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GS Paper: Parliament & State Legislatures

  • Making the local governance strong

    The article analyses the issues faced by democracy in India and suggests the way out in the form of strong local governments.

    Issues being faced by Indian democracy

    1. Issue of use of money power

    • Around the world, electoral democracies face the issues of funding political parties and elections.
    • Money is required to win elections legitimately, even when people are not bribed to vote, which is illegitimate.
    • Communications with citizens can be very expensive.
    • Advertisements have to be paid for as well as teams of professionals for managing social media.
    • The race to raise more money for legitimate electioneering purposes can corrupt the process of funding parties and elections.
    • Solutions are not easy because the right to free speech cannot be denied.

    2.Issues with deliberations by the representatives

    • Debates within India’s Parliament hardly inspire citizens’ confidence in their representatives’ ability to govern the country.
    • The problem in electoral democracies is also in the conduct of their deliberations when they come together.
    • This problem is not due to the quality of the individuals, it is inherent in the design of the process for electing representatives.
    • Representatives of the people must be chosen by smaller electorates within geographical constituencies.
    • But when they meet together in the national chamber, they are expected to govern the whole country.
    • They must shed the interest of their constituency and consider what will be best for the whole country.
    • Constituency favouring leads to challenges for equitable solutions for sharing of river waters, and to railway stations.
    • Electing good representatives to Assemblies is not enough to ensure good decisions will be made.

    3.Role of political parties: Lack of inner democracies

    • Function of parties: Political parties in electoral democracies provide a solution to the problem of creating an alignment of views among representatives from hundreds of constituencies around the country.
    • A party’s point of view on fundamental matters can unite many.
    •  However, when there are too many parties and too many contradictory points of view to be accommodated within a coalition, governance can break down.
    • Therefore, political parties are not evil.
    • However, when political parties are not internally democratic, they become a source to amass power and wealth, and democratic nations suffer.

    So, should we adopt direct form of democracy

    • For the reason stated above, it has become very difficult in representative democracies to arrive at good and fair decisions for the governance of a large state or country.
    • New Internet technologies make adoption of direct form of democracy possible.
    • But, if all voters have not understood what is at stake, they cannot decide well this is what happened in hasty Brexit referendum.

    Way Forward

    1.Need for the strong local governance

    • Complex issues, where many interests collide, must be resolved by reason, not settled by the numbers.
    •  Hence there is no alternative to good local governance, wherein citizens manage their local affairs democratically.
    • One-size solutions devised by experts at the centre cannot fit all.
    • Local systems solutions are essential to solve global systemic problems of environmental sustainability and inclusive growth.

    2.Funding and Intra-Party Democracy related reforms

    • Electoral funding must be cleaned up, and democracy within political parties improved to make representative democracy work better.
    • This will require big changes to entrenched systems.
    • Citizens must appreciate that they have to be the source of solutions, and not become only the source of problems.
    • Citizens must learn to listen to each other’s perspectives in their villages and in their urban neighbourhoods.

    What are the challenges the electoral process in India faces? Suggest the solution to the issues democracy in India faces.

    Conclusion

    Since India’s Independence 73 years ago when the power of government was transferred from a centre in London to a centre in Delhi, strong local governance remains the unfinished agenda to make India’s democracy strong and deep.

  • Scrutinising government’s work in limited monsoon session

    The article analyses the impact of pandemic on the functioning legislatures and issues its implications.

    Context

    • Due to coronavirus pandemic, several States have held very short sessions in which they ratified a number of ordinances and hardly questioned any executive action over the last few months.

    Role of Parliament and Court

    • The government has the mandate to take decisions and perform various public tasks.
    • Government in turn is accountable to the legislature which can question it, and, as an extreme step, even replace it.
    • The legislature is accountable to citizens through regular elections.
    • Finally, constitutional courts are expected to ensure that all actions are made within the boundaries of the Constitution and laws made by the legislature.

