Removal of Governors: What does the law say?

June 19th, 2014 No comments

In the last few weeks, after the 16th Lok Sabha election, there has been some debate around powers of the central government to remove Governors.  News reports have suggested that the central government is seeking resignations of Governors, who were appointed by the previous central government.  In this blog, we briefly look at the key constitutional provisions, the law laid down by the Supreme Court, and some recommendations made by different commissions that have examined this issue.

What does the Constitution say?

As per Article 155 and Article 156 of the Constitution, a Governor of a state is an appointee of the President, and he or she holds office “during the pleasure of the President”.  If a Governor continues to enjoy the “pleasure of the President”, he or she can be in office for a term of five years.  Because the President is bound to act on the aid and advice of the Council of Ministers under Article 74 of the Constitution, in effect it is the central government that appoints and removes the Governors. “Pleasure of the President” merely refers to this will and wish of the central government.

The Supreme Court’s interpretation

In 2010, a constitutional bench of the Supreme Court interpreted these provisions and laid down some binding principles (B.P. Singhal v. Union of India). In this case, the newly elected central government had removed the Governors of Uttar Pradesh, Gujarat, Haryana and Goa in July, 2004 after the 14th Lok Sabha election. When these removals were challenged, the Supreme Court held:

  1. The President, in effect the central government, has the power to remove a Governor at any time without giving him or her any reason, and without granting an opportunity to be heard.
  2. However, this power cannot be exercised in an arbitrary, capricious or unreasonable manner.  The power of removing Governors should only be exercised in rare and exceptional circumstances for valid and compelling reasons.
  3. The mere reason that a Governor is at variance with the policies and ideologies of the central government, or that the central government has lost confidence in him or her, is not sufficient to remove a Governor.  Thus, a change in central government cannot be a ground for removal of Governors, or to appoint more favourable persons to this post.
  4. A decision to remove a Governor can be challenged in a court of law.  In such cases, first the petitioner will have to make a prima facie case of arbitrariness or bad faith on part of the central government.  If a prima facie case is established, the court can require the central government to produce the materials on the basis of which the decision was made in order to verify the presence of compelling reasons.

In summary, this means that the central government enjoys the power to remove Governors of the different states, as long as it does not act arbitrarily, without reason, or in bad faith.

Recommendations of Various Commissions

Three important commissions have examined this issue.

The Sarkaria Commission (1988) recommended that Governors must not be removed before completion of their five year tenure, except in rare and compelling circumstances.  This was meant to provide Governors with a measure of security of tenure, so that they could carry out their duties without fear or favour.  If such rare and compelling circumstances did exist, the Commission said that the procedure of removal must allow the Governors an opportunity to explain their conduct, and the central government must give fair consideration to such explanation.  It was further recommended that Governors should be informed of the grounds of their removal.

The Venkatachaliah Commission (2002) similarly recommended that ordinarily Governors should be allowed to complete their five year term.  If they have to be removed before completion of their term, the central government should do so only after consultation with the Chief Minister.

The Punchhi Commission (2010) suggested that the phrase “during the pleasure of the President” should be deleted from the Constitution, because a Governor should not be removed at the will of the central government; instead he or she should be removed only by a resolution of the state legislature.

The above recommendations however were never made into law by Parliament.  Therefore, they are not binding on the central government.

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Legislative performance of State Assemblies

May 27th, 2014 No comments

As the dust settles around the 16th Lok Sabha, attention must now shift to the state assemblies, some of which have been newly constituted like Rajasthan, Chhattisgarh, Madhya Pradesh, Odisha, Andhra Pradesh and the few that will go into elections in the next few months like Maharashtra and Haryana. There are 30 state legislative assemblies not including the newly formed state of Seemandhara. In our federal structure, laws framed by the state assemblies are no less important and deserve the same diligence and debate as laws made by Parliament.

A brief look in to the performance of some of our state assemblies reveals that these institutions which form the cornerstones of our democracy need some serious attention.

State Assemblies: business hours

The current Haryana Legislative Assembly that comes to the end of its five year term in October this year has held 10 sessions since 2009 till March 2014, meeting for a total of 54 days – an average of 11 days per year.

