinarily recon-

stituted every five years. Within this framework, the sub-committees should
have tenures of two years each. This structure is envisioned to balance the
need for expertise within sub-committees, as well as creating a knowledge
base of different sectors within the standing committee. This would ensure that
members have adequate time to understand their specific sub-committee work.
Additionally, it would ensure that a wide pool of members within the standing
committee have knowledge of a particular sector. The purpose of this design

161 Parliamentary Committees, ParliamentaryProcedure Abstract Series, 2009, available at

http://164.100.47.132/LssNew/abstract/index.aspx (Last visited on December 27, 2013).
162 Public Accounts Committee, available at http://164.100.47.134/committee/committee infor-
mations.aspx (Last visited on December 27, 2013).
163 See Abstract No. 15 titled "Parliamentary Committees", supra note 161.
164 Rules of procedure and conduct of business in the Lok Sabha, Rule 254, available at
http://164.100.47.132/LssNew/rules/rules.aspx (Last visited on December 27, 2013).

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 421

is to promote technocratic discussion both within the sub-committees and the

standing committees.

Similarly, chairpersons of sub-committees should have a tenure

co-existent with the tenure of the sub-committee. However, it is desirable that
the chairperson of the standing committee changes at least once during its ten-
ure. This would aid the infusion of new ideas in the running of the committee,
and also aid political parties in rewarding greater number of their members.

e. Generaloversightpowers

The nature of oversight which parliamentary committees perform

is central to a discussion on oversight powers. Broadly, committee oversight ac-
tivities can include continuous ongoing scrutiny of executive functions, or spe-
cific ad hoc investigations. The US Congress performs both these functions.'65
A discussion of oversight powers must therefore first debate the efficacy of the
pre-existing oversight powers of parliamentary committees, and then exam-
ine whether and in what form investigative oversight as understood in the US
should be incorporated within the Indian framework.

Standing committees presently enjoy limited powers to call for

documents and witnesses. For example, the government may deny them access
to documents covered under the Official Secrets Act.'66 As regards witnesses,
committees can ask any person to testify before them. 6 However, committees
themselves enjoy no contempt powers to ensure such testimony. Such power
has to be exercised by reference to the Speaker/ Chairman of the House.

Significantly perhaps, the onus is on the committee to request ac-

cess to documents and other relevant evidence. This often impedes effective
scrutiny since members do not have adequate information on what documents
to request access to. One of the first changes required is therefore to mandate
that the government undertakes maximum disclosure on its own, rather than
wait for the committee to request for additional information.

The scope of such 'maximum disclosure' is obviously conten-

tious. There are parallels to the debate concerning disclosure required under
the Right to Information Act.'68 Government officials are wary of disclosing
certain kinds of information such as notes made on files, claiming they can

16 See generally ROSENBERG, supra note 28.

166 The statute is available at http://orissasoochanacommission.nic.in/Official%/ 20Secret%/20
Act 1923.PDF (Last visited on December 27, 2013); see also The Rules of Procedure and
Conduct of Business in the Lok Sabha, Rule 270.
16 See Rules of Procedure, Lok Sabha, Rule 202.
168 The Act enables citizens to claim access to any piece of information that is not otherwise clas-
sified as secret under other applicable laws.

July - September, 2013

422 NUJS LAW REVIEW 6 NUJS L. REv. 3 (2013)

be misused to harass officials, therefore impeding discretionary decision-mak-

ing.169 Thus, officials would be much more comfortable providing informa-
tion only as demanded. However, if the government is compelled to provide
maximum disclosure defined in broad and general terms without the risk of a
disproportionate penalty, then there should not be serious impediment to gov-
ernmental decision-making.

The argument in favor of making such disclosure from a separa-

tion of powers perspective is evident in the literature on the subject in the US.'
The reasons for doing so may be attributed to the constitutional delineation of
executive and legislative powers."' The US Congress is presupposed to have
a right to access all information necessary to carry out its functions properly.
Certainly, the same argument is also applicable to the Indian Parliament.