    Dilution of the role of Parliament in  India

    • Indian Parliament has allowed its role to be diluted over the last few decades.
    • It has not questioned and monitored the activity of the executive.
    • Comparison with British Parliament: The United Kingdom’s joint parliamentary committee on human rights examined the proposals of a contact tracing app.
    • The committee recommended that an app could be used only if there was specific primary legislation to enable it. 
    •  India, in contrast, rolled out Aarogya Setu through executive decision, and has created a grey zone on whether it is mandatory or not.
    • Parliament should recover lost ground by fulfilling its constitutionally mandated role.

    Lack of parliamentary oversight during pandemic

    • Parliament will be meeting after 175 days.
    • 175 days’ is the longest gap without intervening general elections and just short of the six-month constitutional limit.
    • During the pandemic, over 900 central and nearly 6,000 State government notifications have been issued
    • Parliamentary committees did not meet for about four months.
    • This is unlike many other countries where both the plenary and committees have adopted technology to enable members to participate from home.

    Judicial intervention in policy issues

    • The lack of parliamentary oversight has been compounded by judicial intervention in many policy issues.
    •  For example, the government’s actions related to the lockdown should have been questioned by Parliament.
    • However, this was taken to the Supreme Court, which is not equipped and mandated to balance policy options.
    • Directions of the Court have to be followed which removes flexibility needed to tackle evolving issues with implementation.
    • Consider another case, Court decided to limit the period in which telecom companies have to pay their dues to the government, and overruled a cabinet decision.
    • This is a policy matter that balances interests of telecom companies, consumers and banks.
    • This issue is best judged by the government with oversight by Parliament.
    • And court should step in if there is an illegality.

    Way forward

    • Several events have taken place over the last six months that need thorough discussion.
    • This includes ways to tackle the spread of the coronavirus, economic growth which has had a sharp fall in the first quarter of this fiscal year.
    • This has far-reaching implications for creating jobs, stability of the banking system, and government finances.
    • The government is likely to bring in a supplementary budget; indeed, a fresh look at the Union Budget may be required given the changes in basic assumptions since January.
    • The situation at the China border also needs to be discussed.

    Consider the question “Anlyse the impact of pandemic on the key organs of the democracy.”

    Conclusion

    Parliamentarians have a duty towards Indian citizens to fulfil their role in scrutinising the work of the government and guiding policy. Despite the curtailed session and the constraints due to the coronavirus, they should make the best of the limited time to do so. They need to wrest back their rightful role in our democracy.

  • What are Question Hour and Zero Hour?

    The Lok Sabha Secretariat officially released the schedule for the monsoon Parliament session with Question Hour being dropped. Zero Hour will also be restricted in both Houses.

    This newscard is very narrative in its form and scope.

    Q.Discuss the various instruments of Parliamentary Control in India.

    What is Question Hour, and what is its significance?

    • Question Hour is the liveliest hour in Parliament. It is during this one hour that MPs ask questions of ministers and hold them accountable for the functioning of their ministries.
    • Prior to Independence, the first question asked of government was in 1893. It was on the burden cast on village shopkeepers who had to provide supplies to touring government officers.
    • The questions that MPs ask are designed to elicit information and trigger suitable action by ministries.
    • Over the last 70 years, MPs have successfully used this parliamentary device to shine a light on government functioning.
    • Their questions have exposed financial irregularities and brought data and information regarding government functioning to the public domain.
    • With the broadcasting since 1991, Question Hour has become one of the most visible aspects of parliamentary functioning.

    And what is Zero Hour?

    • While Question Hour is strictly regulated, Zero Hour is an Indian innovation. The phrase does not find mention in the rules of procedure.
    • The concept of Zero Hour started organically in the first decade of Indian Parliament when MPs felt the need for raising important constituency and national issues.
    • During the initial days, Parliament used to break for lunch at 1 pm.
    • Therefore, the opportunity for MPs to raise national issues without an advance notice became available at 12 pm and could last for an hour until the House adjourned for lunch.
    • This led to the hour being popularly referred to as Zero Hour and the issues being raised during this time as Zero Hour submissions.
    • Its importance can be gauged from the support it receives from citizens, media, MPs and presiding officers despite not being part of the rulebook.

