Editorials, GS-2, Indian Polity, Public Admin 2, Uncategorized

The power to certify

The Hindu

Context

  • Recently, the Aadhaar Bill and the Finance Bill were passed as Money Bills, though they may not have met the strict criteria laid out in the Constitution.
  • This meant that the Rajya Sabha had only a recommendatory role while discussing these Bills.
  • While the Speaker has the power to determine whether a Bill fulfils the requirements of a Money Bill, there has to be a check to ensure that this power is not misused.
  • The Supreme Court should examine this issue under its power of judicial review .

What is a Money Bill?

  • Article 110(1) of the Constitution states that a bill can be termed as a Money Bill if it contains “only” six types of provisions or anything incidental to these.
  • Broadly speaking, these include taxation, government receipts and expenditure, government borrowings, and guarantees.

Procedure for the passing of Money Bills

Article 109 of the Constitution laid down the special procedure in respect of Money Bills .  The  following is the procedure for the passing of Money Bills in Parliament :

  • A Money shall not be introduced in the Council of  States.
  • After a Money Bill has been passed by the House of the People it shall be transmitted to the Council of States for its recommendations and the Council of States shall within  as period  of fourteen  days  from the date of receipt  of the Bill return the Bill to the House of the people  with  its recommendations.
  • If the House of the people accepts any of the recommendations of the Council  of the States , the Money Bill  shall be deemed  to have been  passed  by both Houses with the amendments  recommended  by the Council of States and accepted  by the House of the People.
  • If the House of the People  does not accept any of the recommendations of the Council of States  the Money Bill shall be deemed  to have  been passed  by both Houses in the form in which  it was passed  by the House of the People  without  any of the amendments recommended by the Council of States.
  • If a Money Bill passed by the House of the People and transmitted  to the Council  of States for its recommendations and is not returned to the House of the People within the said period of fourteen  days, it shall be deemed to have  been passed by both  houses at the expiration of the said  period in the  form in which  it was passed  by the House of  the People  .

Aadhaar Bill passed as Money Bill

Arguments in favour Arguments against
The primary objective of the Aadhaar Bill is to create a system for providing subsidies, and as the provisions relate to government expenditure the Bill can be termed as a Money Bill. The counterargument is that the Aadhaar Bill has several other provisions, including permitting use of the system for other purposes, so it does not meet the requirement of having “only” the six provisions.

Finance Bill passed as Money Bill

  • The Finance Bill too had provisions other than those related to taxation.
  • It amended the Reserve Bank of India Act to enable the creation of a monetary policy committee.
  • It also amended the Foreign Contribution Regulation Act (with retrospective effect) to change the definition of foreign company.

Can the Supreme Court examine whether the certificate of the Speaker was correctly given?

  • Article 110(3) states: “If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final.”
  • In addition, Article 122 prohibits courts from inquiring into proceedings of Parliament and examining their validity.

Case Study:-

  • In  Mohd. Saeed Siddiqui v State of U.P. , Supreme Court decided that the decision of the Speaker is final and the said decision cannot be disputed nor can the procedure of the State Legislature be questioned by virtue of Article 212.
  • The Article 212 applies to State legislatures and is analogous to Article 122 for Parliament.

If the Supreme Court cannot examine whether the Speaker gave the certificate correctly, what prevents a misuse of this provision to prevent scrutiny by the Rajya Sabha?

  • To illustrate with an extreme example, if a Bill to amend the Indian Penal Code is certified as a Money Bill, is that decision final and not open to judicial scrutiny?
  • There are several prior cases in which the Supreme Court has examined the decision of the Speaker or the legislature.

Case Study:

  • In Kihoto Hollohan v. Zachillhu, the Supreme Court examined the constitutional validity of   Paragraph 6(1) of the Tenth Schedule.
  • In this case , SC said  that Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen, is valid.
  • But the concept of statutory finality embodied in Paragraph 6 (1) does not detract from or abrogate judicial review under Articles 136,226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.
  • It went on to say that the protection of Articles 122 and 212 was only to protect the validity of proceedings from mere irregularity of procedure.
  • The Court also struck down paragraph 7 (which barred judicial review) stating that it did not meet the requirements of Article 368(2), which requires ratification of half of all State legislatures for any changes made to provisions related to the higher judiciary.

Case Study:

  • In Amarinder Singh v. Spl. Committee , Punjab Vidhan Sabha , the court has set limits to the privilege of the legislature under Article 122, and overturned its resolution to expel a member.