One important tool for ensuring access to information from the

executive is the subpoena power. The US Congress vests committees with the
power to issue subpoenas.12 The subpoena power is an important tool of inves-
tigative oversight.'13 US courts have generally construed the subpoena power
of Congress broadly.' 1 The limitations on such power are that the subpoena
should be necessary for Congress to carry out its lawful functions, the com-
mittee issuing the subpoena is authorized to conduct the investigation, and the
materials sought by the subpoena are essential for carrying out the enquiry."'
The importance of subpoenas as an instrument for ensuring access to evidence
from the executive may vary depending on whether evidence is required for
specific investigations, or for a routine exercise of oversight powers. Therefore,
at this juncture it is important to discuss the viability of investigative oversight
in the Indian context.

The Indian Parliament does conduct investigative oversight by es-

tablishing Joint Parliamentary Committees on specific issues.176 These commit-
tees are conferred subject matter jurisdiction and investigative powers through
resolutions passed on the floors of both Houses. Such powers are however,

169 No Right to Know File Notings, INDIAN EXPRESS July 21, 2006, available at http://www.indian-
express.com/news/no-right-to-know-file-notings/8943/0 (Last visited on December 27, 2013).
Vicki Divoli, The "FullAccess Doctrine": Congress' ConstitutionalEntitlement to National
Security Informationfrom the Executive, 34 HARV. J.L. & PUB. POL'Y 493, 498 (2011).
11 US Const., Art. I & II.
172 Rule XXVI(I) of the Senate Rules and Rule XI(2)(m)(I) of the House Rules, as mentioned in
ROSENBERG, supra note 28, 8.
173 Id.
17 Christopher F. Corr, & Gregory J. Spak, The Congressional Subpoena: Power, Limitations
and Witness Protection,6 BYU J. PUB. L. 37, 41 (1992).
"7 Bernard Bergmanv. Special Committee on Aging, 389 F Supp 1127 (1975).
176 JointParliamentaryCommittees and What they haveAchieved, BUSINESS STANDARD November
17, 2010, available at http://www.business-standard.com/india/news/joint-parliamentary-
committeeswhat-they-achieved/415198/ (Last visited on December 27, 2013).

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 423

largely similar to powers ordinarily enjoyed by standing committees."' A more

significant consideration however rests on the difference between the parlia-
mentary and presidential systems of government. In the US, lack of ministerial
responsibility arguably creates a clearer justification for investigative oversight.
Such a power would be required to ensure laws passed by the Congress are
implemented properly."'

This argument has less credence in a parliamentary system

since the government is directly responsible to the Parliament. Since there is
no divided government, investigative oversight on a pattern similar to the US
Congress may dilute the principle of ministerial responsibility.

Apart from the dilution of the formal principle of ministerial re-

sponsibility, sound reasons emerge once we examine the process after a com-
mittee has determined that a member of the executive has acted illegally. Once
a committee finds a minister or a government official guilty of wrongdoing,
appropriate action would have to be taken by the government or Parliament, or
both. If the Parliament does not consider the government's response to be ade-
quate, it may try and act on its own. In extreme cases, opposition members may
bring a motion of no-confidence against the government. The result, regardless
of the factual circumstances, depends on whether the government commands
or can negotiate a majority in the House. Consequently, the outcome is predi-
cated on political negotiations rather than factual circumstances. The question
is whether it is desirable to alter this structure.

It may be better to design an outcome where a finding of wrong-

doing by a committee mandates investigation into such actions by government
investigative agencies. Structurally, this would be least disruptive of the sepa-
ration of powers currently existing within the Indian parliamentary system.
Since action by investigative agencies is mandated, there would be no oppor-
tunity for government officials to prevent the initiation of such investigation.

It is important to note here that while a sub-committee may reach

a finding of wrongdoing, the finding would have to be adopted by the whole
committee. Additionally, all reporting by the government would have to be
done to the committee, which may then delegate further action on such reports
to the relevant sub-committee. The conferment of these powers to the com-
mittee as a whole also has potential for misuse. However, larger number of

See for example the resolution establishing the Joint Parliamentary Committee on the Offices
ofProfit on July 27, 2009 in the Lok Sabha, available at http://164.100.47.132/LssNew/psearch/
Resultl5.aspx?dbsl=404 (Last visited on December 27, 2013).
1 See McGrainv. Daugherty, 273 US 135 (1927) and Sinclairv. United States, 279 US 263 (1929)
(Where the US Supreme Court upheld the investigative powers of Congress as necessary to
obtain information for legislating effectively. In Watkins v. United States, 354 US 178 (1957),
the Supreme Court also declared Congress' broad power to include the administration of ex-
isting laws as well as to check alleged acts of corruption and mismanagement).

