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GS Paper: Parliament & State Legislatures

  • The case of “Governor’s pleasure”

    pleasure

    Context

    • A tweet put out recently by the office of the Kerala Governor evoked nationwide attention for all the wrong reasons. It said: “the statements of individual Ministers that lower the dignity of the office of the Governor can invite action including withdrawal of pleasure”. the Governor sent a letter to the Kerala CM asking him to act against the State Finance Minister, who, according to the Governor, had “ceased to enjoy” the Governor’s “pleasure”. The Chief Minister declined to do so.

    Who is a Governor?

    • Parallel to President: The Governors of the states of India have similar powers and functions at the state level as those of the President of India at the Central level.
    • Nominal head: The governor acts as the nominal head whereas the real power lies with the Chief Ministers of the states and her/his councils of ministers.
    • Similar offices: Governors exist in the states while Lieutenant Governors or Administrators exist in union territories including National Capital Territory of Delhi.
    • Non-local appointees: Few or no governors are local to the state that they are appointed to govern.

    Important Constitutional Provisions related to Governor

    • Article 153: It requires a governor to be appointed for every state in India.
    • Article 154: Vests the executive power of the State in the Governor
    • Article 155: Appointment of the Governor
    • Article 156: Term of Office of Governor
    • Article 157: Qualifications for appointment as Governor

    Executive functions of Governor include

    • An important function of the Governor is to appoint the Chief Minister of the State.
    • Other ministers are also appointed by the Governor on the advice of the Chief Minister.
    • The ministers including the Chief Minister hold office during the pleasure of the Governor.
    • The Governor has the constitutional right to know the decisions of the Council of Ministers relating to the administrative affairs of the State and the proposals for legislation.

    What are the contradictory issues with Governor’s office?

    • Bound by the principle: The function of the appointed Governor is always subject to the policies of the elected government, and not vice-versa. This is a foundational theory of India’s constitutional democracy.
    • Contradictory Aid and advise and Discretion: Article 163(1) says that the Council of Ministers must aid and advise the Governor. However, according to Article 163(2), the Governor can act in his discretion in certain matters as permitted by the Constitution
    • Discretion still bounds by cabinet decision: Governor is generally bound by the Cabinet decision except when he has a legitimate right to invoke his discretion, say, for example, in deciding on sanction to prosecute a cabinet minister or in his decisions as Administrator of a Union Territory, as per the orders of the President of India, etc.
    • Apparatus of interaction: There are no provisions laid down for the manner in which the Governor and the state must engage publicly when there is a difference of opinion. The management of differences has traditionally been guided by respect for each other’s boundaries.

    Pleasure

    Issues of “Pleasure” of Governor

    • Constitution Bench judgment of Supreme court in Shamsher Singh vs State of Punjab (1974) case:
    • In Shamsher Singh, for the purpose of comparison, the Supreme Court extracted Dr. B.R. Ambedkar’s introductory statement made on November 4, 1948, in the Constituent Assembly, which said: “The President of the United States is not bound to accept any advice tendered to him by any of his secretaries. The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so, so long as his Ministers command a majority in Parliament”.
    • The same principles apply to the Governors as well, since the Union Minister also holds the office “during the pleasure of the President” as in Article 75(2) of the Constitution.
    • “Withdrawal of pleasure”, without advice from the Council of Ministers, as indicated by Raj Bhavan is a misconception.
    • Historical background of Article 264:
    • The draft Constitution, prepared by the Constitutional Adviser in October 1947, contained Article 126, according to which, “Governor’s Ministers shall be chosen and summoned by (the Governor) and shall hold office during his pleasure”.
    • This Article, which was made part of the draft of the erstwhile Article 144, was discussed at length in the Constituent Assembly.
    • The general discretion with the Governor was taken away, and the Cabinet was given the authority to rule. Amendment to the draft Article 144 moved by B.R. Ambedkar resulted in the present constitutional scheme of Articles 163 and 164.
    • According to the Scholar Subhash C. Kashyap:
    • The words ‘during pleasure’ were, always understood to mean that the ‘pleasure’ should not continue when the Ministry had lost the confidence of the majority.
    • the moment the Ministry lost the confidence of the majority, the Governor would use his ‘pleasure’ in dismissing it.

    Conclusion

    • During the deliberations in Constituent Assembly Debates,1949, H.V. Kamath asked if there was any guarantee against abuse of power by the Governor. The immediate reaction by P.S. Deshmukh, another prominent member was: “the guarantee is the Governor’s wisdom and the wisdom of the authority that will appoint the Governor”

    Mains Question

    Q. What is the role of Rajbhavans in the state government’s day to day business. Analyze the constitutional mandate of the governor’s pleasure and accountability of ministers.

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  • Kerala Governor says he can sack errant Ministers

    Kerala Governor has opened the next battlefront against the State government by threatening to remove Ministers from their posts if they continued to lower the dignity of his office.

