[op-ed pf the day] A matter of deliberation
Note- Op-ed of the day is the most important editorial of the day. Aspirants should try to cover at least this editorial on a daily basis to have command over most important issues in news. It will help in enhancing and enriching the content in mains answers. Please do not miss at any cost.
- Earlier this week, the Rajya Sabha was witness to acrimonious scenes during the discussion on the RTI Amendment Bill, which amends the RTI Act of 2005. It provides that the term of office and remuneration of information commissioners (both at the Centre and states) will be prescribed by the central government.
- The treasury benches and a few other parties were of the opinion that the Bill should be passed after debating it on the floor of the House.
- Ultimately, the House passed the RTI Amendment after voting down the demand for sending it to a committee.
- So far, none of the 13 bills passed by Parliament in this session have been referred to a parliamentary committee.
- Our Parliament broadly has two forums for discussion.
- One is on the floor of the House where the debate is televised and MPs take positions based on their parties’ stand on a subject.
Parliamentary committees –
- The other is the closed-door forum of parliamentary committees.
- These committees are made up of MPs either from one or both Houses.
- Their meetings are not televised and the record of the meetings does not reflect the position taken by an individual MP.
- Both these forums have their own advantages and disadvantages.
- A debate on the floor of the House allows for the cut and thrust of political debate and can be wrapped up in a few hours.
- Debates in committees are more technical but the deliberations require time and stretch for a few months.
The rationale behind the committee system
1.Specialised forum for deliberation – The idea behind the establishment of the committee system in Parliament was to provide a specialised forum for deliberation on national policy issues, which was not constrained by the limited number of sitting days (less than three months a year) of Parliament.
2. Objectives –
- In 1993, when this modern subject committee system took shape, the then the Vice President of India summed up the objectives of parliamentary committees: “…
- The main purpose, of course, is to ensure the accountability of Government to Parliament through more detailed consideration of measures in these committees.
- The purpose is not to weaken or criticise the administration but to strengthen it by investing it with more meaningful parliamentary support.”
- The committee, over the years, has worked well in strengthening our legislative process.
Process of a committee
- The scrutiny of a bill by a committee usually takes a few months. If a bill is referred to a committee, its legislative journey slows down as it can only be debated after the committee has submitted its report.
- This slow down of legislation has been been a source of continued tension between the ruling party and Opposition over the last five years.
- A bill can usually be referred to a parliamentary committee in three ways.
1.First way – First, the minister piloting the bill can seek the permission of the House to refer the Bill to a committee.
2.Second Way –
- Second, the Chairman/Speaker has the discretion in referring the bill to a committee.
- When ministers are trying to build political consensus on a bill, they welcome its referring to a committee.
- However, when they are in a hurry to get their legislative proposals approved by Parliament, they impress upon the Chairman/ Speaker not to refer the bill to a committee.
- This is when the third mechanism kicks in.
- When a bill reaches a House where the government does not have a majority, the MPs of the House can marshall the numbers to move a motion to refer the bill to a committee.
- This leads to the government blaming the Opposition for the slowdown, which counters by accusing the government of trying to bulldoze legislation through Parliament.
- A robust lawmaking process requires thorough scrutiny by Parliament.
- Such scrutiny should not be impacted by either the strength of numbers in Parliament or political agreement on issues.
- This robustness can be ensured by requiring that all Bills be referred to Parliamentary committees.
- Exceptions to this rule should be strictly defined and the exceptions explained to Parliament.
- In addition, the committees should be strengthened to scrutinise and present their reports in a timely fashion.
- These mechanisms will ensure that all bills passed by Parliament, irrespective of the party in power, go through a well laid-out process of debate.
Explained: Floor test
- The Supreme Court is scheduled to hear a plea filed for an immediate floor test in Karnataka Assembly.
What is a floor test?
- A floor test is primarily taken to know whether the executive enjoys the confidence of the legislature.
- It is a constitutional mechanism under which a Chief Minister appointed by the Governor can be asked to prove majority on the floor of the Legislative Assembly of the state.
- As per the Constitution, the Chief Minister is appointed by the Governor of the state.
- When a single party secures the majority of the seats in the house, the Governor appoints the leader of the party as the Chief Minister.
- In case the majority is questioned, the leader of the party which claims majority has to move a vote of confidence and prove majority among those present and voting.
- The Chief Minister has to resign if they fail to prove their majority in the house. This happens both in the parliament and the state legislative assemblies.