In comparison, the Lok Sabha sat for an average of 69 days each year from 2009 to 2014. Among state assemblies, only Nagaland and Arunachal Pradesh sat for fewer days than Haryana. In the same period the Kerala Assembly sat for an average of 50 days per year, while Tamil Nadu Assembly sat for 44 days.

In its previous term, the Gujarat Legislative Assembly sat for a total of 157 days – an average of 31 days each year. Similarly, the current Goa Legislative Assembly sat for 24 days in 2012 and for 39 days in 2013. Over the last 10 years, the Assembly sat for an average of 26 days a year.  It recorded the highest number of sitting days in the last 10 years, at 39 days.

Law making in the states

In most states, Bills are passed with little or no discussion. Most Bills are introduced and passed on the last day of each session, which gives Members hardly any opportunity to examine or discuss legislation in detail. Unlike Parliament, where most Bills are referred to a department related standing committee which studies the Bill in greater detail, in most states such committees are non-existent.  The exceptions are Kerala which has constituted subject committees for this purpose and states like Goa and Himachal Pradesh where Select Committees are constituted for important Bills.

The current Haryana Assembly has passed 129 Bills, all of which were passed on the same day as they were introduced. Upto 23 Bills were passed on a single day, which left hardly any time for substantial discussion.

In the twelfth Gujarat Assembly, over 90% of all Bills were passed on the same day as they were introduced. In the Budget Session of 2011, 31 Bills were passed of which 21 were introduced and passed within three sitting days.

Of the 40 Bills passed by the Goa Assembly till May 2013, three Bills were referred to Select Committees. Excluding Appropriation Bills, the Assembly passed 32 Bills, which were taken up together for discussion and passing in five days. Almost all Bills were passed within three days of introduction. On average, each Bill was discussed for four minutes.

In 2012, the West Bengal Legislative Assembly passed a total of 39 Bills, including Appropriation Bills.  Most Bills were passed on the same day they were introduced in the Assembly.  In 2011, a total of 23 Bills were passed. On average, five Members participated in the discussions on each Bill. In 2012, the Delhi Legislative Assembly passed 11 Bills. Only one of the 11 Bills was discussed for more than 10 minutes. The performance of the Chhattisgarh and Bihar Vidhan Sabhas follow the same pattern.

Over the last few years, some assemblies such as Andhra Pradesh, Rajasthan and Haryana have taken some positive steps which include setting up subject committees and permitting live telecast of Assembly proceedings.

Every legislator- in Parliament and the states – is accountable to his voter. Weak democratic institutions deprive legislators of their right to oversee the government as enshrined in the Constitution. Inadequate number of sitting days, lack of discussion on Bills, and passing of the Budget and demands for grants without discussion are symptoms of institutional ennui and do not do justice to the enormous import of these legislative bodies.

Serious thought and public debate is needed to reinvigorate these ‘temples of democracy’ and provide elected representatives with the opportunity to exercise their right to legislative scrutiny, hold government to account, and represent their constituents.

16वीं लोकसभा- मौके हैं तो मुश्किलें भी

May 20th, 2014 No comments

हम सबने यह देखा है कि भारतीय संसदीय इतिहास में 15वीं लोकसभा का कार्यकाल सबसे निराशाजनक में से एक रहा। कमोबेश निर्धारित समय का 40 फीसद बाधित रहा। पूर्ण लोकसभा के कार्यकाल में सबसे कम बिल पारित हुए। इससे न केवल सरकार के विधायी कार्य गंभीर रूप से बाधित हुए बल्कि अपने निर्वाचिकों का प्रतिनिधित्व करते हुए हमारे सांसद सरकार को जवाबदेह बनाने के मौके से भी वंचित रहे। अक्सर बाधित रहने, पेपर स्प्रे कांड, कार्यवाही का वाकआउट और लोकसभा अध्यक्ष द्वारा बार-बार व्यवस्था बनाए रखने की मनुहार करते रहने वाकयों के लिए 15वीं लोकसभा याद की जाती रही। अब जब 15वीं लोकसभा अपने कार्यकाल की समाप्ति की ओर पहुंच चुकी है, तो ऐसा लगता है कि यह महत्वपूर्ण संस्था अपनी साख और विश्वसनीयता खोती दिख रही है। ऐसे में 16वीं लोकसभा से इसकी साख और विश्वसनीयता बरकरार रखने की लोगों की अपेक्षाएं और आकांक्षाएं ज्यादा बढ़ जाती हैं।