    Why in news?

    • This is for the very first time that any Governor has expressed his displeasure.
    • There has been no occasion so far of a Governor unilaterally removing a minister from the government.

    Governor in the parliamentary system

    • The position, role, powers, and conditions of office of the Governor are described in Articles 153-161 of the Constitution.
    • The position of Governor is similar to that of the President at the Union.
    • He is at the head of the state’s executive power, and barring some matters, acts on the advice of the council of ministers, which is responsible, in accordance with the parliamentary system, to the state legislature.

    Apolitical nature of his appointment

    • The Governor is appointed by the President (on the advice of the central government) and, therefore, acts as the vital link between the Union and the state governments.
    • The post was envisaged as being apolitical; however, the role of Governors has been a contentious issue in Centre-state relations for decades.
    • The Governor enjoys certain powers such as giving or withholding assent to a Bill passed by the state legislature or determining the time needed for a party to prove its majority.
    • The party must be called first to do so, generally after in a hung Assembly — which have been weaponized by successive central governments against the political opposition.

    Is the Governor capable to remove a Minister?

    • Article 164(1) says state “Ministers shall hold office during the pleasure of the Governor”.
    • This is the provision that the Kerala Governor was seemingly alluding to.
    • Article 164(1) deals with the appointment of the Chief Minister and other ministers.
    • While the Governor does not have to seek anyone’s advice while appointing the Chief Minister, he can appoint a minister only on the recommendation of the Chief Minister.
    • The Governor has no power to pick anyone he chooses to make a minister. He can appoint a minister only on the advice of the CM.

    Major judicial observation in this regard

    Ans.  Shamsher Singh & Anr vs State Of Punjab (1974)

    • The Supreme Court ruled that- the President and Governor exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations.

    What were the exception situations referred to?

    • These situations could arise if:
    1. The PM or CM cease to command majority in the House
    2. The government loses majority but refuses to quit office
    3. For the dissolution of the House where an appeal to the country is necessitous.
    • But even in the third scenario, the President or Governor should avoid getting involved in politics and must be advised by his PM/CM who will eventually take the responsibility for the step the court ruled.

    What did the founding fathers of the constitution believe?

    • B R Ambedkar said- The Governor under the Constitution has no function which he can discharge by himself; no functions at all.

    So what does the “pleasure” of the Governor mean?

    • The Governor can have his pleasure as long as the government enjoys majority in the House.
    • The Governor can withdraw his pleasure only when the government loses majority but refuses to quit.
    • Then he withdraws the pleasure and dismisses it.
    • Without the advice of the Chief Minister, a Governor can neither appoint nor dismiss a minister.
    • That’s the constitutional position.

    What maximum can a Governor do?

    • If a minister lowers the dignity of the Governor or his office, as Kerala Governor has alleged, Raj Bhavan can ask the Chief Minister to inquire.
    • If it is found that the minister has defamed or disrespected the Governor, he/ she can ask the Chief Minister to drop the minister.
    • This does not mean the Governor has the right to dismiss the Chief Minister or ministers at will.

    Attempts to moralize such situations

    (1) National Commission to Review the Working of the Constitution

    • The NCRWC appointed by the Atal Bihari Vajpayee government in 2000 recommended significant changes in the selection of Governors.
    • The Commission suggested that the Governor should be appointed after consultation with the CM of that State.
    • Normally the five year term should be adhered to and removal or transfer of the Governor should be by following a similar procedure as for appointment.

    (2) Sarkaria Commission

    • The Sarkaria Commission was set up in 1983 to look into Centre-state relations.
    • It proposed that the Vice President of India and the Speaker of Lok Sabha should be consulted by the Prime Minister in the selection of Governors. (without any logic behind explaining!)

    (3) Punchhi Committee

    • The Justice Madan Mohan Punchhi Committee was constituted in 2007 on Centre-state relations.
    • It proposed in its report submitted in March 2010 that a committee comprising the PM, Home Minister, Vice President, Speaker, and the concerned Chief Minister should choose the Governor.
    • The Punchhi Committee recommended deleting the “Doctrine of Pleasure” from the Constitution.
    • However, it backed the right of the Governor to sanction the prosecution of ministers against the advice of the state government.
    • It also argued for a provision for the impeachment of the Governor by the state legislature.

     

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  • Governor: 1st essential part of State Legislature

    GovernorContext

    • In Tamil Nadu, the Governor forwarded the Bill for exemptio from the National Eligibility cum Entrance Test (NEET) to the President after considerable delay.
    • In Kerala the situation has become a bit curious with the Governor publicly announcing that he would not give assent to the Lokayukta Amendment Bill and the Kerala University Amendment Bill. Such actions by Governors throw the legislative programmes of governments out of gear because of the uncertainty surrounding the assent.

    What is Role of Governor in Legislature?

