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GS Paper: Parliament & State Legislatures

  • What is Adjournment Motion?

    Ahead of the Monsoon session of Parliament, a political party from Punjab has decided to move an adjournment motion in the Lok Sabha against the government on the three controversial farm laws.

    Revise all the devices of parliamentary proceedings from your Polity Book.

    Recalling the three laws

    1. Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020
    2. Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Act, 2020
    3. Essential Commodities (Amendment) Act, 2020

    [Burning Issue] Agricultural Reform Bills, 2020

    What is Adjournment Motion?

    • Adjournment motion is aimed to draw the attention of the House to a recent matter of urgent public importance having serious consequences.
    • The matter proposed to be raised should be of such a character that something very grave which affects the whole country and its security has happened.
    • The House is required to pay its attention immediately by interrupting the normal business of the House.
    • It can introduce only in the Lok Sabha.
    • It involves an element of censure against the government, therefore Rajya Sabha is not permitted to make use of this device.
    • In the event of an adjournment motion being adopted, the House automatically stands adjourned.

    How it is held?

    • It is regarded as an extraordinary device as it interrupts the normal business of the House.
    • It needs the support of 50 members to be admitted.
    • The notice of an adjournment motion is required to be given on the prescribed form.
    • A member can give not more than one notice for any one sitting.
    • The discussion on this motion should last for not less than two hours and thirty minutes.

    Restrictions to the motion

    The right to move a motion for an adjournment of the business of the House is subject to the following restrictions. It should:

    • Not raise a question of privilege.
    • Not revive discussion on a matter that has been discussed in the same session.
    • Not deal with any matter that is under adjudication of court.
    • Not raise any question that can be raised on a distinct motion.

    Answer this PYQ in the comment box:

    Q.The Parliament of India exercises control over the functions of the Council of Ministers through:

    1. Adjournment motion
    2. Question hour
    3. Supplementary questions

    Select the correct answer using the code given below: (CSP 2017)

    (a) 1 only

    (b) 2 and 3 only

    (c) 1 and 3 only

    (d) 2 and 3 only

  • Election of Speaker and Deputy Speaker

    The Maharashtra Legislative Assembly has been without a Speaker for most of this year.

    Election of Speakers

    • The Constitution specifies offices like those of the President, Vice President, Chief Justice of India, and Comptroller and Auditor General of India, as well as Speakers and Deputy Speakers.
    • Article 93 for Lok Sabha and Article 178 for state Assemblies state that these Houses “shall, as soon as may be”, choose two of its members to be Speaker and Deputy Speaker.
    • In Lok Sabha and state legislatures, the President/Governor sets a date for the election of the Speaker.
    • It is the Speaker who decides the date for the election of the Deputy Speaker.
    • The legislators of the respective Houses vote to elect one among themselves to these offices.
    • The Constitution provides that the office of the Speaker should never be empty.
    • So, he/she continues in office until the beginning of the next House, except in the event of death or resignation.

    Ruling party or Opposition?

    • Usually, the Speaker comes from the ruling party.
    • In the case of the Deputy Speaker of Lok Sabha, the position has varied over the years.
    • Until the fourth Lok Sabha, the Congress held both the Speaker and Deputy Speakers positions.
    • In the fifth Lok Sabha, whose term was extended due to the Emergency, an independent member, Shri G G Swell, was elected the Deputy Speaker.
    • The tradition for the post of the Deputy Speaker going to the Opposition party started during the term of Prime Minister Morarji Desai’s government.
    • The first time the Deputy Speaker’s position went to the opposition was during the term of Prime Minister P V Narasimha Rao.

    Their roles

    • According to the book Practice and Procedure of Parliament, published by the Lok Sabha Secretariat, the Speaker is “the principal spokesman of the House, he represents its collective voice and is its sole representative to the outside world”.
    • The Speaker presides over the House proceedings and joint sittings of the two Houses of Parliament.
    • It is the Speaker’s decision that determines whether a Bill is a Money Bill and therefore outside of the purview of the other House.
    • The Deputy Speaker is independent of the Speaker, not subordinate to him, as both are elected from among the members of the House.

    Why need Dy Speaker?