विधायी एजेंडा

राज्यसभा में मौजूदा समय में 60 बिल लंबित हैं। इनमें राइट्स ऑफ पर्सन्स विद डिसएबिलिटीज बिल भी शामिल है। लोगों को विशिष्ट पहचान संख्या जारी करने के लिए स्थापित किए जाने वाले राष्ट्रीय पहचान प्राधिकरण संबंधी नेशनल आइडेंटीफिकेशन अथॉरिटी ऑफ इंडिया बिल और भ्रष्टाचार को रोकने के लिए भ्रष्टाचार निरोधक (संशोधन) बिल भी लंबित हैं। इनमें से कई बिलों के अपने खास महत्व हैं और ये बड़ी संख्या में लोगों को प्रभावित करते हैं। नई गठित लोकसभा को इन बिलों को पारित करने को अपनी प्राथमिकता में लेना होगा।

इसके अतिरिक्त भ्रष्टाचार को रोकने संबंधी बिलों का एक पूरा समूह है जिसे पूर्व की लोकसभा में सिरे नहीं चढ़ाया जा सका। भ्रष्टाचार से निपटने के लिए संसद में पेश किए गए इन नौ बिलों में से केवल तीन ही दोनों सदनों से पारित किए जा सके हैं। बचे हुए छह बिल सिटिजन चार्टर, इलेक्ट्रॉनिक सर्विस डिलीवरी, बेनामी ट्रांजैक्शन, सरकारी खरीदफरोख्त, ज्युडिशियल स्टैंडर्ड और प्रीवेंशन ऑफ ब्राइबेरी ऑफ फॉरेन ऑफिशियल लैप्स हो चुके हैं। वित्तीय और आर्थिक क्षेत्रों से जुड़े कुछ अहम बिल जैसे जीएसटी बिल, डायरेक्ट कोड बिल, माइक्रोफाइनेंस बिल और माइंस व मिनरल्स बिल पिछली लोकसभा से नहीं पारित कराए जा सके।

संसद को मजबूती

हमारे प्रतिनिधि लोकतंत्र में चुने गए प्रतिनिधि अपने मतदाताओं के प्रति जवाबदेह होते हैं। अपने वर्तमान स्वरूप में एंटी डिफेक्शन लॉ हमारे लोकतंत्र की स्वत: स्फूर्त प्रक्रिया चेक एंड बैलेंस को कमजोर करता है। इस बिल का मकसद सरकार की अस्थिरता को कम करना था, लेकिन यह सांसदों के उनके निर्वाचकों के हितों की आवाज उठाने की स्वतंत्रता को सीमित करता दिखता है। 15वीं लोकसभा में करीब एक चौथाई बिल 30 मिनट के भीतर ही पारित हो गए जिसका आशय यह है कि व्यावहारिक रूप से इनको लेकर कोई बहस नहीं हुई। 25 फीसद से कम बिलों पर तीन घंटे से अधिक की बहस हुई। यह संकेत देता है कि महत्वपूर्ण मसलों से संबंधी बिल अक्सर अपर्याप्त बहस और समझ के ही पारित हो रहे हैं। नई लोकसभा को अपने सांसदों को उचित मौके और पर्याप्त समय देना चाहिए जिससे वे किसी बिल को लेकर अपनी राय जाहिर कर सकें और बिल को पारित करने से पहले उसके विभिन्न प्रावधानों के निहितार्थ सामने आ सकें। अधिकांश बिल ध्वनिमत से पारित हो जाते हैं। इसमें किसी को यह पता नहीं चलता कि इस पर प्रत्येक सांसद ने कैसे और किस तरह वोट किया। किसी बिल पर सांसदों द्वारा किए गए वोट को सार्वजनिक किया जाना चाहिए। इससे सांसदों और संसद की कार्यशैली में बहुत बड़ी पारदर्शिता और जवाबदेही लायी जा सकती है। कुछ अन्य सीमाएं भी अस्तित्व में हैं जो संसद को ज्यादा प्रभावी होने के आड़े आती हैं। इनमें सांसदों को उनके संसदीय उत्तरदायित्व निभाने के लिए रिसर्च की अपर्याप्त मदद, एक कमजोर कमेटी प्रणाली जिसकी कार्यप्रणाली पारदर्शी नहीं है, विधायी जांच और फीडबैक से पहले की प्रक्रिया की कमी, सदन में मामलों को उठाने के लिए सांसदों के पास पर्याप्त समय की अनुपलब्धता आदि शामिल हैं। इन बाधाओं को दूर करके नई गठित लोकसभा के सदस्य अपना उत्तरदायित्व प्रभावी तरीके से संपन्न कर पाएंगे।

