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GS Paper: Parliament & State Legislatures

  • Law to deal with pandemics

    India lacks specific legislation to deal with pandemics like COVID. While NDMA 2005 and Epidemic Diseases Act 1897 has been invoked to deal with the present situation, both acts lack specific provision in dealing with the pandemics. Here we can take lessons from UK’s Coronavirus Act and Singapore’s regulations to create a well-drafted Indian COVID 19 law.

    Which acts were used for enforcing lockdown?

    • The home ministry issued directions to State governments and district authorities under the Disaster Management Act of 2005.
    • Under the Act, the National Disaster Management Authority (NDMA) was set up under the Prime Minister, and the National Executive Committee (NEC) was chaired by the Home Secretary.
    • The State governments and authorities exercised powers under the Epidemic Diseases Act of 1897 to issue further directions.
    • District authorities such as the Commissioner of Police have consequently issued orders to impose Section 144 of the Criminal Procedure Code in public places.

    Issues with the laws used for lockdown

    • The invoking of the Disaster Management Act has allowed the Union government to communicate seamlessly with the States.
    • But serious questions remain whether the Act was originally intended to or is sufficiently capable of addressing the threat of a pandemic.
    • The use of the archaic Epidemic Diseases Act reveals the lack of requisite diligence and responsiveness of government authorities in providing novel and innovative policy solutions to address a 21st-century problem.
    • Another serious problem is that any violation of the orders passed would be prosecutable under Section 188 of the Indian Penal Code.
    • But section 188 of IPC is a very ineffective and broad provision dealing with disobedience of an order issued by a public servant.

    The UK and Singapore’s laws to deal with the pandemic

    • U.K’s Coronavirus Act, 2020: It deals with issues including emergency registration of healthcare professionals, temporary closure of educational institutions, audio-visual facilities for criminal proceedings, powers to restrict gatherings, and financial assistance to industry.
    • Singapore’s Infectious Diseases Regulations, 2020: These regulations provides for the issuance of stay orders which can send ‘at-risk individuals’ to a government-specified accommodation facility.
    • Both U.K.’s and Singapore’s laws set out unambiguous conditions and legally binding obligations.
    • As such, under Singaporean law, the violators may be penalised up to $10,000 or face six months imprisonment or both.
    • In contrast, Section 188 of the Indian Penal Code has a fine amount of ₹200 to ₹1,000 or imprisonment of one to six months.
    • Even then, proceedings under Section 188 can only be initiated by private complaint and not through a First Information Report.
    • As such, offences arising out of these guidelines and orders have a weak basis in terms of criminal jurisdiction thereby weakening the objectives of the lockdown.

    Problems in the government’s approach

    • The Union government showed no inclination towards drafting or enacting COVID-19-specific legislation that could address all the issues pre-emptively.
    • There has been little clarity on a road map to economic recovery.
    • A consolidated, pro-active policy approach is absent.
    • In fact, there has been ad hoc and reactive rule-making, as seen in the way migrant workers have been treated.
    • This has also exposed the lack of coordination between the Union and State governments.

    Consider the question, “Unlike many countries which legislated specific acts to deal with Covid-19 pandemic, India was already equipped with acts which enabled it to deal with the pandemic. Describe the acts and their provisions used to deal with the pandemic. What were the issues  with these provisions?”

    Conclusion

    In past instances, the Union government has not shied away from promulgating ordinances. These circumstances call out for legislative leadership, to assist and empower States to overcome COVID-19 and to revive their economic, education and public health sectors.

    Back2Basics: National Disaster Management Act 2005

    • On 23 December 2005, the Government of India enacted the Disaster Management Act.
    • The act envisaged the creation of the National Disaster Management Authority (NDMA), headed by the Prime Minister.
    • The act also provides for State Disaster Management Authorities (SDMAs) headed by respective Chief Ministers.
    • NDMA and SDMAs spearhead and implement a holistic and integrated approach to Disaster Management in India.
    • The NDMA was formally constituted on 27thSeptember 2006, in accordance with the Disaster Management Act, 2005 with Prime Minister as its Chairperson and nine other members, and one such member to be designated as Vice-Chairperson.
    • According to the Disaster Management Act, 2005 a disaster is defined as-
    • A catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.
    • The MHA has defined a disaster as an “extreme disruption of the functioning of a society that causes widespread human, material, or environmental losses that exceed the ability of the affected society to cope with its own resources.

