Law-making without Lawyers? Only 4% of legislators elected to the 17th Lok Sabha have a law background

Bar & Bench May 30 2019
Lawyers - Somasekhar Sundaresan

Somasekhar Sundaresan

The dust has settled. After a bruising campaign, law-makers have been elected to the 17th Lok Sabha. It is time to examine what the composition of the Lower House means for the raison de etre of Parliament – legislation.

Statistics compiled by PRS Legislative Research from data published by the Election Commission of India and victorious candidates’ affidavits collated by Association of Democratic Reforms, and from the official website of the Lok Sabha, make for compelling reading.

Barely 4% of the 542 Lok Sabha MPs elected last week are lawyers – perhaps one of the lowest lawyer populations in the ultimate law-making legislature of the Republic. The Constituent Assembly that authored the Constitution of India was packed with lawyers, while 36% of the MPs in the 1st Lok Sabha were lawyers. Just 7% of the MPs in the 16th Lok Sabha were lawyers, which makes the newest Lok Sabha a new low for lawyer representation in law-making.

The Indian Republic is at a juncture where professions and their regulation is in a crisis. The intensity of promise perceived in the regulatory regime governing our professions appears low. Legislation around regulating professions could well be the next frontier of law-making for the new Lok Sabha.

Chartered Accountants have just recently been upstaged, with the Institute of Chartered Accountants of India being replaced in disciplinary jurisdiction by the National Financial Reporting Authority (NFRA).  

Parliament’s contribution to the NFRA is nothing more than a single section (Section 132) in the Companies Act, 2013.  Based on this single provision, the NFRA, an entirely new authority with powers akin to those enjoyed by other creations of Parliament, has been established, but solely through subordinate legislation.

The language in the subordinate law is identical to the language in Parliamentary legislation that govern SEBI, IRDA, TRAI, and other such regulators. This is a classic shift in share of ground occupied, with Parliament giving way to the executive government. 

Likewise, the National Medical Commission Bill that has been doing the rounds of Standing Committees of Parliament, seeks to change the regulatory structure around the medical profession, currently overseen by the framework of the Medical Council of India.  

One is not sure if and when the regulatory framework for the legal profession will come up for legislative intervention.  

In this backdrop, the representation of other professionals in the newest Lok Sabha is noteworthy for how abysmal it is – medical doctors (4%); teachers (2%) and those classified as “artists” (3%).  

The Lok Sabha is most likely to pass legislation exactly on the lines dictated by the executive government that enjoys a huge majority in the Lok Sabha (the ruling party alone has over 300 MPs). Anti-defection law enables issuance of whips, killing any room for a nuanced multiplicity of views on the floor of Parliament. The only check and balance on totally erroneous policy adoption is, therefore, the political influence that elected MPs can wield within the party in government, to influence legislation that is piloted through the Lok Sabha.  With such poor representation of professionals in the Lok Sabha, such influence can hardly be expected to be of any consequence.

Of course, post-legislative judicial review is indeed available under the Constitution, but the scope for being a check and balance is naturally limited. Such review would hardly be a cure for crudely fashioned legislation.

Indeed, in the Supreme Court’s words, crudities and inequities in complex legislation cannot be a ground for saying legislation made by Parliament is unconstitutional. We can end up having “good” (constitutionally valid) law that is “bad” in regulating and nudging desirable behavioral conduct. For example, a post-Nirbhaya type law that is populist in perception and low-scoring in effectiveness of outcomes.

It is pertinent to note that the highest citation of an “occupation” by candidates in their affidavits, is “political and social service” – 39%. In short, Parliament is substantially in the hands of those in the business of being politicians and seeking to become law-makers. The occupation of law-making can only be regulated by the legislature. Unless Parliament miraculously develops an ability to reform itself, the business of law-making presents a bleak outlook for society.

The author is an advocate with a regulatory practice focus.

 

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