- In situations when there are differences within a coalition government, the Governor can ask the Chief Minister to prove majority in the house.
What is composite floor test?
- There is another test, Composite Floor Test, which is conducted only when more than one person stakes claim to form the government.
- When the majority is not clear, the governor might call for a special session to see who has the majority.
- The majority is counted based on those present and voting. This can also be done through a voice vote where the member can respond orally or through division voting.
- Some legislators may be absent or choose not to vote.
- In division vote, voting can be done through electronic gadgets, ballots or slips.
- The person who has the majority will form the government. In case of tie, the speaker can also cast his vote.
- When no party gets a clear majority, the governor can use his discretion in the selection of chief ministerial candidate to prove the majority as soon as possible.
[op-ed snap] Balance and tilt
The Supreme Court’s interim order stating that the 15 dissident Karnataka legislators cannot be compelled to attend the House, means they are not bound by any whip relating to the trust vote moved by Chief Minister H.D. Kumaraswamy.
Impact of order
- This gives the numerical advantage in the House to the BJP-led Opposition. Without the support of the 15 lawmakers, the ruling coalition will be reduced to a minority.
- The other limb of the order permits the Speaker to decide on the resignation of these MLAs in a time-frame he considers appropriate.
- Although the court says there was an imperative necessity “to maintain the constitutional balance”, the order tilts the odds in favour of the Opposition in the vote.
- It amounts to holding that provisions of the anti-defection law, under which parties can issue whips to their members to vote in a particular way, will not be applicable to the 15 MLAs.
Setting a dangerous precedent
- The order raises the concern whether it does not constitute a perilous precedent for granting ad hoc judicial exceptions from constitutional provisions on defection and set the tone for future judicial intervention to suspend the operation of any whip in respect of a few.
- Alternatively, the court, which is understandably reluctant to intervene in the Speaker’s power ahead of his decisions, could have refrained from making any orders about the legislators’ presence during the trust vote, and made it clear that any action against them arising out of their absence or manner of voting would be subject to judicial review.
Supreme Court burdened
- To be fair to the Supreme Court, it is being burdened with the task of unravelling political knots created by amoral strategems. In this case, the “political thicket” into which the court has been dragged has its origins in manoeuvres to reduce the combined strength of the Janata Dal(S) and the Congress.
- In a bid to thwart tactical resignations, the government and the Speaker adopted the counter-strategy of not immediately accepting them, but initiating or pursuing disqualification proceedings.
Questions in litigation
- One of the questions in the litigation is whether it is resignation or disqualification that should get priority.
- The objective of disqualifying the MLAs rather than allowing them to quit will not save the government, but it will prevent them from taking oath as ministers in an alternative Cabinet.
- Though the court’s order recognises the Speaker’s authority to rule whether the resignations are genuine, and fixes no time-frame, it is a Pyrrhic victory; for, their continuance as members puts them under no obligation to vote for the government in view of the allowance given to stay away during the vote.
The dissident MLAs risk nothing other than their seats, certainly not the opportunity to join the Cabinet of a successor-government. When the court takes up the substantive questions of law for adjudication, it should squarely address the new-found interplay between issues of resignation and disqualification, lest it become a perennial source of political controversy.
Kihoto Hollohan Order (1992)
Crisis in K’taka Assembly
- Various arguments are undergoing in the Supreme Court related to the political crisis in Karnataka.
- A Senior Advocate has cited the landmark judgment in Kihoto Hollohan vs Zachillhu And Others (1992).
- It states that the court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
What was the Kihoto Hollohan case?
- The Tenth Schedule, which was inserted in the Constitution by the Constitution (52nd Amendment) Act, 1985, popularly known as the “anti-defection law”, provides for the disqualification of MPs and MLAs who defect.
- The law covering the disqualification of legislators and the powers of the Speaker in deciding such matters became part of the statute book in 1985 when the Tenth Schedule to the Constitution was adopted.
- A constitutional challenge to the Tenth Schedule was settled by the apex court in Kihoto Hollohan Case.
- The principal question before the Supreme Court in the case was whether the powerful role given to the Speaker violated the doctrine of Basic Structure.
Extent of the Speaker’s powers
- Paragraph 6(1) of the Tenth Schedule describes the Speaker’s sweeping discretionary powers. It reads:
- If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.
What did the Supreme Court rule in Hollohan?
- The petitioners in Hollohan argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias.