July - September, 2013

424 NUJJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

members, as well as wider representation of political parties would act as a

more effective check compared to sub-committees.

The power to issue subpoenas is therefore required for a far more

limited set of circumstances compared to that in the US. Defining the set of cir-
cumstances in which subpoenas may be issued can set limitations on this pow-
er."' Committees should be expressly prohibited from issuing subpoenas for
enquiring into active investigations being conducted by investigative agencies.
They should also be prohibited from issuing subpoenas regarding departmen-
tal inquiries against officials while they are still being conducted. The essence
of imposing these and other limitations is to guard from parliamentary inter-
ference on subjects that are inherently administrative functions. Limitations
should not be imposed on subpoena power related to subjects that may also be
acted upon by the legislature i.e. policy-making.

Moreover, the issuance of a subpoena by a subcommittee must be

confirmed by a majority of the standing committee. This is necessary to pre-
vent this power from being used to pressurize government officials. The power
to issue subpoenas and to call for contempt is co-existent with that of calling
for evidence and testimony.' The Indian Parliament enjoys an inherent right to
call for contempt, independent of a statutory framework. Without the power to
impose penalty, the powers of committees will be ineffective at best, and dis-
regarded at worst. Currently, disciplinary powers are vested with the Houses or
with the Speaker/ Chairperson. This centralization of power prevents commit-
tees from being effective institutions on their own. Additionally, the Speaker
is chosen from the majority party.'"' This creates a formal sense of neutrality
without adequately decentralizing responsibilities. The design of an effective
institutional framework should ensure neutrality in institutions requiring the
same.

Contempt powers should therefore be delegated to committees, to

be implemented through a two-thirds majority vote of the committee. Penalties
should range from fines on individuals and entities found in contempt (includ-
82
ing government departments) to civil imprisonment for a moderate term.1 In
addition courts and enforcement agencies should be mandated to aid the exer-
cise of this contempt power.

This does not imply that the power to hold in contempt should be
used lightly. It should be used only after a committee has held a contempt pro-
ceeding (or a sub-committee delegated to hold the proceeding) and the person

17 See Rosenberg supra note 28.

'go Id., 14.
1 Office of the Speaker, Lok Sabha, Election ofSpeaker, available at http://speakerloksabha.nic.
in/roleofthespeaker.asp (Last visited on December 27, 2013).
1 Find examples of punishment for contempt in other countries.

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 425

accused has a chance to respond to the charge against him/ her. The committee
should then vote based on the result of the contempt proceeding. The mandate
of the Committee on Ethics'83 should be enlarged to make them review the
committee's decision and confirm or revise a decision to hold a person in con-
tempt.8 4 In doing so, the Ethics Committee would only look at the documents
prepared by the sub-committee, and the grounds on which the committee voted
in favor of imposing a penalty. The Ethics Committee would not have to con-
duct its own investigation on the issue. Additionally, judicial review should be
available against a contempt order passed by a committee.

The power to issue subpoenas along with mandatory disclosure

requirements as well as the power to impose penalties create far greater incen-
tives for the executive to report to committees in a comprehensive manner.
Coupled with defined limitations on such powers they should also prevent un-
necessary intrusion into the work of the government.

f Reportingrequirements

Parliamentary committees should be able to ensure that the gov-

ernment provides all documents and evidence required by it in a timely manner.
It should also be able to ensure that if the executive's feedback on its findings or
reports is solicited, such feedback should be given in a timely manner. Delays
by the executive in responding to Parliamentary committees greatly reduce the
ability of Parliament to conduct oversight. The Public Accounts Committee as
well as the Committee on Subordinate Legislation have noted the delay, lack of
response by government departments to matters under its jurisdiction.15

An even more disturbing example of such delay is the delay in re-

porting on the annual budget. The budget is introduced in Parliament in March.
Parliamentary committees deliberate on the budget and prepare its reports and
the budget is passed in April. The Action Taken Report based on the executive's
feedback on the committee's recommendations is presented almost near the end