Conclusion

  • The Constitution has a system of checks and balances, which includes the Rajya Sabha as a check on the Lok Sabha.
  • It requires all Bills to be passed by both Houses, with the exception of Money Bills (as these Bills are effectively equivalent to confidence motions).
  • While the Speaker has the power to determine whether a Bill fulfils the requirements of a Money Bill, there has to be a check to ensure that this power is not misused.
  • The Supreme Court should examine this issue under its power of judicial review under the principles laid out in the Kihoto Hollohan and Raja Ram Pal cases.
Editorials, GS-2, Indian Polity, Public Admin 2, Uncategorized

Liberate the legislator

Article Link

Summary:

Recent disqualification of 9 rebel MLAs in Uttarakhand under anti- defection law has once again brought back discussions surrounding the law to the fore.

What is Anti-defection law?

The anti-defection law was passed by parliament in 1985 strengthened in 2002. The 52nd amendment to the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection.

  • A member of parliament or state legislature was deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote. That is, they may not vote on any issue in contravention to the party’s whip.
  • Independent members would be disqualified if they joined a political party. Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.

The law also made a few exceptions:

  • Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post.
  • A party could be merged into another if at least two-thirds (Initially one-third) of its party legislators voted for the merger.

However, the law has had some unintended consequences too:

  • The law succeeded in checking the regular phenomenon of unstable governments and horse-trading due to floor crossing by legislators. However, it played a huge role in encouraging the centralisation of India’s political parties.
  • Legislators in India now cannot take a stand against party leaders or defy the party whip, and use their conscience to vote on a Bill in the House due to fear of losing their seat under the provisions of the Anti-Defection law.
  • This has also the effect of disincentivising lawmakers from seriously thinking, researching or even rifling for best practices to incorporate into legislation that is before the House for consideration and focus their energies on procedural matters.
  • Also, a legislator cannot question the sweet deals or alliances between top party leaders.

Does the law impinge on the right of free speech of the legislators?

This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). The court said that “the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.

What changes can be brought in?

  • The disqualification of a member of a House should be only on the grounds that if he votes or abstains from voting in the House with regard to a Confidence Motion, No-confidence Motion, Adjournment Motion, Money Bill or financial matters contrary to the direction issued in this behalf by the party to which he belongs to and in no other case.
  • Whips can be issued only for those legislative items that threaten the stability of government.
  • As recommended by the Goswami Committee, the government should consider giving the power to decide on disqualification under the Act to the President or the Governor, who shall act on the advice of the Election Commission.
  • The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances. The Law Commission proposed this change with the condition that partners of such alliances inform the Election Commission before the elections.

Conclusion:

The evil of political defections has been a matter of political concern. If it is not combated it is likely to undermine the very foundations of our democracy and the principles that sustain it. However, after 30 years of the enactment of the Tenth Schedule, it needs certain adaptations and further strengthening so as to be of greater relevance to our democratic process today.

 

Editorials, GS-2, Indian Polity, Uncategorized

Show Me The Money (Money Bill)

Article Link

The Lok Sabha has cuccessfully passed the Aadhaar Bill that aims to ensure targeted services to intended beneficiaries by assigning them unique identity numbers. These numbers will be given to each person who has stayed in India for 182 days in the year preceding the date of application.

  • The government, having seen the fate of the Goods and Services Tax (GST) Bill, chose to package the legislation as a money bill to ensure that it was not blocked by the Rajya Sabha, where the ruling NDA is short of a majority. The bill will now go to the Rajya Sabha, which can deliberate on it and suggest amendments.

How government defends this move?

The government, citing Section 110 of the Constitution, says any bill which facilitated the payment of moneys into or withdrawals of money from the Contingency Fund of India was a money bill.

Why such move?

In all democratic parliaments, as in India, the Lower House alone has the power to grant money to the executive. A bill that deals with such matters is called a money bill. A money bill cannot be passed or rejected by the Rajya Sabha, which can keep such a bill for only 14 days, after which it will be deemed to have been passed by both Houses. Hence, such route is often preferred by the governments.

What the law says?

As per Article 110(1), a bill that contains only provisions dealing with the following qualifies as a money bill:

  1. The imposition, abolition, remission, alteration or regulation of any tax.
  2. Regulation of borrowing or the giving of any guarantee by the government of India, or undertaking financial obligation by the government.
  3. The custody of the Consolidated Fund of India (CFI) or the Contingency Fund of India, the payment of moneys into or withdrawal from them.
  4. The appropriation of moneys out of the CFI.
  5. Declaring any expenditure as a charged expenditure on the CFI.
  6. The receipt of money on account of the CFI or the public account of India or the ambit of accounts of the Union or of a state.
  7. Any matter incidental to the above issues.