    Epidemic Diseases Act  1897

    • The Epidemic Diseases Act is routinely enforced across the country for dealing with outbreaks of diseases such as swine flu, dengue, and cholera.
    • The colonial government introduced the Act to tackle the epidemic of bubonic plague that had spread in the erstwhile Bombay Presidency in the 1890s.
    • Using powers conferred by the Act, colonies authorities would search suspected plague cases in homes and among passengers, with forcible segregations, evacuations, and demolitions of infected places.
    • Historians have criticised the Act for its potential for abuse.
    • In 1897, the year the law was enforced, Lokmanya Tilak was punished with 18 months’ rigorous imprisonment after his newspapers Kesari and Mahratta admonished imperial authorities for their handling of the plague epidemic.

    Provisions of the 1897 Epidemic Diseases Act

    • The Act is one of the shortest Acts in India, comprising just four sections. It aims to provide for the better prevention of the spread of Dangerous Epidemic Diseases.
    • The then Governor-General of colonial India had conferred special powers upon the local authorities to implement the measures necessary for the control of epidemics.
    • Although, the act does define or give a description of a “dangerous epidemic disease”.

    Its various sections can be summarized as under

    • The first section describes all the title and extent, the second part explains all the special powers given to the state government and centre to take special measures and regulations to contain the spread of disease.
    • The second section has a special subsection 2A empowers the central government to take steps to prevent the spread of an epidemic, especially allowing the government to inspect any ship arriving or leaving any post and the power to detain any person intending to sail or arriving in the country.
    • The third section describes the penalties for violating the regulations in accordance with Section 188 of the IPC. Section 3 states, “Six months’ imprisonment or 1,000 rupees fine or both could be charged out to the person who disobeys this Act.”
    • The fourth and the last section deals with legal protection to implementing officers acting under the Act.

  • Issues with nominated CM’s election

    • Maharashtra CM is yet to be nominated to one of the seats reserved for the Governor’s nominee in the state Legislative Council.
    • His current term in office approaches its end with a looming constitutional crisis.

    The discretionary powers of the governor have been subjected to various debates this year. Be it Karnataka, Maharashtra, MP or erstwhile J&K (under Lt. Governor) or the UT of Delhi.

    CM without Election

    • Maha CM took oath in accordance with Article 164(4).
    • The article states that a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.
    • It follows that the Chief Minister must become part of the legislature before the said expiration of 6 months.

    Governors dilemma

    • A situation in which an individual who is not a member of the legislature becomes chief executive of the government is in itself fairly common.
    • But with the pandemic raging, a by-election cannot be held.
    • The only way to fulfil the requirement, therefore, is for a person to be nominated to the Upper House by the Governor.
    • If that does not happen, the Governor is obligated to make way for someone else to lead the coalition govt.
    • CM Uddhav Thackeray is likely to have had no problems becoming a member of the legislature had the pandemic not hit.

    What does the Judiciary have to say?

    • In S R Chaudhuri vs State of Punjab and Ors (2001), the Supreme Court had ruled that it would be subverting the Constitution to permit an individual, who is not a member of the Legislature.
    • Such a person should not be appointed a Minister repeatedly for a term of ‘six consecutive months’, without him getting himself elected in the meanwhile.
    • The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid.

    Testing the nomination route

    • The nomination route for non-member Ministers is less common — but not unconstitutional.
    • In 1952, C Rajagopalachari was nominated as CM of Madras by Governor Sri Prakasa.
    • Under Article 171(5), the Governor can nominate “persons having special knowledge or practical experience in respect of. literature, science, art, co-operative movement and social service”.
    • Last month, the President nominated former Chief Justice of India Ranjan Gogoi to Rajya Sabha even though there were doubts about him meeting these prescribed qualifications.
    • Thackeray can be said to have a stronger claim in this regard — he is an ace wildlife photographer.
    • Moreover, as per the Allahabad High Court in Har Sharan Varma vs Chandra Bhan Gupta And Ors (February 15, 1961), even politics can be seen as ‘social service’.