- The majority judgment authored by Justices M N Venkatachaliah and K Jayachandra Reddy answered this question in the affirmative,
- The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.
- They are expected to and do take far reaching decisions in the Parliamentary democracy.
- Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.
- They added that the Schedule’s provisions were “salutory and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.
Dissenting opinions over Speakers Power
- The tenure of the Speaker, who is the authority in the Tenth Schedule to decide this dispute, is dependent on the continuous support of the majority in the House and, therefore, he does not satisfy the requirement of such an independent adjudicatory authority.
- Independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of the democratic system which is a basic feature of our Constitution
- The Speaker’s choice as the sole arbiter in the matter violates an essential attribute of the basic feature.
[op-ed snap] Karnataka conundrum
The Supreme Court’s decision to ask the parties to the political crisis in Karnataka to maintain the status quo until it examines the questions of law involved, is pragmatic and expedient.
Details Of Order
- The Speaker has been asked not to decide the issue of MLAs’ resignation or disqualification.
- An order has been passed when one of the questions to be decided is whether the court can give such a direction to the Speaker.
- It now transpires that legislators can be prevented from resigning by claiming that they have incurred disqualification.
Order of events
- It was argued in court that “the rebel MLAs are trying to avoid disqualification by tendering resignations.”
- This is astounding, as the penalty for defection is loss of legislative office.
- Quitting the current post before joining another party is a legal and moral obligation.
- Defection is condemnable, especially if it is to bring down one regime and form another.
- But politicians cannot be tied down to parties against their will by not letting them leave even their legislative positions.
- Even if it can be argued that two MLAs had pending disqualification proceedings against them, what about the rest?
- They say they tried to meet the Speaker, but could not.
- They may have been wrong to rush to the court without getting an appointment with the Speaker, but in the few intervening days, their parties issued a whip to all MLAs to be present in the House and vote for the government.
- Converting resignation into a disqualification matter is an attempt to deny a member’s right to quit his seat in the legislature before joining another party, even if the crossing-over is a politically expedient measure.
- The logic seems to be that a disqualified member cannot become a Minister without getting elected again, whereas one who resigns can be inducted into an alternative Cabinet without being a member.
- Accepting a resignation is a simple function of being satisfied if it is voluntary, while disqualification is decided on evidence and inquiry.
- The two should not be mixed up.
- The ongoing proceedings represent an increasingly common trend in litigation on constitutional issues: the propensity of the political class to twist and stretch the law in their favour and leave it to the court to set things right.
- The Speaker already enjoys extraordinary powers under the Constitution.
- In addition to immunity from judicial scrutiny for legislative matters, such as whether a Bill is a money bill, presiding officers get to decide whether a member has incurred disqualification under the anti-defection law.
- Though the decision is subject to judicial review, many Speakers have evaded judicial scrutiny by merely not acting on disqualification matters.
- The question whether the Speaker’s inaction can be challenged in court is pending before another Constitution Bench. Telangana, Andhra Pradesh and Tamil Nadu have instances of Speakers not acting on disqualification questions for years.
- The current crisis in Karnataka has exposed a new dimension to such partisan action.
[op-ed snap] A single-party majority govt was the unique factor of the 16th Lok Sabha
Mains Paper 2: Polity | Parliament and State Legislatures – structure, functioning, conduct of business, powers & privileges and issues arising out of these.
From UPSC perspective, the following things are important:
Prelims level: Basic knowledge of working of 16th Lok Sabha.
Mains level: The news-card analyses the performance of 16th Lok Sabha, in a brief manner.
- The 16th Lok Sabha, which adjourned on 13th Feb 2019, was notable for the fact that it saw a single party take majority in the House.
- A single-party majority government was in office for the first time in 30 years—the key factor lending uniqueness to this Lok Sabha.
- It came after a long line of coalitions between 1989 and 2014.
- The 16th Lok Sabha saw a single party getting a majority with 282 seats and with the support of allies that number going up to more than 300.
In terms of performance, 16th Lok Sabha did not distinguish itself much
- There were legislation like the goods and services tax (GST) Bill which were passed.
- The high point of this Lok Sabha was the midnight session of Parliament to mark the coming into effect of GST.
- There was also the Insolvency and Bankruptcy Code and the Fugitive Economic Offenders Bill that will be counted among major Bills passed by this Lok Sabha.
- These will be seen as useful in terms of setting the economy on a sound track.