    How is Question Hour regulated?

    • Parliament has comprehensive rules for dealing with every aspect of Question Hour.
    • And the presiding officers of the two houses are the final authority with respect to the conduct of Question Hour.
    • For example, usually, Question Hour is the first hour of a parliamentary sitting.

    What kinds of questions are asked?

    • Parliamentary rules provide guidelines on the kind of questions that can be asked by MPs.
    • Questions have to be limited to 150 words. They have to be precise and not too general.
    • The question should also be related to an area of responsibility of the GoI.
    • Questions should not seek information about matters that are secret or are under adjudication before courts.
    • It is the presiding officers of the two Houses who finally decide whether a question raised by an MP will be admitted for answering by the government.

    How frequently is Question Hour held?

    • The process of asking and answering questions starts with identifying the days on which Question Hour will be held.
    • At the beginning of Parliament in 1952, Lok Sabha rules provided for Question Hour to be held every day. Rajya Sabha, on the other hand, had a provision for Question Hour for two days a week.
    • A few months later, this was changed to four days a week. Then from 1964, Question Hour was taking place in Rajya Sabha on every day of the session.
    • Now, Question Hour in both Houses is held on all days of the session.
    • But there are two days when an exception is made. There is no Question Hour on the day the President addresses MPs from both Houses in the Central Hall.
    • Question Hour is not scheduled either on the day the Finance Minister presents the Budget.

    How does Parliament manage to get so many questions answered?

    • To streamline the answering of questions raised by MPs, the ministries are put into five groups. Each group answers questions on the day allocated to it.
    • For example, in the last session, on Thursday the Ministries of Civil Aviation, Labour, Housing, and Youth Affairs and Sports were answering questions posed by Lok Sabha MPs.
    • MPs can specify whether they want an oral or written response to their questions.
    • They can put an asterisk against their question signifying that they want the minister to answer that question on the floor. These are referred to as starred questions.
    • After the minister’s response, the MP who asked the question and other MPs can also ask a follow-up question.
    • This is the visible part of Question Hour, where you see MPs trying to corner ministers on the functioning of their ministries on live television.

    How do ministers prepare their answers?

    • Ministries receive the questions 15 days in advance so that they can prepare their ministers for Question Hour.
    • They also have to prepare for sharp follow-up questions they can expect to be asked in the House.
    • Governments’ officers are close at hand in a gallery so that they can pass notes or relevant documents to support the minister in answering a question.
    • When MPs are trying to gather data and information about government functioning, they prefer the responses to such queries in writing.
    • These questions are referred to as unstarred questions. The responses to these questions are placed on the table of Parliament.

    Are the questions only for ministers?

    • MPs usually ask questions to hold ministers accountable. But the rules also provide them with a mechanism for asking their colleagues a question.
    • Such a question should be limited to the role of an MP relating to a Bill or a resolution being piloted by them or any other matter connected with the functioning of the House for which they are responsible.
    • Should the presiding officer so allow, MPs can also ask a question to a minister at a notice period shorter than 15 days.

    Is there a limit to the number of questions that can be asked?

    • Rules on the number of questions that can be asked in a day have changed over the years.
    • In Lok Sabha, until the late 1960s, there was no limit on the number of unstarred questions that could be asked in a day.
    • Now, Parliament rules limit the number of starred and unstarred questions an MP can ask in a day.
    • The total numbers of questions asked by MPs in the starred and unstarred categories are then put in a random ballot.
    • From the ballot in Lok Sabha, 20 starred questions are picked for answering during Question Hour and 230 are picked for written answers.
    • Last year, a record was set when on a single day, after a gap of 47 years, all 20 starred questions were answered in Lok Sabha.

    Have there been previous sessions without Question Hour?