    • The Deputy Speaker ensures the continuity of the Speakers office by acting as the Speaker when the office becomes vacant.
    • In addition, when a resolution for removal of the Speaker is up for discussion, the Constitution specifies that the Deputy Speaker presides over the proceedings of the House.

    Issue over time limit for election

    • The Constitution neither sets a time limit nor specifies the process for these elections.
    • It leaves it to the legislatures to decide how to hold these elections.
    • Haryana and Uttar Pradesh specify a time frame for holding the election to the Speaker and Deputy Speaker’s offices.
    • In Haryana, the election of the Speaker has to take place as soon as possible after the election.
    • Uttar Pradesh has a 15-day limit for an election to the Speaker’s post if it falls vacant during the term of the Assembly.

    Answer this PYQ in the comment box:

    Q.Consider the following statements:

    1. The Speakers of the Legislative Assembly shall vacate his/her office if he/she ceases to be a member of the Assembly
    2. Whenever the legislative assembly is dissolved, the speaker shall vacate his/her office immediately.

    Which of the statements given above is/are correct? (CSP 2013)

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

  • West Bengal to set up Legislative Council

    The West Bengal Assembly has passed a resolution to set up Legislative Council with a two-thirds majority.

    What is a State Legislative Council?

    • The SLC is the upper house in those states of India that have a bicameral state legislature; the lower house being the State Legislative Assembly.
    • As of Jan 2020, 6 out of 28 states have a State Legislative Council. These are Andhra Pradesh, Karnataka, Telangana, Maharashtra, Bihar, and Uttar Pradesh The latest state to have a council is Telangana.

    Why need another house?

    • The Legislative Council has three main functions: to represent the people, to legislate and to scrutinise the executive government as a ‘House of review’.
    • The Legislative Council provides an alternative and complementary system of representation to that of the Legislative Assembly.

    Creation and abolition

    • According to Article 169, the Parliament can create or abolish the SLC of a state if that state’s legislature passes a resolution for that with a special majority.
    • The existence of an SLC has proven politically controversial.
    • A number of states that have had their LCs abolished have subsequently requested its re-establishment; conversely, proposals for the re-establishment of the LC for a state have also met with opposition.

    Its composition

    • The size of the SLC cannot be more than one-third of the membership of the State Legislative Assembly.
    • However, its size cannot be less than 40 members.
    • These members elect the Chairman and Deputy Chairman from the Council.

    MLCs are chosen in the following manner:

    • One third are elected by the members of local bodies such as municipalities, gram panchayats, Panchayat samitis and district councils.
    • One third are elected by the members of the Legislative Assembly of the State from among the persons who are not members of the State Legislative Assembly.
    • One sixth are nominated by the Governor from persons having knowledge or practical experience in fields such as literature, science, arts, the co-operative movement and social services.
    • One twelfth are elected by graduates of three years’ standing residing in that state.
    • One twelfth are elected by teachers who had spent at least three years in teaching in educational institutions within the state not lower than secondary schools, including colleges and universities.

    Answer this PYQ in the comment box:

    Q.Consider the following statements:

    1. The Legislative Council of a State in India can be larger in size than half of the Legislative Assembly of that particular State.
    2. The Governor of a State nominates the Chairman of Legislative Council of that particular State.

    Which of the statements given above is/are correct?

    (a) Only 1

    (b) Only 2

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    Powers and functions

    • The Constitution of India gives limited power to the State Legislative Council.
    • The State Legislative Council can neither form nor dissolve a state government.
    • The State Legislative Council also have no role in the passing of money bills.
    • But some of the powers it has is that the Chairman and Deputy Chairman of the State Legislative Council enjoy the same status as Cabinet Ministers in the state.

    Issues with LC

    • It was argued that a second House can help check hasty actions by the directly elected House, and also enable non-elected persons to contribute to the legislative process.
    • However, it was also felt that some of the poorer states could ill afford the extravagance of two Houses.
    • It has been pointed out that the Councils can be used to delay important legislation and to park leaders who have not been able to win an election.

  • Significance of recent judgments in UAPA cases

    Recent judgements involving UAPA highlights the issues with certain provisions resulting in long years of undertrial imprisonment.