    • Integral part: A Bill passed by the State Assembly becomes law only after it is assented to by the Governor.The Governor being a part of the State legislature, the process of law making is complete only when he signs it, signifying his assent.
    • Established practice: In all democratic countries, similar provision exists in their constitutions.

    Governor What is the Power of Governor Vis-e-vis legislature?

    • What Article 200 says: The Constitution provides certain options for the Governor to exercise when a Bill reaches him from the Assembly.
    • There are four possible scenarios:
    1. Assent: He may give assent.
    2. Reconsider: He can send it back to the Assembly requesting it to reconsider some provisions of the Bill, or the Bill itself. In this case, if the Assembly passes the Bill without making any change and sends it back to the Governor, he will have to give assent to it.
    3. Reserve: The third option is to reserve the Bill for the consideration of the President.
    4. Withhold: The fourth option, of course, is to withhold the assent.

    What are the Legislative practice in other democracies ?

    • UK: The royal assent is necessary for a Bill to be passed by Parliament to become law and the crown has the power to withhold assent. But it is a dead letter.
    • No power of veto: By practice and usage there is no power of veto exercised by the crown in England now. Moreover, refusal of royal assent on the ground that the monarchy strongly disapproves of the Bill or that the Bill is very controversial is treated as unconstitutional.
    • USA: In the United States, the President is empowered by the Constitution to refuse assent and return a Bill to the House but if the Houses again pass it with two thirds of each House the Bill becomes law.

    GovernorWhy there is an ambiguity over the role of governors in India?

    • Role of the governor: The question of whether a Governor is permitted by the Constitution to cause uncertainty in the matter of giving assent to the Bills passed by State legislatures assumes great importance.
    • Presidential Assent: The provision concerned makes it clear that a Bill can be reserved for the consideration of the President only if the Governor forms an opinion that the Bill would endanger the position of the High Court by whittling away its powers. The Constitution does not mention any other type of Bill which is required to be reserved for the consideration of the President. Nevertheless, the courts have conceded a certain discretion to the Governors in the matter of sending Bills to the President.
    • Constitution is silent: the Constitution does not mention the grounds on which a Governor may withhold assent to a Bill.
    • No remedy: The Indian Constitution, however, does not provide any such remedy as that of USA or UK . The courts too have more or less accepted the position that if the Governor withholds assent, the Bill will go. Thus, the whole legislative exercise will become fruitless. It does not square with the best practices in old and mature democracies.

    What is the Court mandated legislative practice?

    • According to Article 361: The Constitution prohibits the court from initiating proceedings against a Governor or the President for any act done in exercise of their powers. They enjoy complete immunity from court proceedings. It is in fact a unique situation where a government is placed in a situation of having to challenge a Governor’s action of withholding assent to a Bill.
    • Reasons: Governor while declaring that he withholds assent will have to disclose the reason for such refusal.
    • No Arbitrary actions: Being a high constitutional authority, the Governor cannot act in an arbitrary manner
    • Unconstitutional: If the grounds for refusal disclose mala fide or extraneous considerations or ultravires, the Governor’s action of refusal could be struck down as unconstitutional.
    • Rameshwar Prasad and Others. vs Union of India case: The Court held: “the immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides”.
    • Pocket veto: since the Constitution does not fix any timeline for the Governor to decide the question of assent, he can wait for any length of time without doing anything. This is illogical and militates against the constitutional scheme in respect of law making by the legislatures.

    GovernorConclusion

    • The legislature reflects the will of the people and is the constitutionally designated body to make laws. If the Governor who does not reflect in any way the aspirations of the people of the State refuses assent, and thereby defeats the legislative programme of the elected government, it would be against the spirit of the Constitution.

    Mains Question

    Q.Governor is the connecting link between state and central executive. Discuss the duties of Governor with respect to state legislature? Why Governor tilt more towards centre than state?

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  • The Mediation Bill,2021: Needs And Concerns

    MediationContext

    • The Mediation Bill, 2021 was introduced in the Rajya Sabha on December20, 2021,with the Parliamentary Standing Committee being tasked with a review of the Bill. The committee’s report to the Rajya Sabha was submitted on July 13, 2022. In its report, the Committee recommends substantial changes to the Mediation Bill, aimed at institutionalising mediation and establishing the Mediation Council of India.

    What is mean by mediation?

    • Mediation: Mediation is a process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences.
    • Brings Parties Together: Parties can save and sometimes rebuild their relationship like during a family dispute or commercial dispute.
    • Very Convenient: The parties can control the time, location, and duration of the proceedings to large extent. Scheduling isn’t subject to the convenience of courts

    MediationWhy does India need mediation?