    • Parliamentary records show that during the Chinese aggression in 1962, the Winter Session was advanced.
    • The sitting of the House started at 12 pm and there was no Question Hour held. Before the session, changes were made limiting the number of questions.
    • Thereafter, following an agreement between the ruling and the Opposition parties, it was decided to suspend Question Hour.

  • When can a Governor use his discretion, how has the SC ruled?

    Rajasthan Governor returning the fresh proposal by the state Cabinet – seeking to convene a session of the Assembly has raised fresh legal questions on the powers of the Governor.

    Try this question for mains:

    Q. “Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.

    Who has the powers to summon the House?

    • It is the Governor acting on the aid and advice of the cabinet.
    • Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…”
    • However, the phrase “as he thinks fit” is read as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the cabinet.
    • Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.

    What has the Supreme Court said in the past about the Governor’s power to summon the House?

    • It is settled law that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority.
    • In fact, on numerous occasions, including in the 2016 Uttarakhand case, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
    • In 2016, the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker expressly said that the power to summon the House is not solely vested in the Governor.

    What did the SC say in the Arunachal case?

    • Referring to discussions in the Constituent Assembly, the court noted that the framers of the Constitution expressly and consciously left out vesting powers to summon or dissolve the House solely with the Governor.
    • It said that the powers of the Governor were substantially altered to indicate that the framers did not want to give Governors the discretion.
    • The Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of Ministers (CoM) with the Chief Minister as the head and not at his own, said the Court.

    When can a Governor use his discretion?

    • Article 163(1) of the Constitution says that “there shall be a CoM with the CM at the head to aid and advice the Governor in the exercise of his functions, except some conditions for discretion.
    • However, in the 2016 case, the apex court has defined the circumstances if the aid and advice of CoM are binding on the Governor.
    • When the chief minister has lost the support of the House and his strength is debatable, then the Governor need not wait for the advice of the CoM to hold a floor test.

    Novel situations are created these days

    • Generally, when doubts are cast on the chief minister that he has lost the majority, the opposition and the Governor would rally for a floor test.
    • The ruling party may attempt to stall the process to buy time and keep its flock together.
    • In a puzzling situation, in Rajasthan’s case, despite requests from CM, the Governor has returned requests to call for a session.
    • However, in the current case, the rebel MLAs have not defected from their party but have repeatedly stated before the Rajasthan HC that they are merely expressing their dissent within the party.

    Back2Basics: Governor’s Discretionary Powers

    The governor can use his/her discretionary powers:

    • When no party gets a clear majority, the governor has the discretion to choose a candidate for the chief minister who will put together a majority coalition as soon as possible.
    • He can impose president’s rule.
    • He submits reports on his own to the president or on the direction of the president regarding the affairs of the state.
    • He can withhold his assent to a bill and send it to the president for his approval.
    • During emergency rule per Article 353, he can override the advice of the council of ministers if specifically permitted by the president.

  • Time to revisit the practice of floor test

    The growing trend of the toppling of the government by luring the MLAs of ruling party. The SC needs to reconsider the floor test usually ordered in such cases. The article analyses this issue here.

    Reading Article 191(2) and 10th Schedule

    • Article 191(2) declares that a person shall be disqualified from being a member of the legislative assembly or legislative council of a state if he is so disqualified under the Tenth Schedule.
    • The Tenth Schedule to the Constitution contains “provisions as to disqualification on ground of defection”.
    • Tenth Schedule also fixes the relationship between a member and a political party which selected him as a candidate.
    • It also provides one of the grounds for disqualification: “If he voluntarily gives up his membership of such political party”.
    • The decision as to disqualification is left to the absolute discretion of the Speaker.

    Constitutional morality and 10th Schedule

    • Tenth Schedule brings to the fore the need to emphasise “constitutional morality”.
    • Constitutional morality means “strict adherence to the core principles of constitutional democracy”.
    • So, Constitutional transgressions by MLAs coming through a “party platform” to serve the people for five years (Article 172), cannot be accepted.
    • In so doing, these MLAs forget the oath, taken under Article 188 of the Constitution to bear true faith and allegiance to the Constitution of India as established by law.
    • Legislators do not have absolute freedom to behave in any way they like.