- However, if one were to look at legislation passed in terms of the prime minister’s slogan of “Sabka Saath, Sabka Vikas” or inclusive development, the record of this Lok Sabha has been disappointing.
- There have been too few laws passed that make an impact such as constitutional amendments or in terms of legislation on social issues.
Very few legislations for inclusive development
- It is disappointment to thinking people that at the end of five years the government is not any closer to the dream of inclusive development.
- However, two legislations—the Muslim Women (Protection of Rights on Marriage) Bill or triple talaq Bill and the Bill to provide 10% reservation for economically weaker sections of society—could come into the above category of inclusive.
- But experts would contend that these are rather controversial.
- The former deals with a civil issue which is marriage and divorce and divorcing ones’s wife by uttering talaq thrice has been made a criminal offence.
- In the case of the latter, reservations were brought in to remove social backwardness in society, or empowering those kept out of the power system.
- With the 10% reservation for economically backward sections of society, the government has moved away from the fundamental precept for which reservations were conceived in the first place.
Trend of disruption of house continued
- Another thing we saw in this Lok Sabha is the trend of disruptions that has continued from the past few Lok Sabha sessions.
- In fact, it was seen to have become worse in the 16th Lok Sabha.
- Some sessions of the current Lok Sabha were completely lost to disruptions.
- Last year’s budget was passed without any discussion.
- Usually the finance Bill is something on which there is debate and discussion. Members suggest or move amendments.
- But last year, the budget was not subject to scrutiny.
No dialogue between the ruling party and the opposition
- The responsibility of ensuring that the House runs and business is conducted rests on the ruling party.
- Unfortunately, in this Lok Sabha, there was no dialogue between the ruling party and the opposition.
- We have seen leaders in the past like Indira Gandhi, who had scant respect for the opposition, reach out to them to ensure the House runs smoothly.
- There would be a dialogue with the opposition and, as a result, there would be cooperation on important legislation getting passed.
- The opposition parties would be given time to speak.
- The opposition, too, would do their research, and put the government on the mat.
- In the current Lok Sabha, there is an impression of a complete breakdown of dialogue between the ruling party and the opposition.
- There is an impression that the government does not want debate or discussion.
- The ruling party has to be sensitive to the grievances of the opposition.
Adjournment: An adjournment suspends the work in a sitting for a specified time, which may be hours, days or weeks. In this case, the time of reassembly is specified. An adjournment only terminates a sitting and not a session of the House. The power of adjournment lies with the presiding officer of the House.
Adjournment Sine Die: Adjournment sine die means terminating a sitting of Parliament for an indefinite period. In other words, when the House is adjourned without naming a day for reassembly, it is called adjournment sine die. The power of adjournment sine die lies with the presiding officer of the House.
Prorogation: Prorogation means the termination of a session of the House by an order made by the President under article 85(2)(a) of the Constitution. Prorogation terminates both the sitting and session of the House. Usually, within a few days after the House is adjourned sine die by the presiding officer, the President issues a notification for the prorogation of the session. However, the President can also prorogue the House while in session.
Dissolution: A dissolution ends the very life of the existing House, and a new House is constituted after general elections are held. Rajya Sabha, being a permanent House, is not subject to dissolution. Only the Lok Sabha is subject to dissolution.
Note: When the Lok Sabha is dissolved, all business including bills, motions, resolutions, notices, petitions and so on pending before it or its committees lapse.