Does Aadhar Bill deal with any of the above mentioned provisions?

According to few experts, Aadhaar bill does not deal with imposition, abolition, alteration, etc, of tax; nor does it deal with the regulation of borrowing or giving a guarantee by the government or an amendment in respect of any financial obligation to be undertaken by the government.

  • This bill also does not deal with the custody of the CFI, etc. The moneys paid into or withdrawn from such funds are incidental.
  • Besides, the bill is not an appropriation bill that appropriates money from the CFI. It does not deal with declaring any expenditure as a charge on that fund.
  • Further, it does not deal with the receipt of money on account of the CFI or the public account, or the custody or issue of such money, or the audit of the accounts of the Union or states.

Why Aadhaar bill cannot be a money bill?

The object of the Aadhaar bill is to create a right to obtain a unique identity number, regulate the enrolment process to collect demographic and biometric information, and create a statutory authority for regulating and supervising the process. It also specifies offences and penalties.

  • Thus, the obvious purpose of the bill is to deal with all aspects relating to the unique identity number of Indian residents, which will be used for multiple purposes.
  • Also, clause 4(3) states that the Aadhaar number may be accepted as proof for “any purpose”, not merely for the payment of subsidy or other monetary benefits.
  • Therefore, the above analysis clearly shows that the Aadhaar bill is not a money bill. Subtle attempts have been made to give it the appearance of a money bill by referring to the CFI in certain clauses. But this does not alter the character of the bill, which does not deal with the CFI.
  • Further, subsidies, subventions, etc, are not a part of this bill. The Aadhaar bill does not make any provision for subsidies or other government benefits or specify beneficiaries.

Where does it fit then?

The Aadhaar bill comes under the category of financial bills under Article 117, which would inter alia involve expenditure from the CFI.

  • The Constitution stipulates that such bills be considered only after the president has recommended their consideration. However, such bills can be introduced in either House and, as per Article 107(2), need to be passed by both Houses.

Conclusion:

In this case, prima facie it appears that the government has taken the money bill route to bypass the upper house. This move is even backed by the speaker of the Lok Sabha, whose decision is final on the question of whether a bill is a money bill. However, this constitutional provision cannot be seen as a convenient tool to deal with an inconvenient second chamber. The Constitution reposes faith in the speaker’s fairness and objectivity. Article 110(1) provides the touchstone of the decision to be taken by the speaker under Article 110(3). Any decision actuated by extraneous considerations can’t be a proper decision under Article 110(3). The speaker’s decision needs to be in conformity with the constitutional provisions. If not, it is no decision under the Constitution.

GS-2, Indian Polity, Public Admin 2, Uncategorized

Explained-Parliament and its committees

What are parliamentary committees and what do they do?

A lot of parliamentary business gets done in these committees, away from both Houses. The popular perception, that MPs work only when Parliament is in session (three sessions in a year), is a bit uncharitable. Every member of the House is a member of one of the parliamentary committees. The members of these committees discuss every Bill that is referred to them threadbare.

What are the different parliamentary committees?

Broadly, they are of two kinds: ad hoc committees and the permanent committees. Ad hoc committees are appointed for a specific purpose and cease to exist when they finish the task assigned to them and submit a report. The principal ad hoc committees are the select and joint committees.

There are some other ad hoc committees too, but they handle different issues such as privileges, ethics, security, government assurances and food management.

Besides, Parliament has permanent committees called the standing committees. Most Bills, after their introduction, get referred to department-related standing committees, which are permanent and regular bodies. There are 24 standing committees, each dealing with specific subjects such as commerce, home affairs, HRD, defence, health etc. Each standing committee has 31 members — 21 from the Lok Sabha and 10 from the Rajya Sabha — nominated by the Speaker and the Chairman. Their term lasts a year. The idea behind these committees, first set up in 1993, is that with Parliament working for a limited days in a year, Bills, which deal with technical and policy matters, need to be discussed in detail, after taking the view of diverse stakeholders and experts. While referring a Bill to a standing committee, the Chairman or the Speaker may specify the time within which it has to submit its report.