    Issues with the floor test

    • When ruling party MLAs are lured with rewards, political or otherwise, then the “floor test” becomes constitutionally immoral and unjust.
    • This will amount to circumventing the Tenth Schedule through engineered defections through the judicial process.
    • It is high time the judiciary revisited the use of a “floor test” to prove a majority in a legislature.

    Consider the question “Examine the ways in which a member of the house is deemed to have given up his membership under the 10th Schedule as interpreted in the various judgements. Also, analyse the implications of conducting a floor test in a situation when members of the ruling party are lured with rewards.”

    Conclusion

    Judiciary must take note of the toppling of the majority government through luring of the MLAs and subsequent floor test by the courts. The floor test in such a situation needs reconsideration.

  • The Kihoto Hollohan Judgment and its Significance

    The 28 YO Kihoto Hollohan judgment has found its relevance in the case of ousted Rajasthan Dy. CM and some MLAs who were issued a notice under the anti-defection law.

    Try this question from CSP 2019:

    Q.The Ninth Schedule was introduced in the Constitution of India during the prime-ministership of:

    (a) Jawaharlal Nehru

    (b) Lal Bahadur Shastri

    (c) Indira Gandhi

    (d) Morarji Desai

    Under debate: Speaker’s power

    • The power for this disqualification is vested in the Speaker, who is usually a nominee of the ruling party.
    • Since no action was taken by the Speaker on the disqualification petitions, a writ petition was filed before the High Court of Manipur in Imphal seeking directions to decide on the petition.
    • However, the court did not pass an order.
    • It said that the larger issue of whether a High Court can direct a Speaker to decide a disqualification petition within a certain timeframe is pending before a Constitution Bench of the Supreme Court.
    • The parties are left with the option to move the apex court or wait for the outcome of the cases pending before it.

    The Kihoto Hollohan Judgment

    • The 1992 judgment of the Supreme Court in the Kihoto Hollohan versus Zachillu and Others has said that “judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman.
    • Nor would interference be permissible at an interlocutory stage of the proceedings said the Supreme Court.
    • The only exception for any interlocutory interference can be cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.

    Free speech

    • The ruling party in Rajasthan has challenged the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification.
    • The MLAs have said the provision infringes into their right to express dissent and is a violation of their fundamental right to free speech as a legislator.
    • The Rajasthan HC Bench explained that the reason for limiting the role of courts in ongoing defection proceedings is that the “office of the Speaker is held in the highest respect and esteem in parliamentary traditions.

    Exceptions to the Kihoto Judgment

    • The judgment had said that even the scope of judicial review against an order of a Speaker or Chairman in anti-defection proceedings would be confined to jurisdictional errors.
    • That is if its infirmities are based on a violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

    Back2Basics

    https://www.civilsdaily.com/news/explained-anti-defection-law-and-its-evolution/

  • Quorum not needed for routine standing committee meetings

    The opposition parties in the Rajya Sabha has contradicted the holding the virtual meetings of standing committees to ensure quorum during deliberations.

    Try this question from CSP 2018:

    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, bylaws, etc. conferred by the Constitution or delegated by the Parliament is 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 is Quorum?

    • A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group.
    • The requirement for a quorum is protection against totally unrepresentative action in the name of the body by an unduly small number of persons.
    • Article 100 (3) of the Constitution of India stipulates that at least 10% of the total number of members of the House must be present to constitute the quorum to constitute a meeting of either House of Parliament.
    • Article 189 (3) and (4) provides for similar provisions for State Legislatures.
    • For example, if the House has a total membership of 500, at least 50 members must be present for the House to proceed with its business.

    What did RS Secretariat say over the requirement of quorum?