    • No separate law: While there is no standalone legislation for mediation in India, there are several statutes containing mediation provisions,such as the Code of Civil Procedure, 1908,the Arbitration and Conciliation Act, 1996,the Companies Act, 2013, the Commercial Courts Act, 2015, and the Consumer Protection Act, 2019.
    • Supreme Court mandate: The Mediation and Conciliation Project Committee of the Supreme Court of India describes mediation as a tried and tested alternative for conflict resolution.
    • Being an international signatory: As India is a signatory to the Singapore Convention on Mediation (formally the United Nations Convention on International Settlement Agreements Resulting from Mediation), it is appropriate to enact a law governing domestic and international mediation.

    What are the Key features of the Mediation bill?

    • Promote mediation: The Bill aims to promote, encourage, and facilitate mediation, especially institutional mediation, to resolve disputes, commercial and otherwise.
    • Mandatory Mediation: The Bill further proposes mandatory mediation before litigation. At the same time, it safeguards the rights of litigants to approach competent adjudicatory forums/courts for urgent relief.
    • Confidentiality: The mediation process will be confidential and immunity is provided against its disclosure in certain cases.
    • Legally binding: The outcome of the mediation process in the form of a Mediation Settlement Agreement (MSA) will be legally enforceable and can be registered with the State district or taluk legal authorities within 90days to ensure authenticated records of the settlement.
    • Mediation Council of India: The Bill establishes the Mediation Council of India and also provides for community mediation.
    • Services of Mediator: If the parties agree, they may appoint any person as a mediator. If not, they may apply to a mediation service provider to appoint a person from its panel of mediators.
    • Disputes where no mediation required: The Bill lists disputes that are not fit for mediation (such as those involving criminal prosecution, or affecting the rights of third parties). The central government may amend this list.
    • Time bound process: The mediation process must be completed within 180 days, which may be extended by another 180 days by the parties.

    MediationWhat are the Concerns over the bill?

    • Mandatory provision: According to the Bill, pre-litigation mediation is mandatory for both parties before filing any suit or proceeding in a court,whether or not there is a mediation agreement between them.
    • Monetary punishment: Parties who fail to attend pre-litigation mediation without a reasonable reason may incur a cost. However,as per Article 21 of the Constitution,access to justice is constitutional right which cannot be fettered or restricted. Mediation should just be voluntary and making it otherwise would amount to denial of justice.
    • Clause 26: According to Clause26 of the Bill, court annexed mediation, including pre-litigation mediation, will be conducted in accordance with the directions or rules framed by the Supreme Court or High Courts. However, the Committee objected to this. It stated that Clause26 went against the spirit of the Constitution.In countries that follow the Common Law system, it is a healthy tradition that inthe absence of statutes, apex court judgments and decisions carry the same weight. The moment a law is passed however, it becomes the guiding force rather than the instructions or judgments given by the courts. Therefore, Clause 26 is unconstitutional.
    • Lack of international enforceability: Bill considers international mediation to be domestic when it is conducted in India with the settlement being recognised as a judgment or decree ofa court. The Singapore Convention does not apply to settlements that already have the status of judgments or decrees. As a result, conducting cross border mediation in India will exclude the tremendous benefits of worldwide enforceability.

    MediationConclusion

    • In order to enable a faster resolution of disputes,the Bill should be implemented after discussion with stakeholders and resolve the issues in an amicable manner. It’s a good opportunity for India to become an international mediation hub for easy business transactions.

    Mains Question

    Q.Address the key concerns in the mediation bill 2021 and how India can become the centre of international dispute resolutions.Discuss.

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  • Untangling Kerala’s Lokayukta Amendment Controversy

    The Kerala Legislative Assembly passed the Kerala Lok Ayukta (Amendment) Bill on August 30, amid a boycott.

    Who are Lokpal-Lokayuktas?

    • The Lokpal-Lokayukta issue has always generated intense debate in the country.
    • In fact, this term was first used in a report of the Administrative Reforms Commission headed by Morarji Desai as far back as in 1966.
    • Political corruption had become rampant by then and it was thought that a credible system of an ombudsman should be established to redress public grievances against the leaders and public officials.
    • The first Bill on Lokpal was introduced in the Lok Sabha in 1968 which lapsed with the dissolution of the House.
    • Anna Hazare’s movement and the active involvement of civil society generated a lot of moral pressure on the Government which ultimately led to the passing of the Bill in 2013.

    Composition of Lokpal

    • The Lokpal is no ordinary investigative body.
    • It is headed by the incumbent Chief Justice of India or a retired judge.
    • It has eight members, four of whom are judicial members.
    • Thus the whole system is studded with judges or judicial men.
    • The Lokpal has an inquiry wing and a prosecution wing to deal with investigation and prosecution, respectively.
    • The director of prosecution files the case in the special court based on the findings of the Lokpal.

    Who falls under the ambit of Lokpal?