183 The Committee on Ethics is an ad-hoc committee, not a permanent one. It was constituted
in October, 2009. Its function is to oversee the ethical code of parliamentarians and look at
complaints of unethical conduct, available at http://164.100.47.134/committee/committee in-
formations.aspx (Last visited on December 27, 2013).
184 The Committee on Ethics should also be made a permanent committee.
Eleventh Report of the PAC, Non-Compliance by the Ministries/Departments in Timely
Submission ofAction Taken Notes on Non-Selected Audit Paragraphs,April 29, 2010, 12-
13, available at http://164.100.47.134/lsscommittee/Public%/ 20Accounts/11th%/2OReport%/20
English.pdf (Last visited on December 27, 2013); see also LOK SABHA COMMITTEE ON
SUBORDINATE LEGISLATION, Non Implementation of Oft-Repeated Recommendations of
Committees on Subordinate Legislation, Lok Sabha, by Various Ministries, Twenty-first
Report, December 16, 2011, available at http://164.100.47.134/lsscommittee/Subordinate%/ 20
Legislation/Twenty-First.pdf (Last visited on December 27, 2013).

July - September, 2013

426 NUJJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

of the year.8 6 The value of a committee's scrutiny on the budget is thus limited
to the points it can get the relevant ministry to agree on during its deliberation
with ministry officials. The Action Taken Report detailing the executive's re-
sponse to a committee's recommendations on the annual budget is therefore of
no practical significance for that year's financial expenditure.

There should be detailed, and specific reporting requirements im-

posed on the executive for different sorts of functions which the committees
are to perform. First,all documentation or records asked from the government
should be submitted within sixty working days. This requirement may be re-
laxed by a period of thirty days by the chairman of the committee based on a
request from the concerned government department. Further extensions should
be granted by a majority vote of the committee, only if the head of the depart-
ment appears in person before the committee to explain the reasons for seeking
such a relaxation. In any case, such an extension should not be for more than
a period of ninety days. This gives the executive a maximum period of six
months to respond to documents or other material sought by the committee.

Second, it is preferable to ensure a smaller time limit for report-

ing back to committees when the executive seeks financial appropriations. This
would apply for committee work related to the annual budget as well as any
supplementary or emergency appropriations. The standard time limit for such
reporting should be seven working days, which may be extended by a further
period of seven working days on request. Larger time limits would render par-
liamentary oversight of very limited practical use.

g. Research Support

Committees require a large amount of professional research sup-

port in order to be effective in their oversight work. The best example of this is
the existence of professional research staff for different committees within the
US Congress. Congressional committees enjoy a large amount of autonomy in
employing personnel, as well as deciding compensation."' The officials work-
ing for the Parliament, as well as the Parliament library provide research sup-
port to parliamentarians in India. Neither of these consists of personnel who are
technically qualified to provide sector-specific research support. Additionally,
parliamentarians are not provided any personal research staff.

186 The average time taken to prepare the Action Taken Reports was 9.5 months in 2008-09. See
Anirudh Burman, FinancialOversight by Parliament:Background Note for the Conference
on Effective Legislatures, November 15, 2010, available at http://www.prsindia.org/adminis-
trator/uploads/media/Conference%20note/Conference%20 note%20 on%20financial%20over-
sight.pdf (Last visited on December 27, 2013).
1 The House Rules of the House of Representatives allow for the appointment of up to 30 pro-
fessional staff members for each committee. The chairperson of the committee decides the
compensation of staff members. See Rules of the House of Representatives, Rule X(9)(a).

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 427

The proposed legislation would mandate that there should be at

least five research personnel for every sub-committee. Each standing commit-
tee should have at least ten research personnel independent of sub-committee
staff. The qualifications for research staff should be decided by a majority
vote within the committee. Sub-committees may list their own qualification
requirements, but these would have to be voted on by the standing committee.
The compensation for such research staff should be uniform across all com-
mittees, and should be decided by the Speaker and Chairperson in consultation
with each other.'