संसद उन कुछ चुनिंदा संस्थाओं में है जिसे हमारे पूर्वजों ने इस भरोसे के साथ हमें सौंपा है जिस पर हम तर्कसंगत तरीके से गर्व कर सकें। 16वीं लोकसभा के हमारे प्रतिनिधियों के पास अब उस दायित्व को पूरा करने के लिए वह मौका और चुनौती है जिसकी मदद से हम सब अधिक विचारात्मक और सृजनात्मक लोकतंत्र की ओर आगे बढ़ सकें।

- This article was published in Dainik Jagran on May 18, 2014.

Brief overview of the performance of the 12th Haryana Legislative Assembly

May 7th, 2014 No comments

The term of the 12th Haryana Legislative Assembly ends in October this year.  We look at the work done by the 12th Haryana Assembly during its term from 2009 to 2014 to assess its performance on metrics such as the number of sittings, members’ attendance, and legislative business.

Performance of the Assembly

Since the beginning of its tenure, which commenced in October 2009, the Assembly has held ten sessions. Till March 2014, the Assembly had met for a total of 54 days – an average of 11 days per year.  In comparison, the Lok Sabha sat for an average of 69 days each year from 2009 to 2014.  Among state assemblies, only Nagaland and Arunachal Pradesh sat for fewer days than Haryana. In the same period the Kerala Assembly sat for an average of 50 days per year , while Tamil Nadu Assembly sat for 44 days.

sitting days haryana

The average attendance among Haryana MLAs stood at 89% for the whole term, with six members registering 100% attendance.

 

 Attendance haryana

 

From the beginning of its term in 2009 till March 2014, the Assembly passed 129 Bills.  All Bills were discussed and passed on the same day as they were introduced. None of the Bills were referred to any Committee.

Participation in the general discussion on the Budget has recovered since 2012, when the Budget was discussed for around three hours with eight Members participating.. In 2013, discussion took place for eight hours and forty minutes with 31 members participating. In 2014, the Assembly discussed the Budget for four hours and fifty minutes with 21 Members participating.

 Budget discussion

Key laws passed by the 12th Assembly include the Haryana State Commission for Women Bill, the Haryana Prohibition of Ragging in Educational Institution Bill and the Punjab Agricultural Produces Markets (Haryana Amendment) Bill.

EU bans imports of Alphonso mangoes: Is India’s biosecurity mechanism rigorous enough?

April 29th, 2014 No comments

Recent news reports indicate that the European Union (EU) has banned imports of Alphonso mangoes and four vegetables from India due to the presence of harmful pests and a lack of certification before export.  The ban will be effective between May 1, 2014 and December 2015.  It has been suggested that the ban could impact the export of nearly 16 million mangoes from India, the market for which is worth nearly £6 million a year in a country like the United Kingdom. In this context, it may be useful to examine the regulation of agricultural biosecurity in India, particularly with respect to imports and exports of such agricultural produce.

Currently, two laws, the Destructive Insects and Pests Act, 1914 and the Livestock Importation Act, 1898, regulate the import and export of plants and animals with a view to control pests and diseases.  Under the laws, the authorities ensure that infectious diseases and pests do not cause widespread damage to the environment, crops, agricultural produce and human beings, i.e. the agricultural biosecurity of a country.  Common examples of pests and diseases have been the Banana bunchy top virus which stunts banana plants and stops production of fruit while another is the Avian Influenza, which caused extensive death of poultry and led to human deaths as well.