[op-ed snap] Council conundrum: on States having a Legislative Council
Mains Paper 2: Polity | Parliament & State Legislatures – structure, functioning, conduct of business, powers & privileges & issues arising out of these
From UPSC perspective, the following things are important:
Prelims level: Constitutional articles related to Legislative council
Mains level: Debate surrounding the establishment of legislative councils in states
Odisha’s plan to have a legislative council
- Odisha wants to join the group of States that have an Upper House
- The State Cabinet has approved a 49-member Legislative Council after accepting the report of a committee set up in 2015 to study the functioning of the second chamber in other States and make recommendations
The process of setting up a state council
- Under Article 169 of the constitution, Parliament may by law create or abolish the second chamber in a state if the Legislative Assembly of that state passes a resolution to that effect by a special majority
- Thereafter, Parliament has to enact a law to create it
Advantages of having an Upper House
- An Upper House provides a forum for academicians and intellectuals, who are arguably not suited for the rough and tumble of electoral politics
- It also provides a mechanism for a more sober and considered appraisal of legislation that a State may pass
Arguments against having a council in states
- Rather than fulfilling the lofty objective of getting intellectuals into the legislature, the forum is likely to be used to accommodate party functionaries who fail to get elected
- It is also an unnecessary drain on the exchequer
- Today, legislatures draw their talent both from the grassroots level and the higher echelons of learning. There are enough numbers of doctors, teachers and other professionals in most political parties today
- If there was any real benefit in having a Legislative Council, all States in the country should, and arguably would have a second chamber
- The fact that there are only seven such Councils suggests the lack of any real advantage
Comparison with Rajya Sabha
- The Rajya Sabha’s represents the States rather than electoral constituencies
- It is also a restraining force against the dominance of elected majorities in legislative matters
- Legislative Councils are subject to varied and inconclusive discussions around their creation, revival and abolishment
- Given all this, Odisha’s proposal may give the country at large an opportunity to evolve a national consensus on Legislative Councils
Odisha to get Legislative Council
Mains Paper 2: Polity| Indian Constitution- historical underpinnings, evolution, features.
From UPSC perspectives, the following things are important
Prelims Level: Article 169 of the Constitution
Mains Level: Need for a Legislative Council
Odisha to get a Legislative Council
- Odisha is all set to get a Legislative Council like several other States in the country.
- The proposed Council will have 49 members, which is one-third of the 147-member State Assembly.
- The State will have to spend ₹35 crore annually for the Council, the members of which will get salary and allowance as given to the members of the Legislative Assembly.
- The Odisha government had set up a committee in 2015 to study the Legislative Councils in other States and recommend for establishment of one in the State.
- Article 169 of the Constitution of India provides for the establishment of a Vidhan Parishad.
- The Vidhan Parishad or Legislative Council is the upper house in those states of India that have a bicameral legislature.
- As of 2017, seven (7) (out of twenty-nine) states have a Legislative Council viz.
- Andhra Pradesh
- Jammu and Kashmir
- Uttar Pradesh
- Each Member of the Legislative Council (MLC) serves for a six-year term, with terms staggered so that the terms of one third of a council’s membership expire every two years.
- This arrangement parallels that for the Rajya Sabha, the upper house of the Parliament of India.
- MLCs must be citizens of India, at least 30 years old, mentally sound, not an insolvent.
- He must be registered on the voters’ list of the state for which he or she is contesting an election.
- He or she may not be a Member of Parliament at the same time.
Size of the House
- The size of the Vidhan Parishad cannot be more than one third of the membership of the Vidhan Sabha.
- However, its size cannot be less than 40 members (except in Jammu and Kashmir, where there are 36 by an Act of Parliament.)
Elections of Members
They are elected by local bodies, legislative assembly, governor, graduates, teacher, etc. MLCs are chosen in the following manner:
- One third are elected by members of local bodies such as municipalities, gram sabhas/gram panchayats, panchayat samitis and Zila Parishad.
- One third are elected by members of Legislative Assemblies of the State from among the persons who are not members of the 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 service.
- One twelfth are elected by persons who are graduates of three years’ standing residing in that state.
- One twelfth are elected by persons engaged for at least three years in teaching in educational institutions within the state not lower than secondary schools, including colleges and universities.
Why need Legislative Council?
- VP has no powers in terms of passing bills; be it money bills or ordinary bills, unlike Rajya Sabha which has equal powers as that of Lok Sabha in terms of Ordinary bills and Amendment bills.
- This is the reason, it is generally optional to have Vidhan Parishad.
- The purpose of having a bicameral legislature is to re-check the decisions taken by the lower house.
- Even though the upper house has no power to totally reject the bill (even if it rejects, the state assembly can go ahead with the bill after governor’s approval), it can delay the bill for some time.
- The delay will be the time given to the assembly to revise its decision and make any changes to the proposed bill.
- It will cool down the rush of the hour feeling in the popularly elected house and paves way for much rational thoughts.
- As there are no powers for Vidhan Parishad to block any bills, there is not much harm in having such a house.
- The Council has no powers to advise a bill passed in the Assembly.
- It can only delay the passage of the bill for 3 months in the first instance and for one month in the second.
- There is no provision of joint sitting as in case of disagreement in Parliament over ordinary bills.
- In the ultimate analysis, the Legislative Council is a dilatory chamber so far as ordinary legislation is concerned.
- It can delay the passage of the bill maximum for a period of four months.