    • The Lokpal has jurisdiction to inquire into allegations of corruption against the Prime Minister, Ministers, Members of Parliament, Group A, B, C and D officers and officials of the central government.
    • After the conclusion of the investigation, the Lokpal may file a case in the special court in case the findings disclose the commission of offence under the Prevention of Corruption Act by the PM, Ministers or MPs.
    • However, the Lokpal does not have the power to ask the President to remove the Prime Minister or a Minister from office.

    What about the states?

    • The Lokpal and Lokayukta Act delegates the power to States to establish by law the Lokayukta to deal with complaints relating to corruption against public functionaries.
    • Some States already have established Lokayuktas. For example, Maharashtra in 1971, and Kerala in 1999.

    What is the Keralan controversy?

    • In order to get a clearer perspective on the Kerala Lokayukta controversy, it is necessary to understand the scheme of the Lokpal and Lokayuktas Act enacted by Parliament.
    • The long title of the Act says: “An Act to provide for the establishment of a body of Lokpal for the Union and Lokayukta for States to inquire into allegations of corruption against certain public functionaries….”
    • Thus, the Lokpal is conceived of as a body which will inquire into allegations of corruption.
    • It is basically an investigative body whose task is to conduct prompt and fair investigation and the prosecution of cases of corruption.

    Issues with the Amendment

    • The amendments were related to the competent authority to consider Lok Ayukta recommendations.
    • In the case of any unfavourable decision from the Lok Ayukta against the CM, the competent authority will now be the Legislative Assembly instead of the Governor as is prescribed in the existing Act.
    • The amendment tries to take away at the powers of the Governor.
    • The Lokayukta has indirectly expressed its resentment over the attempt to take away some of its powers.

    Arguments by Kerala Government

    • The Government, on the other hand, claims that through the amendment, a provision in the original Act which is unconstitutional has been excised.
    • Earlier it gave power to the Lokayukta to give directions to the Governor to remove a CM or a Minister on being found guilty of corruption.
    • This meant that the Lokayukta was to be over and above the office of Governor.

    Legal and constitutional implications

    Two important points need to be made here:

    (A) Overpowering the Lokpal

    • One, an investigative body does not have the legal authority to direct the public servant to resign his post on the basis of its findings.
    • It can only submit its findings to the competent authority or, as is provided in the Lokpal Act, file a case in the special court.
    • The Lokayukta is basically an investigative body with certain powers to carry out an investigation into cases relating to the Prevention of Corruption Act.
    • The only special feature of this body is that it is headed by a retired judge of the Supreme Court or a retired Chief Justice of a High Court.
    • But that does not alter the basic character of the Lokayukta as an investigative body.

    (B) Compulsion on Governor

    • The Chief Minister or a Minister holds office during the pleasure of the Governor (Article 164).
    • The Constitution of India does not contemplate any external pressure on the Governor to withdraw his pleasure.
    • The Sarkaria Commission had suggested that the Governor can dismiss a Chief Minister only when he loses his majority in the Assembly and refuses to step down.
    • The Supreme Court has accepted this recommendation of the Sarkaria Commission.
    • Another occasion when the Governor could withdraw his pleasure is on account of CM having been convicted in a criminal case and sentenced to not less than two years of imprisonment.
    • In other words, a Chief Minister cannot be asked to resign when he enjoys a majority in the House.
    • The Governor, being a high constitutional authority, cannot be compelled by a law to act in a particular manner so far as his constitutional duties and functions are concerned.

    Other contentious provisions

    (1) Undue burden on Political Parties

    • There are some other provisions as well which may not stand legal scrutiny.
    • For example, this law includes the office bearers of political parties within its definition of ‘public servant’.
    • Basically, the Prevention of Corruption Act deals with corruption in the government and allied agencies, statutory bodies, elected bodies, etc.
    • The functionaries of political parties do not come within the mischief of this law. So, it is difficult to understand how they can be brought within the sweep of the Lokayukta Act.

    (2) Reports of Lokayukta

    • Another problematic provision in this law is the one which deals with the reports of Lokayukta (Section 12).
    • It says that the Lokayukta shall, on the allegation of corruption being substantiated, send the findings along with recommendation of action to the competent authority who is required to take action as recommended by the Lokayukta.
    • It further says that if the Lokayukta is satisfied by the action taken by the competent authority, he shall close the case.
    • The question is how the Lokayukta can close a corruption case which is a criminal case and which invites imprisonment for three to seven years.
    • The Lokpal files the case in the court after the investigation. There is no provision in the central law under which the Lokpal can close the case before it reaches the court.
    • The Lokayukta not being a court does not have the legal capacity to close the corruption case under any circumstances.

    Way forward

    • The Kerala Lokayukta Act should be re-examined by a committee of the Assembly and should be brought on a par with the Lokpal Act.
    • Legislation that seeks to punish corrupt functionaries should be placed above controversies.

    Back2Basics: Lokpal Movement

    • The Lokpal, the apex body to inquire and investigate graft complaints against public functionaries, came into being with the appointment of its chairperson and members in March 2019.
    • In March 2019, former SC judge Justice Pinaki Chandra Ghose was selected as the first head of the Lokpal.