Safeguards should be included to prevent misuse of research staff

for personal use by parliamentarians. First,personal use of research staff by a
parliamentarian should be considered as an 'ethics violation', thereby subject-
ing him or her to an ethics proceeding. Second, one sub-committee should not
be able to use research staff assigned to another sub-committee without the
consent of both the chairperson of the concerned sub-committee as well as the
standing committee. This would create sufficient insulation for parliamentary
research staff from misuse by individual parliamentarians while also allowing
for flexibility in allocating research staff in case of genuine need.

h. Structuringincentivesfor committee members

The legal changes proposed above would drastically alter the in-
stitutional structure of the committees from the present system. However, over-
sight will continue to be ineffective if parliamentarians do not have adequate
incentives to conduct oversight in the first place.'"' Presently, parliamentarians
by and large prefer working in the constituency to working in Parliament. This
is largely because their electoral fortunes are determined by the work done in
the constituency rather than their achievements in Parliament.' Additionally,
the parliamentary model of democracy reduces incentives for strong over-
sight."' Committee members from the majority party do not have the same

Some standing committees are under the administrative supervision of the Lok Sabha secre-
tariat while others under the Rajya Sabha secretariat. See ParliamentaryCommittees, avail-
able at http://www.parliamentofindia.nic.in/Is/intro/p21.htm (Last visited on December 27,
2013).
189 As Mehta and Kapur state: "...opposition parties are unable to generate new information about
government activities that can allow them to take the executive to task", Mehta & Kapur, su-
pra note 53, 10.
190 See Mehta & Kapur, supra note 53, 19.
191 Terry M. Moe & Michael Caldwell, The InstitutionalFoundationsofDemocraticGovernment:
A ComparisonofPresidentialandParliamentarySystems, 150 JOURNAL OF INSTITUTIONAL AND
THEORETICAL ECONOMICS 171, 177 (1994) (The authors argue that the governing party is much
more free to pass its own program at will than in a presidential system. Though they say it
increases structural accountability, in my opinion it also reduces incentives for oversight in
Parliament. Though structural accountability is enhanced, mechanisms for such accountabil-
ity rarely incorporate legislative inquiry as a means to prevent executive indiscretions).

July - September, 2013

428 NUJJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

incentives for oversight as committee members in the US Congress.19 2 The po-

litical fortunes of committee members are tied to the fortunes of their party.
Strong oversight that could cause potential embarrassment for the government
may have negative consequences for committee members of the majority party.
Minority members would also be wary of being subjected to stringent stand-
ards of oversight if they perceive that their party may come to power in the near
future.

For this reason, it is proposed to establish certain minimum stand-

ards of performance for committees. This may be done by first requiring that
all committees and sub-committees prepare agendas and action points on an
annual basis. Both houses of Parliament should approve these. Second, all com-
mittees should be required to prepare a report of the work undertaken by them
in the past year. This should contain a list of all work undertaken by them, a
report on whether the work undertaken satisfies the agenda set at the beginning
of the year, and reasons in case of non-fulfillment. Third, the Speaker should
be mandated to fix time for chairpersons of committees to justify committee
agenda and solicit feedback, and also raise any issues regarding their commit-
tee's interaction with the executive.

While these proposals do not directly address the issue of incen-

tives, they create pressure on committees to publicize its work on the floor of
the House. This should in turn create pressure for committee chairpersons to
ensure that the committee is working effectively. While this framework is far
from ideal, it does create some sort of competition between committees to do a
better job of scrutinizing the executive.

Existing rules of procedure provide that disciplinary action may

be initiated against a committee member if he/ she absents himself/ herself
from two consecutive committee meetings.19 3 This rule should be made non-
discretionary by mandating that committee chairperson automatically take no-
tice of such absence, and refer such cases to the Speaker/Chairperson. Again,
while this provision may not actually ensure qualitatively better oversight, it
would at least ensure that committee members do not abdicate their committee
responsibilities in favor of other priorities.

This and other legislative proposals for strengthening the com-

mittee system would result in a vastly different committee system than the one
at present. Committees would become far more specialized, more stable and
have greater capacity to conduct oversight. However, incentive mechanisms for
parliamentarians need a response addressing political incentives. While that is
essential, it cannot be examined within this paper. It is however contended that

192 See Kapur & Mehta, supra note 53, 12-13.

193 Rules of Procedure and Conduct of Business in the Lok Sabha, Rule 260, available at
http://164.100.47.132/LssNew/rules/rules.aspx (Last visited December 27, 2013).