    Context

    In the past week, three seminal judgments involving the Unlawful Activities (Prevention) Act, 1967 (UAPA) have been delivered. While these judgments are welcome developments, they also remind us that thousands continue to languish under the UAPA regime.

    Issues with the provisions of UAPA

    • Originally enacted in 1967, the UAPA was amended to be modelled as an anti-terror law in 2004 and 2008.
    • The period of detention is increased, enlarging the period of custody prior to which default bail cannot be granted.
    • Regular bail is subject to the satisfaction of the judge that no prima facie case exists.
    • Bail apart, the dilatory trial procedures ensure lengthy periods of pre-trial incarceration for the accused who are presumed guilty of heinous terror crimes.

    NCRB data reveal long years of undertrial imprisonment

    • As per the National Crime Records Bureau (NCRB) data, a total of 4,231 FIRs were filed under various sections of the UAPA between 2016 and 2019.
    •  While the number of acquittals is low,  the real picture emerges in the pendency rates.
    • The pendency rate at the level of police investigation is very high, at an average of 83 per cent.
    • This denotes that chargesheets are filed by the police on an average in about 17 per cent of the total cases taken up for investigation.
    • The rate of pendency at the level of trial is at an average of 95.5 per cent.
    • This indicates that trials are completed every year in less than 5 per cent cases.

    What did the courts say in various judgements?

    • The Supreme Court, in Union of India v K A Najeeb, held that despite restrictions on bail under the UAPA, constitutional courts can still grant bail on the grounds that the fundamental rights of the accused have been violated.
    • In Asif Iqbal Tanha v State of NCT of Delhi, the Delhi High Court took this reasoning a step further, holding that it would not be desirable for courts to wait till the accused’s rights to a speedy trial are entirely vitiated before they are set at liberty.
    • Courts should exercise foresight, and in cases with hundreds of prosecution witnesses where a trial will not see a conclusion for years to come, courts should apply the principles laid down in Najeeb.

    Way forward

    •  Even within the constraints of the UAPA, much can be achieved if a responsive and independent judiciary follows the basic principles of natural justice and due process.
    • But access to the judiciary remains limited for most of the thousands incarcerated under this widely-used law.

    Conclusion

    The governments need to consider the issue of pendency of cases under UAPA and take steps to address the issues by either repealing certain provisions or ensuring speedy trials.

  • Annual Review of State Laws Report, 2020

    The COVID-19 pandemic and the consequent lockdown had a huge impact on the working of the state legislatures in India.  The PRS Legislative Research’s “Annual review of state laws 2020” shows that the productivity and efficacy of State legislatures are poor.

    Annual Review of State Laws

    • This report focuses on the legislative work performed by states in the calendar year 2020.
    • It is based on data compiled from state legislature websites and state gazettes.
    • It covers 19 state legislatures, including the union territory of Delhi, which together accounts for 90% of the population of the country.

    Highlights of the report

    (1) Sittings of states

    • Compared with its average number of sitting days of 32 from 2016 to 2019, the Karnataka legislature, which is bicameral, met on 31 days last year, the highest for any State in 2020.
    • The southern State was followed by Rajasthan (29 days) and Himachal Pradesh (25 days). For comparison, Parliament met for 33 days last year.
    • In 2020, the average number of sitting days for the 19 States was 18, which was 11 less than the four-year (2016-19) average of 29.
    • Kerala, which had the distinction of remaining at the top in the four years with an average of 53 days, had only 20 days of sittings of the legislature last year.

    (2) Number of bills

    • As for the number of Bills passed last year, Karnataka again topped the list with 61 Bills, followed by Tamil Nadu (42) and Uttar Pradesh (37). For this purpose, Appropriation Bills were excluded.
    • Among poor performers under this category, Delhi passed only one Bill; West Bengal passed two Bills and Kerala three Bills.

    (3) Time taken for passing bills

    • On the duration of time taken to pass Bills, the previous year saw 59% of the Bills being passed by the legislature of the States on the day of introduction.
    • A further 14% was adopted within a day of being introduced.
    • Only 9% of the Bills were passed more than five days after introduction, some of which were referred to committees for further examination.

  • What is Breach of Privilege motion?