    Lokpal and Lokayuktas Act, 2013

    • The Lokpal Act 2013 is anti-corruption legislation that seeks to provide for the establishment of the institution of Lokpal.
    • It seeks to inquire into allegations of corruption against certain important public functionaries including the PM, cabinet ministers, MPs, Group A officials of the Central Government, etc.
    • The Bill was introduced in the parliament following massive public protests led by anti-corruption crusader Anna Hazare and his associates.
    • The Bill is one of the most widely discussed and debated Bills in India in recent times.

    Its history

    • The term Lokpal was coined in 1963 by Laxmi Mall Singhvi, a member of parliament during a parliamentary debate about grievance mechanisms.
    • The Administrative Reforms Commission (ARC) headed by Morarji Desai submitted an interim report on “Problems of Redressal of Citizen’s Grievances” in 1966.
    • In this report, ARC recommended the creation of two special authorities designated as ‘Lokpal’ and ‘Lokayukta’ for a redress of citizens’ grievances.
    • Maharashtra was the first state to introduce Lokayukta through The Maharashtra Lokayukta and Upa-Lokayuktas Act in 1971.

     

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  • What is Floor Test?

    Bihar Chief Minister has won the floor test in the Assembly.

    What is a floor test?

    • A floor test is a measure to check whether the executive is enjoying the confidence of the legislature.
    • It is a constitutional mechanism under which a Chief Minister appointed by the Governor can be asked to prove majority on the floor of the Legislative Assembly of the state.

    How is it conducted?

    • As per the Constitution, the Chief Minister is appointed by the Governor of the state.
    • When a single party secures the majority of the seats in the house, the Governor appoints the leader of the party as the Chief Minister.
    • In case the majority is questioned, the leader of the party which claims majority has to move a vote of confidence and prove majority among those present and voting.
    • The Chief Minister has to resign if they fail to prove their majority in the house.
    • This happens both in the parliament and the state legislative assemblies.
    • In situations when there are differences within a coalition government, the Governor can ask the Chief Minister to prove majority in the house.

    Can a floor test be postponed?

    • The Supreme Court recently had given some respite to some rebel leaders in Maharashtra to respond to the disqualification notice issued by the Speaker.
    • Citing this as the reason, the original party leaders and loyalists have stated that it is ‘unlawful’ to initiate a floor test when the disqualification decision of the rebel leaders is pending.
    • However, the previous judgments of the Supreme Court had ruled that the floor test needs not to be deferred even if the decision to disqualify the members is pending.
    • In the 2020 Shivraj Singh Chouhan v/s Speaker case, the court had clarified the same.
    • Additionally, the top court had allowed the rebel leaders to skip the floor test during the political crisis in Karnataka in 2019.

    What is composite floor test?

    • There is another test, Composite Floor Test, which is conducted only when more than one person stakes claim to form the government.
    • When the majority is not clear, the governor might call for a special session to see who has the majority.
    • The majority is counted based on those present and voting. This can also be done through a voice vote where the member can respond orally or through division voting.
    • Some legislators may be absent or choose not to vote.
    • In division vote, voting can be done through electronic gadgets, ballots or slips.
    • The person who has the majority will form the government. In case of tie, the speaker can also cast his vote.

    Governors’ discretion

    • When no party gets a clear majority, the governor can use his discretion in the selection of chief ministerial candidate to prove the majority as soon as possible.

    Issues with the floor test

    • Sometimes ruling party MLAs are lured with rewards, political or otherwise.
    • Thus, the “floor test” becomes constitutionally immoral and unjust.
    • This will amount to circumventing the Tenth Schedule through engineered defections through the judicial process.

    Back2Basics: No Confidence Motion

    • The process is explained under rule 198 of the Lok Sabha.
    • Though there is no mention of the term ‘No confidence motion’ or ‘floor test’ in the Constitution, Articles 75 and 164 do mention that the executive both at the Centre and state is collectively responsible to their respective legislatures.
    • Any member from the Opposition can move the no-confidence motion against the ruling government.
    • The motion has to receive the backing of at least 50 members before it is accepted and subsequently.
    • A date for the discussion of the motion is announced by the Speaker, which has to be within 10 days from the date of acceptance.

     

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  • Disruptions in Parliament

    Context

    The inability of Parliament to transact any business and the lack of serious deliberation must be a matter of grave concern for all.

    Purpose of deliberative democracy

    • In a deliberative democracy, Parliament works as a special purpose vehicle for the legislative scrutiny of bills, grievance redressal and debate on policies and related governance issues.
    • Its failure to transact business is a sad commentary on three aspects — Members of Parliament, the presiding officers as well as the rules and regulations that define the functioning of both Houses.