    • Parliamentarian these days are unable to travel to Delhi for obvious COVID reasons.
    • The Rajya Sabha secretariat has said that quorum was essential only when the committees are making decisions or adopting reports and not during routine deliberations.

    Back2Basics: What are Standing Committees?

    • Standing Committee is a committee consisting of Members of Parliament.
    • It is a permanent and regular committee which is constituted from time to time according to the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business.
    • The work done by the Indian Parliament is not only voluminous but also of a complex nature, hence a good deal of its work is carried out in these Parliamentary Committees.
    • Standing Committees are of the following kinds :
    1. Financial Standing Committees (FSC)
    2. Department Related Standing Committees (DRSC)
    3. Others Standing Committees (OSC)

  • How Manipur defections put focus on Speakers’ powers to disqualify?

    Manipur Speaker’s decision to disqualify some MLAs ahead of the Rajya Sabha election has raised questions once again on the Speaker’s powers to disqualify under the tenth schedule of our Constitution.

    Try this question from CSP 2019:

    Q.The Ninth Schedule was introduced in the Constitution of India during the prime-ministership of:

    (a) Jawaharlal Nehru

    (b) Lal Bahadur Shastri

    (c) Indira Gandhi

    (d) Morarji Desai

    What is the Tenth Schedule?

    • The anti-defection law, referred to as the Tenth Schedule, was added to the Constitution through the Fifty-Second (Amendment) Act, 1985 when Rajiv Gandhi was PM.
    • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
    • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
    • This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
    • The law applies to both Parliament and state assemblies.

    Exceptions under the law

    • Legislators may change their party without the risk of disqualification in certain circumstances.
    • The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
    • In such a scenario, neither the members who decide to merge nor the ones who stay with the original party will face disqualification.

    Is there any time limit to decide on the matter?

    • The law does not specify a time period for the Presiding Officer to decide on a disqualification plea.
    • Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

    Under debate: Speaker’s power

    • The power for this disqualification is vested in the Speaker, who is usually a nominee of the ruling party.
    • Since no action was taken by the Speaker on the disqualification petitions, a writ petition was filed before the High Court of Manipur in Imphal seeking directions to decide on the petition.
    • However, the court did not pass an order.
    • It said that the larger issue of whether a High Court can direct a Speaker to decide a disqualification petition within a certain timeframe is pending before a Constitution Bench of the Supreme Court.
    • The parties are left with the option to move the apex court or wait for the outcome of the cases pending before it.

    The apex court’s reluctance to intervene

    • In 2018, however, the High Court, refusing the preliminary objections of the Speaker, decided to hear the case on merits.
    • It reasoned that since the remedy under Tenth Schedule is an alternative to moving courts.
    • It said that if the remedy is found to be ineffective due to deliberate inaction or indecision on the part of the Speaker, the court will have jurisdiction.
    • However, the High Court again did not pass orders since the larger issue is pending before the Supreme Court.

    The apex court recommends-

    • The apex court has expressed its displeasure with the Speaker’s lack of urgency in deciding the disqualification petitions.
    • A three-judge bench of the Supreme Court ruled that Speakers of assemblies and the Parliament must decide disqualification pleas within a period of three months except in extraordinary circumstances.
    • This settled the law for situations where the timing of the disqualification is meddled to manipulate floor tests.
    • The court also recommended that the Parliament consider taking a relook at the powers of the Speakers citing instances of partisanship.
    • The court suggested independent tribunals to decide on disqualification.

    Also read:

    https://www.civilsdaily.com/news/explained-anti-defection-law-and-its-evolution/

  • Legal aspects of using Disaster Management Act to deal with pandemic

    This article analyses the legal basis of application of the Disaster Management Act to deal with the pandemic by the Central Government. The Disaster Management Act had been enacted using the residuary power of the Union legislature. So, its application to deal with the pandemic gives rise to certain legal issues. Read to know more about such issues.

    Two examples of why centralised approach may be counter-productive?