    The role of the Governor

    • It has been argued that Section 151A of The Representation of the People Act, 1951, prohibits the filling of a vacancy if “the remainder of the term of a member in relation to a vacancy is less than one year”.
    • However, this cannot be a reason for the Governor to refuse nomination — because the bar is in respect of by-election to fill a vacancy, not nomination.
    • Of course, the Governor could argue that he is not obligated under the Constitution to act swiftly on the advice of the Council of Ministers; also, why should he nominate Thackeray only to save his chief ministership.

    A new issue for debate

    • It is important to note the extraordinary context — India is currently battling a health emergency of the kind not seen in the history of the republic.
    • Political uncertainty is the last thing that Maharashtra, which has the highest coronavirus caseload and death toll by far in the country, needs at this moment.

    The question of discretion

    • What are the limits to the Governor’s discretion in nominations is the matter of discussion now.
    • In Biman Chandra Bose vs Dr H C Mukherjee (1952) the Calcutta HC rejected the plea that none of the nine nominated members to the legislature fulfilled the required criteria and held that the Governor cannot use his discretion in nominating members to the Council.
    • He has to go by the aid and advice of the Council of Ministers.
    • Article 163(1) of the Constitution makes it clear that the Governor must follow the recommendations of the Council of Ministers in all situations “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”.

    Case in Maharashtra

    • It can be argued that government is bound by the advice of the CoM only in executive matters as defined in Article 162 and since the nomination of members is not an executive power, he can act in his discretion.
    • However, it must be noted that under Article 169, while Parliament has the power to abolish or create a Legislative Council, it can pass such a law only after the state Assembly has passed a resolution to that effect.
    • Thus, the legislative power of the Assembly can be inferred from this provision.

    Also read:

    https://www.civilsdaily.com/news/role-of-governor-in-state-govt-formation/

  • Institutional fixes and the need for ethical politics

    The article discusses the recent event in Madhya Pradesh where a group of legislature resigned bringing down the government. A most important issue arising out such incidents is circumventing of the laws made to avoid such things from happening. Several such issues along with their solutions are described here.

    New method to bypass the anti-defection law

    • The political activities in Madhya Pradesh represent a new method of bypassing the anti-defection law and toppling elected governments.
    • The government in Karnataka was brought down in July last year in a similar manner with 17 MLAs of the ruling coalition resigning and joining the BJP.
    • What method was used? Under this novel method, a set of legislators of the party in power is made to resign from the Assembly to reduce the total strength of the House enough for the opposition party to cross the halfway mark to form the government.
    • In the ensuing by-elections, the members who resigned were then fielded as ruling party candidates (most of whom have been re-elected in the case of Karnataka).
    • The same practice is likely to be repeated in Madhya Pradesh soon.

    A question based on anti-defection law and its implication for healthy debate in the parliament was asked in 2013. And that issues still persist. So, take note of these issues.

    Exploiting the loophole in the Tenth Schedule

    • This method of mass defection circumvents the provisions of the Tenth Schedule of the Constitution (better known as the anti-defection law)
    • What is the Tenth Schedule? The tenth schedule prescribes the grounds for disqualification of legislators: voluntarily giving up party membership and voting or abstaining to vote against party directions.
    • Resignation is not mentioned as a ground for disqualification.
    • However, the Speaker in Karnataka disqualified them for the rest of the Assembly’s term, thereby barring them from contesting the by-polls.
    • While the Supreme Court upheld the disqualification.
    • It stuck down the bar from contesting by-polls.
    • In Madhya Pradesh, since the Speaker has accepted the resignation of the MLAs, the defectors can in any case contest the by-polls.

