The Real Price of Parliamentary Obstruction

642 Seminar (February 2013) 37

Oxford Legal Studies Research Paper No. 42/2013

6 Pages Posted: 12 Feb 2013

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

University of Melbourne - Law School; University of Oxford - Faculty of Law; NYU Law School; Berkeley Center on Comparative Equality Law

Date Written: 2013

Abstract

In this paper, I argue that legislative obstruction in India is rule-violating, costless and insurmountable, resulting in a situation akin to the 'legislative state of nature'. In this state, the normal constitutionally-mandated legislative decision rule of majority support is substituted by one requiring near-unanimity. This unanimity-based decision rule grants an effective veto to every political group with a critical mass, and creates a strong inertia in favour of the status quo — a particularly distasteful political position in the deeply unequal Indian context. Frequent parliamentary obstruction has, unsurprisingly, led to legislative paralysis, and the concomitant muscularisation of the executive and the judiciary. Separation of powers is in tatters and parliamentary democracy seriously threatened. The article ends by suggesting that the practice of obstruction of legislative bodies can be checked only be increasing the political and financial costs of obstruction. These costs must be collective (i.e. not targeted at the obstructing members alone) and automatic (i.e. not dependent on their accrual on the politically weak office of the Speaker) in order to be effective.

Keywords: parliament, legislative obstruction

Suggested Citation

Khaitan, Tarunabh, The Real Price of Parliamentary Obstruction (2013). 642 Seminar (February 2013) 37; Oxford Legal Studies Research Paper No. 42/2013. Available at SSRN: https://ssrn.com/abstract=2215859

Tarunabh Khaitan (Contact Author)

University of Melbourne - Law School ( email )

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Australia

University of Oxford - Faculty of Law ( email )

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NYU Law School ( email )

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Berkeley Center on Comparative Equality Law

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Berkeley, CA 94720-7200
United States

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