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 429

the proposals outlined above would in fact increase incentives considerably

from the present system. Parliamentarians may oppose a structural shift if it
takes time away from their constituency work. However, over time the empha-
sis on parliamentary and oversight work would be equally cumbersome for all
incumbents. Therefore, the political incentives for conducting oversight itself
may change over a period of time.

VI. IMPROVING OVERSIGHT MECHANISMS IN

THE LOK SABHA AND RAJYA SABHA
One primary issue with respect to the Parliament is paucity of
time. The number of days the Parliament sits has reduced over the years. 9 4
Therefore, while the role of the State has grown more complex, the role of the
legislature has become less relevant. One reason for the decrease in the num-
ber of days is the power of the President to convene Parliament."' Effectively,
the council of ministers convenes the Parliament. The executive may have a
tendency to take its majority in Parliament for granted. It would therefore have
no incentive to convene the Parliament for any longer than necessary for the
purposes of approving the government's agenda.

This paucity of time has obvious implications for oversight that

may happen in the Houses. Parliamentary committees continue to hold meet-
ings even when Parliament is not in session. However, hardly any of this work is
ever discussed in either House. The oversight related work of the DSRCs has to
be discussed and debated in Parliament for their work to be of any consequence.
This cannot be done in an ad-hoc manner merely by scheduling discussions on
important subjects as and when such demands arise.

Presently, the Question Hour is the only mechanism related di-

rectly to parliamentary oversight of the executive. However, there have been
repeated instances of the Question Hour being adjourned in the face of disrup-
tions or disturbances.196 Additionally, the Question Hour allows individual par-
liamentarians to question the executive on matters important to them. It does
not facilitate a systematic scrutiny of the executive on a particular issue. Such
systematic scrutiny is stymied by the existing lack of scrutiny at the committee

194 Kumar, supra note 153.

195 Constitution of India, 1950, Art. 85.
196 ParliamentDisruption Costs Exchequer Rs2 Crore a Day, DNA INDIA November 22, 2011,
available at http://www.dnaindia.com/india/report parliament-disruption-costs-excheq-
uer-rs2-crore-a-day_1616166 (Last visited on December 27, 2013); ParliamentDisrupted
Over Anti-Chidambaram Protests, TIMEs OF INDIA December 16, 2011, available at http://
articles.timesofindia.indiatimes.com/2011-12-16/india/30523972 1 question-hour-protests-
by-opposition-members-proceedings-in-both-houses (Last visited on December 27, 2013); Its
Time to Make MPsAccountable, Express Buzz February 26, 2012, available at lhttp://express-
buzz.com/voices/it's-time-to-make-mps-accountable/366361.htm (Last visited on December
27, 2013).

July - September, 2013

430 NUJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

level, as well as the information asymmetry between individual legislators and

the executive.

To remedy these issues, a variety of legislative provisions may be

formulated. First,it must be ensured that the Parliament works longer to allow
for greater deliberation and debate in the two chambers. This may be done ei-
ther by modifying the President's power to convene Parliament, or mandating
that the President convene the Parliament for a minimum number of days every
year. The former requires a constitutional amendment and may be difficult to
enact.

The second alternative qualifies the President's prerogative

in a constitutional manner. It would be more viable to do so. Therefore, the
President should be mandated to ensure that Parliament convenes for at least
a hundred and twenty days every year. While it may be desirable to mandate
that the Parliament must work longer, it may impede the work of parliamentary
committees.

Third, there must be specific time allocated for discussion of com-

mittee oversight reports. One example is the time allocated for the discussion
of Private Member Bills every Friday afternoon. The Speaker/ Chairperson
should schedule at least one such session every week. The chairperson of the
relevant committee as well as the minister of the relevant ministry should be
mandated to attend such discussion. The session should end with the response
of the minister to the points raised during the discussion.

Financial oversight has to be exercised in the houses as well as

the committees. Presently, most discussion on finances takes place during the
budget session of Parliament, and when supplementary demands for appro-
priation are made later in the year. Analysis of parliamentary activity reveals
that the budgetary demands of most ministries are not discussed at all.' Most
demands are guillotined.' Any reform aimed at making the executive more
accountable should ensure that most ministries are discussed at length. It is
proposed that if the budgetary demand for a particular ministry exceeds five
percent of all demands made for that particular year, the demand should not
be guillotined. Moreover, standing committee reports on budgetary demands
should be compulsorily discussed before a particular demand can be put to vote.