    How disruption affects Member of Parliaments

    • For any parliamentarian, it is extremely disappointing to be unable to speak in the House for which he or she has — in most cases —given notice and come prepared.
    • And when this happens too often, their enthusiasm decreases.
    • Impact on quality of debate: In such a situation, members are often tempted to make a popular intervention than a substantive one.
    • This certainly impacts the quality of debates negatively.

    Challenges for presiding officer

    • For the presiding officers too, preventing disruptions is a serious challenge.
    • Perhaps presiding officers can emulate the courts of law.
    • Use of in-camera proceedings: Like in courts, the presiding officers  need to consider conducting in-camera proceedings in their chambers to insulate at least the Zero Hour and Question Hour from getting washed out.
    • While the House remains force-adjourned, presiding officers can order in-camera hearing of questions of MPs and replies of ministers.
    • Zero Hour submissions could also be dealt with similarly.
    • Some tweaking of existing rules and regulations may facilitate this.

    Issues with media coverage of Parliamentary proceedings

    • In any polity, systems work effectively when wrongdoers are punished and rule-abiding people are rewarded.
    •  What happens currently is exactly the opposite, especially in the context of coverage of parliamentary proceedings in mainstream media.
    •  The space allocated for parliamentary proceedings in both, print and electronic media is shrinking fast.
    • Rarely does one finds adequate coverage of Question Hour or Zero Hour compared to the past.
    • Debates on bills are also subject to brief and sketchy reporting.
    • Although disruptions have become common, they continue to get reported without fail and disruptors often bask in the media limelight.
    • As against this, those who make a reasonably good speech — well argued and supported by statistics, examples or case studies — rarely get adequate attention.
    • This too hampers the interest of parliamentarians.
    • It is high time we rise above the temptations of this tendency and think seriously about systemic reforms.

    Conclusion

    As the Parliament of independent India enters the eighth decade of its history and prepares to enter a new, more well-equipped and modern Parliament House, it is the right time to think about how we can add value to our deliberative democracy.

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  • Kerala tops in holding Assembly sittings in 2021

    Kerala, which slipped to the eighth slot in holding Assembly sittings during the first wave of the COVID-19 pandemic in 2020, returned to the top spot in 2021, with its House sitting for 61 days, the highest in the country.

    State Assemblies for 2021 Report

    • The report on the functioning of State Assemblies for 2021 is published by the PRS Legislative Research (PRS), a New Delhi-based think tank.

    How did other states fare?

    • Odisha followed Kerala with 43 sitting days; Karnataka 40, and Tamil Nadu 34 days.
    • But for the top three States, the average number of sittings of State legislatures would have been far lower than the present figure of 21 days.
    • Of the 28 State Assemblies and one Union Territory’s legislature, 17 met for less than 20 days.
    • Of them, five — Andhra Pradesh, Nagaland, Sikkim, Tripura and Delhi — met for less than 10 days.
    • The figures for Uttar Pradesh, Manipur and Punjab were 17, 16 and 11, respectively.
    • Andhra Pradesh with 20 ordinances and Maharashtra with 15 followed Kerala.

    Why is this ranking significant?

    • The National Commission to Review the Working of the Constitution (2000-02), headed by former Chief Justice of India M.N. Venkatachaliah, had prescribed the standards for working of legislatures.
    • The Houses of State (/Union Territory) legislatures with less than 70 members, for example, Puducherry, should meet for at least 50 days a year and other Houses (Tamil Nadu), at least 90 days.
    • The Presiding Officers’ conference, held in Gandhinagar in January 2016, suggested State legislatures hold a minimum of 60 days of sittings in a year.
    • Between 2016 and 2021, the PRS points out, 23 State Assemblies met for an average of 25 days.
    • As for the ordinance route, which should be, according to the Supreme Court, used under exceptional circumstances, 21 out of 28 States promulgated ordinances last year.

     

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  • Money Bill verdict holds the key: SC

    The court has left it open for a seven-judge Bench to decide whether the amendments to the PMLA could have been made to the PMLA through the Money Bill route.

    What was the case about Money Bill?

    • In November 2019, a five-judge Bench led by then CJI Ranjan Gogoi had referred to a larger Bench the issue and question posed in the Roger Mathew vs South Indian Bank Ltd. Case.
    • It inquired to whether amendments like these can be passed as a Money Bill in violation of Article 110 of the Constitution.
    • The petitioners had questioned the legality of the PMLA amendments which were introduced via Finance Acts/Money Bills.

    Correlation Money Bill

    • A Money Bill is deemed to contain only provisions dealing with all or any of the matters under clauses (a) to (g) of Article 110(1), largely including the appropriation of money from the Consolidated Fund of India and taxation.
    • In other words, a Money Bill is restricted only to the specified matters and cannot include within its ambit any other matter.

    What is a Money Bill?