    An MP has filed a breach of privilege motion against the Lakshadweep Administrator for denying him permission to visit the islands, preventing him from meeting his cadre and people of the island.

    Breach of Privilege

    • The powers, privileges and immunities of either House of the Indian Parliament and of its Members and committees are laid down in Article 105 of the Constitution.
    • Article 194 deals with the powers, privileges and immunities of the State Legislatures, their Members and their committees.
    • Parliamentary privilege refers to the right and immunity enjoyed by legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties.

    Answer this PYQ in the comment box:

    Q.With reference to the Parliament of India, which of the following Parliamentary Committees scrutinizes and reports to the House whether the powers to make regulations, rules, sub-rules, by-laws etc. conferred by the constitution of delegated by the Parliament are being properly exercised by the Executive within the scope of such delegation?

    (a) Committee on Government Assurances

    (b) Committee on Subordinate Legislation

    (c) Rules Committee

    (d) Business Advisory Committee

    What constitutes a breach of this privilege?

    • While the Constitution has accorded special privileges and powers to parliamentarians and legislators to maintain the dignity and authority of the Houses, these powers and privileges are not codified.
    • Thus, there are no clear, notified rules to decide what constitutes a breach of privilege, and the punishment it attracts.
    • Any act that obstructs or impedes either House of the state legislature in performing its functions, or which obstructs or impedes any Member or Officer of such House in the discharge of his duty, or has a tendency, directly or indirectly, to produce such results is treated as a breach of privilege.
    • It is a breach of privilege and contempt to print or publish libel reflecting on the character or proceedings of the House or its Committees or on any member of the House for or relating to his character or conduct as a legislator.

    Procedure followed in cases of an alleged breach

    • The Legislative Assembly Speaker or Legislative Council Chairman constitutes a Privileges Committee consisting of 15 members in the Assembly and 11 members in the Council.
    • The members to the committee which has quasi-judicial powers are nominated based on the party strength in the Houses.
    • The Speaker or Chairman first decides on the motions.
    • If the privilege and contempt are found prima facie, then the Speaker or Chairman will forward it to the Privileges Committee by following the due procedure.
    • At present, there is no Privileges Committee in either House of the state legislature.
    • The Committee will seek an explanation from all the concerned, will conduct an inquiry and will make a recommendation based on the findings to the state legislature for its consideration.

  • Holding states to account

    The article highlights the excessive focus on the Union government and the lack of scrutiny of the functioning of the States in various areas.

    Need for focus on the States

    • In discussions on reforms or debates about public expenditure, there is an excessive focus on the Union government.
    • This focus reflects our mindset that there is a “Centre”, though constitutionally, there is no “Centre”. There is the Union government.
    • There is not as much interest in State Finance Commissions and their recommendations as it is in the Union Finance Commission’s recommendations.
    • Alternatively, there is limited scrutiny of state-level expenditure, or fiscal devolution and decentralisation of decision-making within states, or tracking functioning of state legislatures.
    • Most factor markets we seek to reform are on the concurrent list or the state list.

    The Annual Review of State Laws 2020: Key findings

    • PRS Legislative Research published this report and it focuses on the legislative work performed by states in the calendar year 2020.
    • The annual review has been done in the pandemic year as 2020 saw the first wave of the pandemic.
    • It covers 19 state legislatures, including the Union territory of Delhi, which together accounts for 90 per cent of the population of the country.

    1) Low Productivity

    • As a benchmark, the Parliament met for 33 days in 2020.
    • Pre-2020, these 19 states met for an average of 29 days a year.
    • In 2020, they met for an average of 18 days.
    • When they met in 2020, States passed an average of 22 Bills (excluding Appropriation Bills).
    • Karnataka passed 61 Bills, the highest in the country.
    • The lowest was Delhi which passed one Bill, followed by West Bengal and Kerala, which passed two and three Bills respectively.

    2) States pass Bills without scrutiny

    • The report states that the State legislatures pass most Bills without detailed scrutiny.
    • In 2020, 59 per cent of the Bills were passed on the same day that they were introduced in the legislature.
    • A further 14 per cent were passed within a day of being introduced.
    • In Parliament, Bills are often referred to Parliamentary Standing Committees for detailed examination.
    • In most states, such committees are non-existent.