19 See Burman, supra note 50.

198 Id.

July - September, 2013

 PARLIAMENTARY OVERSIGHT OF THE EXECUTIVE 431

VII. CONCLUSION: CONSEQUENCES OF THE

PROPOSED FRAMEWORK
The committee system is at the centre of the framework proposed
above. This is simply because committees seem best suited to conduct over-
sight over the executive. However, reform of mechanisms in the Houses is es-
sential to enforce accountability on the basis of the work done by committees.
While committees may be better suited for oversight, political accountability
can be best ensured on the floor of the House. Questions raised on the floor of
the House attract the attention of the Parliament as a whole. They also attract
greater attention from society in general. Moreover, the government necessar-
ily gives greater deference to the will of Parliament as expressed in the Houses
since it also has to get its own business approved.

The framework proposed above should facilitate the development

of more effective committees. Committees would initiate the year by discussing
its agenda and get it approved after discussion in the Lok Sabha or Rajya Sabha.
This would enable the executive to shape its response to queries from com-
mittees, and also lead to greater transparency. Subpoena and contempt pow-
ers would lead to more comprehensive disclosures from the executive. Finally,
changes in the internal structure such as the creation of sub-committees and
provision for research staff should exponentially increase the level of expertise
within the committees.

These changes would have indirect consequences for discussions

on the floor of the Lok Sabha and Rajya Sabha as well. First, the provision
for greater number of working days would allow a greater diversity of views
to be expressed. This would hopefully reduce the incentives for disruption,
and also force the executive to respond to a much greater number of queries.
Specialization attained from committee work would also enable members to
ask sharper questions from ministers. The general level of deliberation within
Parliament would therefore change. The result of these structural changes
would hopefully aid in ex-ante oversight over the executive.

It is my contention that the best way to uniformly enforce these

structural changes is through enactment of a central legislation. The provisions
detailed in this legislation should ideally facilitate synthesized functioning
of the various Parliamentary components as discussed above. It is pertinent
however, in light of the aforementioned need for maintaining stability, that
such legislation does not alter or impede existing powers and functions of the
Parliament. The underlying idea is to reinforce the existing framework, through
expanding the range of functions of components of the legislature. An expan-
sion in the range of functions would also require increasing both qualitative and
quantitative capacity.

July - September, 2013

432 NUJS LAW REVIEW 6 NUJS L.REV. 3 (2013)

As discussed above, qualitative capacity can be increased through

bestowing powers on committees and sub-committees to perform oversight
functions. In addition powers of subpoena and contempt will also aid in ensur-
ing compliance with oversight mechanisms. However, these powers have to be
balanced as against the executive's need to function efficiently, thus warrant-
ing the imposition of certain restrictions and duties on committees and sub-
committees. For instance the committees/sub-committees should be prevented
from monitoring existing investigations being carried out by the executive.
Furthermore as a method of ensuring accountability and transparency in the
committee system, submission of an annual report detailing the workings and
recommendations of the committee should be mandated.

An increase in quantitative capacity canbe brought aboutby better

staffing, especially in terms of research associates available to the Parliament.
A strengthened resource base will help in mitigating the existing information
asymmetry between the executive and the legislature, and empower the legisla-
ture to provide informed policy inputs.

The boost in the infrastructure of the committee system needs

to be accompanied by proactive participation in parliamentary proceedings in
the Lok Sabha and Rajya Sabha. One way to increase such participation is to
increase the number of working days of the Parliament, so as to account for the
contemplated increase in the workload of the Parliament.

The intended objectives of this legislation, thus when culled out

from the aforementioned detailed discussion should be threefold: first to insti-
tute a mechanism by which the Parliament can monitor the Central Government;
second to empower the Parliament such that it can ensure executive compli-
ance with the legislations it creates; third to increase the legislature's input in
policy-making.

Taken together, the passage of legislation firmly codifying

Parliament's oversight role and its attendant consequences would structurally
alter the functioning of the body, and in doing so, change the way the execu-
tive functions. While there is a possibility of some administrative stagnation,
policymakers have to make the tough call to strengthen democratic institutions,
and create virtuous cycles of accountability and efficiency.

July - September, 2013