    • One, the Central government has classified all districts in the country as red, orange or green zones.
    • This classification was done in a bid to lift lockdown restrictions in an area-specific manner.
    • Some States/Union Territories objected to the classification of certain areas/districts as red zones on the ground that these areas are very large.
    • They pointed out that there was no need to keep economic activity on hold in an entire district when cases had been reported only from a small portion of that district.
    • Two, Kerala, probably the best-performing State in terms of its response to COVID-19, was sent a missive by the Central government to refrain from relaxing restrictions in the State.
    • The Central government did not trust the wisdom and judgment of the State government in the matter.

    The federal scheme and residuary power to legislate

    • Under the federal scheme, Parliament can legislate on matters under the Union List (List I).
    • Stage legislatures can legislate on matters under the State List (List II).
    • And both Parliament and State legislatures can legislate on matters under the Concurrent List (List III).
    • The residuary power to legislate on matters that are not mentioned in either List II or List III vests with Parliament under Article 248 of the Constitution read with Entry 97 of List I.
    • Furthermore, the rule of harmonious construction dictates that the entries in the legislative lists must be interpreted harmoniously.
    • And in the event of any overlap between two or more entries, the specific subject matter contained in a particular entry must be deemed to have been excluded from another entry which may deal with a more general subject matter.
    • Finally, as per Articles 73 and 162, the executive power of the Centre and the States is co-extensive with their respective legislative powers.
    • Coextensive legislative and executive power means that the Central and State governments can only take executive actions in matters where Parliament and State legislatures, respectively, have powers to legislate.

    So, which list contains Disaster Management?

    • Disaster management as a field of legislation does not find mention in either List II or List III.
    • Nor does any particular entry in List I specifically deal with this.
    • Thus, the Disaster Management Act could only have been enacted by Parliament in the exercise of its residuary powers of legislation under Article 248 read with Entry 97 of List I.

    Legal problems in using Disaster Management Act for pandemic

    • The Disaster Management Act allows the Centre to issue guidelines, directions or orders to the States for mitigating the effects of any disaster.
    • The definition of ‘disaster’ under the Act is quite broad and, literally speaking, would include a pandemic too.
    • Such a reading of the Act would vest the Central government with powers to issue directions and guidelines to State governments for dealing with the pandemic in their States.
    • However, ‘public health and sanitation’ is a specific field of legislation under Entry 6 of List II.
    • This would imply that States have the exclusive right to legislate and act on matters concerning public health.
    • Thus, the Centre’s guidelines and directions to the States for dealing with the pandemic trench upon a field of legislation and executive action that is exclusively assigned to the States — public health.
    • The Supreme Court has held time and again that federalism is a basic feature of the Constitution and the States are sovereign.
    • The Disaster Management Act cannot be applied to pandemics in view of the fact that the power to legislate on public health is vested specifically and exclusively with the States.
    • Also, under Entry 29 of List III, both Parliament and State legislatures are competent to legislate on matters involving inter-State spread of contagious or infectious diseases.
    • Therefore, theoretically speaking, Parliament would be competent to pass a law that allows the Central government to issue directions to the States to prevent inter-State spread of a disease like COVID-19.
    • That law is not the Disaster Management Act which is concerned with disasters in general, and not pandemics in particular.
    • ‘Prevention of inter-State spread of contagious and infectious diseases’ being a specific legislative head provided in List III, the same must be deemed to have been excluded from Parliament’s residuary legislative powers.
    • Therefore, the Disaster Management Act, which has been enacted under Parliament’s residuary legislative powers, cannot be applied to the prevention of the inter-State spread of contagious and infectious diseases.

    Role of Centre under Epidemic Diseases Act 1897

    • The Epidemic Diseases Act, 1897, has the objective of preventing “…the spread of dangerous epidemic diseases.”
    • However, under this Act, it is the State governments which have the prerogative to take appropriate measures for arresting the outbreak or spread of a contagious or infectious disease in their respective States.
    • The Central government’s powers are limited to taking measures for inspecting and detaining persons travelling out of or into the country.
    • Even if that Act were to be amended, it would not empower the Central government to issue directions to the States to contain the pandemic within the State.
    • It can only deal with the inter-State spread of the disease.