    Damaging the underpinnings of democracy

    • The recurrence of this model of defection signals the exploitation of the inherent weaknesses of the anti-defection law.
    • While solo legislators jumping ship might have reduced now, “horse-trading” seems to have gone from retail to wholesale.
    • This threatens the underpinnings of India’s electoral democracy since such surreptitious capture of power essentially betrays the people’s mandate in a general election.

    Kihoto case is an important case in relation to the anti-defection law.

    Time to reframe the anti-defection law

    • In this context, it is important to examine whether the anti-defection law fulfils any purpose.
    • This law raises fundamental concerns regarding the role of a legislator in a parliamentary democracy.
    • Issues with the law: It denies the legislator the right to take a principled position on a policy matter and reduces her to an involuntary supporter of the whims of party bosses.
    • Challenge to the constitutionality: The constitutionality of the Tenth Schedule was challenged for violating the Basic Structure of Constitution with regard to parliamentary democracy and free speech.
    • Judicial review of the Speaker’s decision: The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) in a 3-2 verdict upheld the law while reserving the right of judicial review of the Speaker’s decision.

    What are the shortcomings in the anti-defection law?

    • Restriction on the freedom of legislator: The anti-defection law, on the one hand, severely restricts the freedom of a legislator and makes her a slave of party whips.
    • Failure in preventing the horse-trading: On the other hand, it has not been able to meet its primary objective of preventing horse-trading and continues to be circumvented to bring down elected governments.
    • This calls for reforms that address concerns at both ends of the spectrum.

    Following two are the solutions offered here. They are important from Mains point of view. As solutions are often asked for the pressing issues.

    Dinesh Goswami Committee and other suggestion

    • Restrict the scope of the binding whip: For addressing the first issue, as the Dinesh Goswami Committee also suggested, the scope of the binding whip should be restricted to a vote of confidence.
    • For addressing the second issue, it is best to institutionalise the Karnataka Speaker’s decision to bar the defected members from contesting in the ensuing by-poll, if not for a longer period.
    • This will disincentivise MLAs from jumping ship.
    • These reforms would require a constitutional amendment to the Tenth Schedule, an uphill task under the current circumstances.

    Conclusion

    We are facing a deeper challenge of the corrosion of India’s parliamentary system, for even in jurisdictions without such anti-defection laws, we do not see “horse-trading” and “resort politics”. Hence, beyond institutional fixes, we also need a popular articulation of an ethical politics that causes the public to shun such political manoeuvres.

    Back2Basic: What is the Tenth Schedule?

    • The Tenth Schedule was inserted in the Constitution in 1985.
    • 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.

  • Anti Defection Law

  • What is Finance Bill?

    The Parliament has passed the Finance Bill 2020 with 40 amendments without any discussion.

    Highlights of the Bill

    • Among the important amendments included was one enabling the government to raise additional excise duty on petrol by up to Rs 18 per litre and diesel by up to Rs 12 per litre when required.
    • Amendments enabling the taxation of NRIs’ India-controlled income above Rs 15 lakh, and another extending the DDT exemption to REITs and Infrastructure Investment trusts were passed.
    • The Bill also changes the definition of ‘Resident’, as stipulated under the Income Tax Act.
    • Presently, a person is considered a resident of India, i.e. their global income is taxable in India if they are in the country for more than 182 days a year. This has now been reduced to 120 days.
    • The amendments also include provisions for levying TDS of 1 per cent on e-commerce transactions.

    What is a Finance Bill?

    • As per Article 110 of the Constitution, the Finance Bill is a Money Bill.
    • The Finance Bill is a part of the Union Budget, stipulating all the legal amendments required for the changes in taxation proposed by the Finance Minister.
    • This Bill encompasses all amendments required in various laws pertaining to tax, in accordance with the tax proposals made in the Union Budget.
    • The Finance Bill, as a Money Bill, needs to be passed by the Lok Sabha — the lower house of the Parliament. Post the Lok Sabha’s approval, the Finance Bill becomes Finance Act.