    3) Information not shared by the legislature

    • Information and data on state legislatures is not easily available.
    • While some state legislatures publish data on a regular basis, many do not have a systematic way of reporting legislative proceedings and business.”
    • Typically, information becomes available when countervailing pressure is generated.
    • Reports like this help to do that.

    Consider the question “In discussions on reforms, or debates about public expenditure, there is an excessive focus on the Union government. However, on reforms and public expenditures, we also need to focus on scrutinising the states”. Comment.

     

    Conclusion

    Scrutinising States on various areas of their functioning is important to hold them accountable. The availability of data from state legislatures is an opportunity to monitor them better.

     

  • West Bengal government to set up a Legislative Council

    The West Bengal government will set up a Legislative Council (Vidhan Parishad), as per a decision taken up at the Cabinet meeting chaired by its Chief Minister.

    What is a State Legislative Council?

    • The SLC is the upper house in those states of India that have a bicameral state legislature; the lower house being the State Legislative Assembly.
    • As of Jan 2020, 6 out of 28 states have a State Legislative Council. These are Andhra Pradesh, Karnataka, Telangana, Maharashtra, Bihar, and Uttar Pradesh The latest state to have a council is Telangana.

    Creation and abolition

    • According to Article 169, the Parliament can create or abolish the SLC of a state if that state’s legislature passes a resolution for that with a special majority.
    • The existence of an SLC has proven politically controversial.
    • A number of states that have had their LCs abolished have subsequently requested its re-establishment; conversely, proposals for the re-establishment of the LC for a state have also met with opposition.

    Its composition

    • The size of the SLC cannot be more than one-third of the membership of the State Legislative Assembly.
    • However, its size cannot be less than 40 members.
    • These members elect the Chairman and Deputy Chairman from the Council.

    MLCs are chosen in the following manner:

    • One third are elected by the members of local bodies such as municipalities, Gram panchayats, Panchayat samitis and district councils.
    • One third are elected by the members of Legislative Assembly of the State from among the persons who are not members of the State Legislative Assembly.
    • One sixth are nominated by the Governor from persons having knowledge or practical experience in fields such as literature, science, arts, the co-operative movement and social services.
    • One twelfth are elected by persons who are graduates of three years’ standing residing in that state.
    • One twelfth are elected by teachers who had spent at least three years in teaching in educational institutions within the state not lower than secondary schools, including colleges and universities.

    Answer this PYQ in the comment box:

    Q.Consider the following statements:

    1. The Legislative Council of a State in India can be larger in size than half of the Legislative Assembly of that particular State.
    2. The Governor of a State nominates the Chairman of Legislative Council of that particular State.

    Which of the statements given above is/are correct?

    (a) Only 1

    (b) Only 2

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    Powers and functions

    • The Constitution of India gives limited power to the State Legislative Council.
    • The State Legislative Council can neither form nor dissolve a state government.
    • The State Legislative Council also have no role in the passing of money bills.
    • But some of the powers it has is that the Chairman and Deputy Chairman of the State Legislative Council enjoy the same status as Cabinet Ministers in the state.

    Issues with LC

    • It was argued that a second House can help check hasty actions by the directly elected House, and also enable non-elected persons to contribute to the legislative process.
    • However, it was also felt that some of the poorer states could ill afford the extravagance of two Houses.
    • It has been pointed out that the Councils can be used to delay important legislation and to park leaders who have not been able to win an election.

  • No virtual meets of standing committees

    Confidential nature of meeting not possible in virtual meetings

    • Days after the Leader of Opposition in Rajya Sabha wrote to Chairman to allow virtual meetings of parliamentary standing committees, the Rajya Sabha Secretariat has turned down his plea.
    • Requests to allow virtual meetings of the standing committees were turned down last year as well by Rajya Sabha Chairman and Lok Sabha Speaker.
    • The request was turned down on grounds that virtual meetings would violate the confidential nature of such meetings and that any change to the norms require approval by Parliament.