    • A money bill is defined by Article 110 of the Constitution, as a draft law that contains only provisions that deal with all or any of the matters listed therein.
    • These comprise a set of seven features, broadly including items such as-
    1. Imposition, abolition, remission, alteration or regulation of any tax
    2. Regulation of the borrowing of money by the GOI
    3. Custody of the Consolidated Fund of India (CFI) or the Contingency Fund of India, the payment of money into or the withdrawal of money from any such fund
    4. Appropriation of money out of the CFI
    5. Declaration of any expenditure charged on the CFI or increasing the amount of any such expenditure
    6. Receipt of money on account of the CFI or the public account of India or the custody or issue of such money, or the audit of the accounts of the Union or of a state
    7. Any matter incidental to any of the matters specified above.

    Who controls such bills?

    • In the event proposed legislation contains other features, ones that are not merely incidental to the items specifically outlined, such a draft law cannot be classified as a money bill.
    • Article 110 further clarifies that in cases where a dispute arises over whether a bill is a money bill or not, the Lok Sabha Speaker’s decision on the issue shall be considered final.

    Difference between money and finance bill

    • While all Money Bills are Financial Bills, all Financial Bills are not Money Bills.
    • For example, the Finance Bill which only contains provisions related to tax proposals would be a Money Bill.
    • However, a Bill that contains some provisions related to taxation or expenditure, but also covers other matters would be considered a Financial Bill.
    • Again, the procedure for the passage of the two bills varies significantly.

    Issues with notifying a bill as Money Bill

    • The Rajya Sabha (where the ruling party might not have the majority) has no power to reject or amend a Money Bill.
    • However, a Financial Bill must be passed by both Houses of Parliament.
    • The Speaker (nonetheless, a member of the ruling party) certifies a Bill as a Money Bill, and the Speaker’s decision is final.
    • Also, the Constitution states that parliamentary proceedings, as well as officers responsible for the conduct of business (such as the Speaker), may not be questioned by any Court.

     

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  • Important role of vigilant Opposition in democracy

    Context

    Role of Opposition in indispensable in the democracy.

    Reasons for adopting parliamentary democracy

    • The Indian Constitution adopted the parliamentary system and not the presidential system.
    • B.R. Ambedkar provided the rationale for this: “A democratic executive must satisfy two conditions –
    • (1) It must be a stable executive and
    • (2) it must be a responsible executive.
    • Unfortunately it has not been possible so far to devise a system which can ensure both in equal degree.
    • Assessment of executive: In England, where the parliamentary system prevails, the assessment of responsibility of the executive is both daily and periodic.
    • Daily assessment: The daily assessment is done by members of Parliament, through questions, resolutions, no-confidence motions, adjournment motions and debates on addresses.
    • Periodic assessment: Periodic assessment is done by the electorate at the time of the election.
    • The daily assessment of responsibility which is not available under the American system it is felt far more effective than the periodic assessment and far more necessary in India.

    Role of Opposition in democracy

    • Democracy is the basic feature of the Constitution.
    • The presence of a vigilant Opposition is necessary not just for a vibrant democracy but for its very survival.
    • When the Opposition criticises the government or carries on an agitation to arouse public opinion against a party’s misdeeds, it is performing a duty that is assigned by the Constitution.
    • Without an effective Opposition, democracy will become dull and legislature will become submissive.

    Significance of anti-defection law

    • Encouraging defections from the parties in power in States will sound the death knell for democracy.
    • The Tenth Schedule has failed to serve its purpose.
    • The Supreme Court, in Kihoto Hollohan v. Zachillhu (1992), while upholding the 52nd Amendment said that: “On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behaviour conspicuous by their utter and total disregard of well recognised political proprieties and morality… On the other hand, there are… certain side-effects which might affect and hurt even honest dissenters and conscientious objectors.”
    • In upholding the law, the court held: “But a political party functions on the strength of shared beliefs… Any freedom of its members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it.”
    • What is whip? The whip system is part of the established machinery of political organisation in the House and does not infringe on a member’s rights or privilege in any way.
    • Some political thinkers have recognised as an additional device the ‘theory of recall,’ so that a member whose personal behaviour falls below standards expected of his constituents goes back and seek their approval.
    • This power is particularly apt when a member shows disloyalty to his party but declines to resign from his seat and to fight an immediate by-election.
    • The anti-defection law was supposed to be the justification underlying the power of recall.

    Way forward

    • Political parties, the judiciary and civil society must take steps to ensure that democracy does not fail.
    • The Opposition must be tolerated because if it is left for the party in power to decide what is healthy and unhealthy criticism, then every criticism of the latter will be treated as unhealthy.
    • while the Opposition must be credible and strong, it is for the Opposition to make itself credible and strong. It must feel the pulse of the people.
    • Unless it makes itself respectable, it cannot demand any respect. This is the biggest challenge facing the nation today.

    Conclusion

    The Opposition must also work constructively. Our constitutional goal was to establish a sovereign, democratic republic.

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