    Consider the question, “Use of the Disaster Management Act to deal with the Covid-19 pandemic gave rise to certain legal issues. Examine them.”

    Conclusion

    Instead of resorting to the Epidemic Diseases Act which gives powers to the States, the Centre has applied the Disaster Management Act. The States are not legally bound to observe the directions/guidelines being issued by the Central government and would be well within their rights to challenge them before the apex court.

     

  • Changes in labour laws: legal but not appropriate

    The article examines the changes made in the labour laws by several states. The legal route to make these changes are different. While some states used the Emergency provision, others used the Ordinance route. One major issue with these changes is that these were brought in without consultation.

    What legal route was used by the States?

    • Changes were made by the several state government in the labour laws dealing with the maximum working hours and other provisions.
    • These changes have been made through notifications issued by the State governments and will be applicable for the next three months.
    • M.P. has also suspended most provisions of the Industrial Disputes Act, 1946 (except those related to retrenchment and layoffs) for 1,000 days for State undertakings.
    • In addition, M.P. issued an ordinance to amend two laws.
    • The M.P. Industrial Employment Standing Orders Act will apply to establishments with more than 100 workmen (up from the existing threshold of 50), in line with the Central Act.
    • The ordinance also enables the government to exempt establishments from the provision of another Act that provided for a labour welfare fund.
    • The Uttar Pradesh government has approved an ordinance that exempts establishments from all labour laws for three years with some exceptions.
    • As this will override provisions of some Central laws, it will require the assent of the President or, in effect, the assent of the Central government.
    • The question is, was there sufficient consultation before all these changes were made?

    Constitutional provisions for the legal route taken: Emergency and ordinance

    • As per the Constitution, the legislature has the authority to make laws.
    • Such laws could delegate powers to the government which are in the nature of detailing some requirements.
    • For example, the Factories Act allows State governments to exempt factories from the provisions of the Act during public emergencies for a maximum period of three months.
    • A public emergency is defined as a grave emergency whereby the security of India or any part is threatened by war, external aggression or internal disturbance.
    • Most States have used this provision, presumably interpreting the current situation as an ‘internal disturbance’.
    • Haryana has used a provision that allows relaxation of work hours “to deal with an exceptional press of work”.
    • The Constitution also permits Central and State governments to make laws through the issuance of an ordinance when the legislature is not in session.
    • Such a law needs to be ratified by the legislature within six weeks of the beginning of the next session. M.P. and U.P. are using this procedure.

    Issues with the changes made

    • Usually, any change in an Act follows a rigorous process of public consultation, scrutiny by committees of Parliament, and debates in the House before being approved.
    • The changes described here have not gone through such a process.
    • However, most of these have a three-month time limit, and any extension would need to be approved by the legislature.

    The four labour codes

    • The Parliament is consolidating 29 existing laws into four codes dealing with- 1) wages, 2) occupational safety and health, 3) industrial relations,4) social security.
    • The first of these has been enacted, the Standing Committee on Labour has submitted the report on the next two, and is examining the last.
    • The Code on Occupational Safety and Health does not specify the maximum hours of work but empowers the government to do so.
    • The Standing Committee report states that the government agreed to incorporate a provision of maximum eight hours per day with overtime permitted for certain types of industry.

    Consider the question “Several States made changes in the labour laws to deal with the problems caused by the corona pandemic. Examine the legal provisions used for making such changes by various States. What are the issues with such changes?”

    Conclusion

    Given the emergency, the government has to take quick action and change the response as the situation evolves. However, that should not be a reason to exclude the processes of consultation with and scrutiny by elected representatives. The legitimacy of state action in a parliamentary democracy comes from the fact that there is constant oversight and check by elected representatives.