    Difference between a Money Bill and the Finance Bill

    1) Money Bill

    • A Money Bill has to be introduced in the Lok Sabha as per Section 110 of the Constitution. Then, it is transmitted to the Rajya Sabha for its recommendations.
    • The Rajya Sabha has to return the Bill with recommendations in 14 days.
    • However, the Lok Sabha can reject all or some of the recommendations.

    2) Finance Bill

    • In a general sense, any Bill that relates to revenue or expenditure is a Financial Bill.
    • The Finance Bill is introduced in Lok Sabha.
    • Rajya Sabha can recommend amendments in the bill. However, the bill has to be passed by the Parliament within 75 days of introduction.

    >Types of Finance Bills

    Type I

    • Financial Bill Cat-1 is a bill which contains any of the matters specified in Article 110 but does not exclusively deal with such matters.
    • For example- a bill which contains a taxation clause, but does not deal solely with taxation under Article 117 (1), has two features in common with a money bill.
    1. It cannot be introduced in the Rajya Sabha.
    2. It can only be introduced in Lok Sabha with the prior recommendation of the President.(Similarities)
    • But has one feature uncommon that is, not being a Money Bill, the Rajya Sabha has the same power to reject or amend such Financial Bill subject to limitation.

    Type II

    • It is a finance bill which merely involves expenditure and does not include any of the matters specified in Article 110.
    • It is an Ordinary Bill and may be initiated in either House and the Rajya Sabha has full power to reject or ament it.
    • It is thus apparent that all Money Bills are Financial Bills but all Financial Bills are not Money Bills.

    Who decides the Bill is a Finance Bill?

    • The Speaker of the Lok Sabha is authorised to decide whether the Bill is a Money Bill or not.
    • Also, the Speaker’s decision shall be deemed to be final.

    Why Finance Bill is needed?

    • The Union Budget proposes many tax changes for the upcoming financial year, even if not all of those proposed changes find a mention in the Finance Minister’s Budget speech.
    • These proposed changes pertain to several existing laws dealing with various taxes in the country.
    • The Finance Bill seeks to insert amendments into all those laws concerned, without having to bring out a separate amendment law for each of those Acts.
    • For instance, a Union Budget’s proposed tax changes may require amending the various sections of the Income Tax law, Stamp Act, Money Laundering law, etc.
    • The Finance Bill overrides and makes changes in the existing laws wherever required.

    What changes can be made via Finance Bill?

    • The most awaited changes in the tax proposals in the Union Budget usually pertain to personal income tax.
    • For taxpayers across the country, the most awaited moment is when the Finance Minister’s speech announces an increase in minimum income threshold, or declares any changes in income tax slabs to make it less costly, or other exemptions.
    • In addition, there might be changes in the rules, procedures, and deadlines for filing tax returns or the payment of tax itself.
    • For instance, there might be a change in the amount of penalty for missing the deadline. Those proposed changes would typically need to be brought in via amending the Income Tax Act.
    • Among other changes, the FM may propose in the Union Budget with regard to the rates or processes for payment or administration of stamp duty levied on various instruments.
    • Such a change would need to be brought in via an amendment to the Stamp Act.
    • Since the introduction of GST, there is no amendment to indirect taxes in the Union Budget, since that is under the purview of the GST Council.

     

  • Supreme Court Removes Manipur MLA Under The 10th Schedule

    The Supreme Court has removed a Minister against whom disqualification petitions were pending before the Speaker since 2017.

    • The court invoked its discretionary powers under Art. 142 of the Indian Constitution.

    What is Article 142?

    • Article 142 of the Constitution empowers the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
    • Any decree so passed or orders so made shall be enforceable throughout the territory of India.
    • The phrase ‘necessary for doing complete justice’ encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome.
    • The power under Article 142 can be exercised when the SC has to decide difficult cases where adequate laws may not exist, or existing laws may not be adequate, in order to deliver complete justice.

    Scope and limitations

    • Supreme Court in State of Punjab v Rafiq Masih (2014) has opined that- Article 142 of the Constitution of India is supplementary in nature and cannot supersede the substantive provisions, though they are not limited by the substantive provisions in the statute”.
    • Article 212 of the Constitution bars courts from inquiring into proceedings of the Legislature.
    • In this case, however, prompted by the fact that the Speaker’s conduct has been called into question on several occasions, the court invoked Article 142.