The joint committees and standing committees become defunct after the dissolution of the Lok Sabha. A Bill, which has already been referred to a standing committee and passed by one House may be referred to a select committee by another House. That’s what happened in the case of the GST Bill.

When is a Bill referred to a select committee?

Under Rule 125 of the Rajya Sabha Rules and Procedures, any member may move, as an amendment, that a Bill be referred to a select committee and, if the motion is carried, the Bill is referred to such a committee.

What happens after a Bill is referred to a committee?

The committee may invite written representations from the public, interested groups and organisations. It may ask government officials for details of policy considerations behind each clause of the Bill or any other information. After hearing and examining the evidence, the chairman puts the Bill before the members and invites their suggestions and amendments on every clause. The committee then formulates its conclusions and if needed, amends it. The minister and government officials concerned attend the meetings of the committee. The committee cannot alter the scope of the Bill or change it to the extent of rendering it contrary to the principle of the Bill referred to it. However, these committees do have very wide-ranging powers and there are instances of committees redrafting a Bill or even changing its title.

Can a Bill go back to a committee?

The House concerned or both Houses will consider the report of the select committee or the joint committee. They can re-commit the Bill to the same committee or to a new committee with the concurrence of the other House.

What happens after the report of a select or a joint committee is submitted to the House?

After the report is submitted in the House, the member in-charge may make a motion that the Bill, as reported by the committee, be taken up for clause-by-clause consideration. In the case of a report of a standing committee, there is no such motion. The reason is that the report of the standing committee “is based on a broad consensus and has persuasive value to be treated as considered advice”. It is for the minister in-charge of the Bill or any member to move necessary amendments in the House in the light of the recommendations or suggestions made by the committee.

GS-2, Public Admin 2, Uncategorized

Misdiagnosis of the Rajya Sabha malfunction

Mohammad Tahir representing Bihar in the Constituent Assembly during the debate on the Constitution on July 28, 1947 said that

“the Upper House is a creation of imperialism” and argued that independent India did not need it.

To which Gopalaswami Ayyangar, replied that “the role of the Upper House is merely to delay legislation which might be the outcome of passions of the moment until the passions have subsided”. It was obvious even to our founding fathers that the “House of People” (Lok Sabha) can fall prey to passionate rhetoric and thus felt a need for a “House of Elders” (Rajya Sabha) to instil calm.

Next is this false narrative of indirectly elected members of the Rajya Sabha having veto powers over the members of the Lok Sabha who are direct representatives of the people.

In our first-past-the-post electoral system where a political party can form a government without the majority of citizens voting for it, legislation passed by the Lok Sabha may not necessarily represent the views of the majority. It then becomes even more pertinent and critical to have an active and vibrant Rajya Sabha.

That the Rajya Sabha would an indirectly elected body and would act as a balance to certain whimsical legislation of the people’s representatives in the Lok Sabha was a conscious design of our founding fathers. If anything, this need has only been exacerbated with creeping majoritarianism in the current Lok Sabha. The inability to build consensus by a ruling party cannot be disguised as opposition obstruction.

The need to build consensus in both Houses of Parliament to pass legislation should be the guiding principle of our parliamentary democracy.

Then, there is the argument that the Anti-Defection Act, which immediately disqualifies any member of Parliament who either changes political parties mid-way or disobeys the whip of her party, aggravates the chances of a dysfunctional Parliament.

The core principle behind the Anti-Defection Act is to prevent horse-trading on the floor of the House and penalise members who succumb to temptations from opposition parties. This principle still remains very relevant for a large, diverse polity such as ours, with a large number of regional parties.

The Lok Sabha recently held a discussion on a private member’s bill to de-criminalise certain Section 377 of the Indian Penal Code. There was no whip issued by the major parties and members voted according to their choices, many times contrary to their party colleagues.

The choice of when to issue a whip rests with the party. The Anti-Defection Act in itself cannot be made a villain for an internal matter of political parties over degrees of freedom to be given to their members for voting in Parliament.

Scope for reform

There is clearly a need for new rules to prevent productivity of the entire House being held hostage by a few members rushing to the Well. There has to be an outlet for opposition members to voice their protests without disrupting productivity. One suggestion is to have designated day(s) in a week on which the opposition can raise, discuss and debate issues rather than the government dictating the order of business every day of the session. There can be innovative ways to create a framework within which the right to protest is not taken away but is done constructively.

Read Less check and more balance, another good article

Q.  “The Upper House is a creation of imperialism and independent India did not need it.” Critically comment.