    Matter referred to Committee on Rules

    • The letter by the Rajya Sabha Secretariat points out that the Chairman and Speaker had decided last year, during the first wave of the pandemic, to refer the issue of allowing virtual meetings of parliamentary panels to the Committee on Rules in both Houses.
    • The Committee on Rules, however, did not take up the matter for discussion since Committees started physical meetings as the lockdown restrictions gradually eased in the second half of last year.

  • Time to undo the RTE bias against private non-minority institutions

    The article highlights the issues with the exemption of aided and non-aided minority institutions from the Right to Education Act.

    Is RTE enforceable against individuals?

    • Most fundamental rights are enforceable against the state, not against private individuals.
    • Certain rights, however, are horizontally enforceable too, that is, they can be enforced against individuals.
    • The Right to Free and Compulsory Education Act or RTE falls in the latter category.
    • The right to education was initially mentioned in Article 45 as a part of the Directive Principles.

    Evolution of Article 21A

    • The Supreme Court in 1992 held in Mohini Jain v. State of Karnataka that the right to education was a part of the right to life recognised in Article 21.
    • The next year, the court in Unnikrishnan JP v. State of Andhra Pradesh held that the state was duty-bound to provide education to children up to the age of 14 within its economic capacity.
    • The court also acknowledged that private educational institutions, including minority institutions, would have to play a role alongside government schools.
    • The right to education was finally given the status of a fundamental right by the 86th constitutional amendment in the year 2002 by the addition of Article 21A in the Constitution.
    • The Supreme Court held in P. A. Inamdar case that there shall be no reservation in private institutions and that minority and non-minority institutions would not be treated differently.

    Impact of 93rd amendment

    • In 2005, the Constitution was amended by the 93rd amendment to include Clause(5) to Article 15 which dealt with the fundamental right against discrimination.
    • The clause permitted the state to provide for advancement of “backward” classes by ensuring their admission in institutions, including private institutions.
    • The clause, however, excluded both aided and unaided minority educational institutions thus overruling the Supreme Court’s judgment in P.A. Inamdar case.

    Discrimination in RTE

    • When the RTE Act was subsequently enacted in 2009, it did not directly discriminate between students studying in minority and non-minority institutions.
    • Subsequently, the provision of 25 per cent reservation in private institutions was however challenged in Society for Unaided Private Schools of Rajasthan v. Union of India where the court upheld the validity of the legislation exempting only unaided minority schools from its purview.
    • In response to the judgment, the RTE Act was amended in 2012 to mention that its provisions were subject to Articles 29 and 30 which protect the administrative rights of minority educational institutions.
    • So, the onus on private unaided schools was much higher than that on government schools, while even aided minority schools were exempt.
    • But the constitutional provision enabling the RTE Act, that is, Article 21, does not make any discrimination between minority and non-minority institutions.

    Issues

    • The above provisions of RTE made it violative of Article 14 and also economically unviable for many private schools.
    •  Not only has RTE unreasonably differentiated between minority and non-minority schools without any explicable basis, there is also no rational nexus between the object of universal education sought to be achieved by this act and the step of excluding minority schools from its purview.
    • Given the doctrine of harmonious construction of fundamental rights, it is unclear why the court granted complete immunity to minority institutions when several provisions of RTE would not interfere with their administrative rights.
    • RTE has provisions such as prevention of physical/mental cruelty towards students as well as quality checks on pedagogical and teacher standards which children studying in minority institutions should not be deprived of and to that extent be discriminated against.

    Way forward

    • The Kerala High Court held in Sobha George v. State of Kerala that Section 16 of RTE, which forbids non-promotion till the completion of elementary education, will be applicable to minority schools as well. 
    • The bench said that the courts must examine whether provisions such as Section 16 of RTE are statutory rights or fundamental rights expressed in a statutory form.
    • If the latter, then the Pramati case judgement will not be fully available to minority institutions.
    • The Supreme Court should take inspiration from the prudent decision delivered by the Kerala High Court and overrule its own judgment delivered in the Pramati Educational Society.

    Consider the question “What are the issues with the exemption of aided and non-aided minority institution from the RTE Act.”

    Conclusion

    RTE as legislation may be well-intentioned, but the time has come to relook at the discriminatory nature of RTE against private non-minority institutions, and to that extent, undo the damage done by 93rd Amendment and the subsequent SC judgments.