  • What are Supplementary Grants?

    Supplementary Grants

    Lok Sabha recently held voting on supplementary demands for grants for Jammu and Kashmir and passed the proposals on voice vote.

    What are Supplementary Grants?

    • The additional grant required to meet the required expenditure of the government is called Supplementary Grants.
    • When grants, authorised by the Parliament, fall short of the required expenditure, an estimate is presented before the Parliament for Supplementary or Additional grants.
    • These grants are presented and passed by the Parliament before the end of the financial year.
    • When actual expenditure incurred exceeds the approved grants of the Parliament, the Ministry of Finance and Ministry of Railways presents a Demand for Excess Grant.

    How it works?

    • The Comptroller and Auditor General of India bring such excesses to the notice of the Parliament.
    • The Public Accounts Committee examines these excesses and gives recommendations to the Parliament.
    • The Demand for Excess Grants is made after the actual expenditure is incurred and is presented to the Parliament after the end of the financial year in which the expenses were made.

  • Nominated members of Rajya Sabha

    Former CJI Ranjan Gogoi has been nominated as a member of Rajya Sabha.

    Nominated members in RS

    • As per the Fourth Schedule to the Constitution of India on 26 January 1950, the Rajya Sabha was to consist of 216 members of which 12 members were to be nominated by the President and the remaining 204 elected to represent the States.
    • The present strength, however, is 245 members of whom 233 are representatives of the states and union territories and 12 are nominated by the President.
    • The Rajya Sabha is not subject to dissolution; one-third of its members retire every second year.
    • The 12 nominated members of the Rajya Sabha are persons who are eminent in particular fields, and are well known contributors in the particular field.
    • The nominated members are usually amongst persons having special knowledge or practical experience in literature, science, art and social service.

    Constitutional provisions

    • 80(1)(a) of Constitution of India makes provision for the nomination of 12 members to the Rajya Sabha by the President of India in accordance with provisions of Arts.80(3).
    • 80(3) says that the persons to be nominated as members must be possessing special knowledge or practical experience in respect of such matters as the following namely : Literature, science, art and social service.

    Earlier CJIs in other Offices

    • Justice Hidayatullah was appointed vice-president nine years after his tenure as CJI ended (1979).
    • Justice Ranganath Mishra was appointed six years after his retirement (1998).
    • Justice Bahraul Islam served as a member of the Rajya Sabha several years before he was elevated to the SC (1983).
    • Justice Subba Rao, who contested for the post of president (and lost to Zakir Hussain) was roundly criticised for the decision at that time.

    Issues with CJI’s appointment

    • Late Arun Jaitley cautioned, in 2012, that “pre-retirement judgments are influenced by a desire for a post-retirement job”. Perhaps, those words were never more relevant than they are today.
    • The immediacy and hurried nature of the present appointment, barely four months after Justice Gogoi retired, is bound to give rise to questions about its context.
    • It was a tenure that inspired much scrutiny; a tenure which saw the repeated use of sealed envelopes, the contents of which were known only to the government; a tenure which recorded a significant and frequent number of judgments in favour of the executive.

    What were the alternatives?

    • Several appointments to administrative bodies require a cooling-off period for individuals so as to eliminate the possibility or suspicion of a conflict of interest or quid pro quo.
    • Officials who retire from sensitive positions are barred from accepting any other appointment for a period of time, normally two years.
    • These cooling-off periods in posts are premised on the snapping off of the nexus between previous incumbency and new appointment by the interposition of a sufficient time gap.

  • Speaker vs Governor Tussle

    With the Supreme Court set to hear on a plea seeking a directive to the government in Madhya Pradesh to take a floor test “within 12 hours”, the spotlight is back on the legal debate on the powers of the Governor and the Speaker under the Constitution.

    Primacy to Floor Test

    • Since 2014, the legal-political tussle between the Governor and Speaker has prompted the Supreme Court’s intervention in three major instances — in the Arunachal Pradesh and Uttarakhand cases in 2016 and in the Karnataka case in 2019.
    • In all three cases, the court emphasised the primacy of the floor test.
    • In the Arunachal and Uttarakhand cases, the House was in suspended animation as President’s Rule had been imposed.
    • The Supreme Court ordered that the House be summoned and a floor test held to end the impasse.
    • But Article 212 of the Constitution bars courts from inquiring into proceedings of the Legislature.

    Earlier instances

    • Earlier, the Sarkaria Commission had recommended that, if the CM neglects or refuses to summon the Assembly for a floor test, the Governor should summon the Assembly.
    • If the House is adjourned sine die or prorogued without holding a floor test, then all options are open before the Governor.
    • However, when the House is in session, the question of whether the court can direct the Speaker to hold a floor test is yet to be settled.
    • In 1998, in the Jagadambika Pal case, the SC had ordered a composite floor test when the House was in session.
    • However, in that case, there were two claimants to the chief minister’s post.

  • When does Speaker suspend MPs from Lok Sabha?

    Seven MPs of a political party were suspended for unruly behaviour in the Lok Sabha. The motion was passed by a voice vote.

    What is the reason for suspending an MP?

    • The general principle is that it is the role and duty of the Speaker of Lok Sabha to maintain order so that the House can function smoothly.
    • This is a daunting task even at the best of times.
    • In order to ensure that proceedings are conducted in the proper manner, the Speaker is empowered to force a Member to withdraw from the House (for the remaining part of the day), or to place him/her under suspension.

    What are the rules under which the Speaker acts?

    Rule Number 373 of the Rules of Procedure and Conduct of Business says:

    • The Speaker, if is of the opinion that the conduct of any Member is grossly disorderly, may direct such Member to withdraw immediately from the House, and any Member so ordered to withdraw shall do so forthwith and shall remain absent during the remainder of the day’s sitting.

    To deal with more recalcitrant Members, the Speaker may take recourse to Rules 374 and 374A. Rule 374 says:

    1. The Speaker may, it deems it necessary, name a Member who disregards the authority of the Chair or abuses the rules of the House by persistently and wilfully obstructing the business thereof.
    2. If a Member is so named by the Speaker, the Speaker shall, on a motion being made forthwith put the question that the Member (naming such Member) be suspended from the service of the House for a period not exceeding the remainder of the session: Provided that the House may, at any time, on a motion being made, resolve that such suspension be terminated.
    3. A member suspended under this rule shall forthwith withdraw from the precincts of the House.

    What is the procedure for revocation of a Member’s suspension?

    • While the Speaker is empowered to place a Member under suspension, the authority for revocation of this order is not vested in her.
    • It is for the House, if it so desires, to resolve on a motion to revoke the suspension.

    What happens in Rajya Sabha?

    • Like the Speaker in Lok Sabha, the Chairman of the Rajya Sabha is empowered under Rule Number 255 of its Rule Book to “direct any Member whose conduct is in his opinion grossly disorderly to withdraw immediately” from the House.
    • Any Member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the day’s meeting.
    • The Chairman may name a Member who disregards the authority of the Chair or abuses the rules of the Council by persistently and wilfully obstructing business.
    • In such a situation, the House may adopt a motion suspending the Member from the service of the House for a period not exceeding the remainder of the session.
    • The House may, however, by another motion, terminate the suspension.
    • Unlike the Speaker, however, the Rajya Sabha Chairman does not have the power to suspend a Member.

    Way Forward: Striking a balance

    • There can be no question that the enforcement of the supreme authority of the Speaker is essential for smooth conduct of proceedings. A balance has to be struck.
    • However, it must be remembered that her job is to run the House, not to lord over it.
    • The solution to unruly behaviour has to be long-term and consistent with democratic values.
    • A step in that same direction could be to discontinue the practice of herding people out of the visitors’ gallery when the House witnesses chaos.
    • So, the ruling party of the day invariably insists on the maintenance of discipline, just as the Opposition insists on its right to protest. And their positions change when their roles flip.