Under the existing Acts, different government departments and government-approved bodies are responsible for regulating imports and certifying exports to ensure that there are no threats to agricultural biosecurity.  The Department of Agriculture keeps a check on pests and diseases arising from plants and related produce, such as mangoes and vegetables, while the Department of Animal Husbandry monitors diseases relating to animals and meat products.  The Agricultural and Processed Food Products Export Development Authority (APEDA) certifies exports of different commodities related to plants and animals.  Various government committees have highlighted the ineffectiveness of the existing system due to its piecemeal approach and have recommended an integrated system to handle biosecurity issues.  It has also been suggested that the existing laws have not kept up with developments in agriculture and are inadequate to deal with the emergence of trans-boundary diseases that pose threats to human, animal and plant safety.

The Agricultural Biosecurity Bill, 2013, pending in Parliament seeks to replace these laws and establish a national authority, the Agricultural Biosecurity Authority of India (ABAI), to regulate biosecurity issues related to plants and animals.  ABAI shall be responsible for: (i) regulating the import and export of plants, animals and related products, (ii) implementing quarantine measures in case of the existence of pests, (iii) regulating the inter-state spread of pests and diseases relating to plants and animals, and (iv) undertaking regular surveillance of pests and diseases.  Under the Bill, exports of plants, animals and related products will only be allowed once ABAI has issued a sanitary or phytosanitary certificate in accordance with the destination country’s requirements. The penalty for exporting goods without adequate certification from ABAI is imprisonment upto two years and and a fine of Rs 2 lakh. The proposed ABAI will also meet India’s obligations to promote research and prevent pests and diseases under the International Plant Protection Convention and the Office International des Epizooties. A PRS analysis of various aspects of the Bill can be found here.

The Bill will lapse with the dissolution of the 15th Lok Sabha.  It remains to be seen how the incoming government in the 16th Lok Sabha will approach biosecurity issues to prevent incidents like the EU ban on imports of Indian fruits and vegetables in the future.

Ordinances promulgated during different Lok Sabhas

April 21st, 2014 No comments

Recently, the President repromulgated the Securities Laws (Amendment) Ordinance, 2014, which expands the Securities and Exchange Board Act’s (SEBI) powers related to search and seizure and permits SEBI to enter into consent settlements.  The President also promulgated the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014, which establishes special courts for the trial of offences against members of Scheduled Castes and Scheduled Tribes.  With the promulgation of these two Ordinances, a total of 25 Ordinances have been promulgated during the term of the 15th Lok Sabha so far.

Ordinances are temporary laws which can be issued by the President when Parliament is not in session.  Ordinances are issued by the President based on the advice of the Union Cabinet. The purpose of Ordinances is to allow governments to take immediate legislative action if circumstances make it necessary to do so at a time when Parliament is not in session.

Often though Ordinances are used by governments to pass legislation which is currently pending in Parliament, as was the case with the Food Security Ordinance last year. Governments also take the Ordinance route to address matters of public concern as was the case with the Criminal Law (Amendment) Ordinance, 2013, which was issued in response to the protests surrounding the Delhi gang rape incident.

Since the beginning of the first Lok Sabha in 1952, 637 Ordinances have been promulgated. The graph below gives a breakdown of the number of Bills passed by each Lok Sabha since 1952, as well as the number of Ordinances promulgated during each Lok Sabha.

Ordinances

Ordinance Making Power of the President

The President has been empowered to promulgate Ordinances based on the advice of the central government under Article 123 of the Constitution. This legislative power is available to the President only when either of the two Houses of Parliament is not in session to enact laws.  Additionally, the President cannot promulgate an Ordinance unless he ‘is satisfied’ that there are circumstances that require taking ‘immediate action’.

Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They also cease to operate in case resolutions disapproving the Ordinance are passed by both Houses.

History of Ordinances

Ordinances were incorporated into the Constitution from Section 42 and 43 of the Government of India Act, 1935, which authorised the then Governor General to promulgate Ordinances ‘if circumstances exist which render it necessary for him to take immediate action’. Interestingly, most democracies including Britain, the United States of America, Australia and Canada do not have provisions similar to that of Ordinances in the Indian Constitution. The reason for an absence of such a provision is because legislatures in these countries meet year long.

Ordinances became part of the Indian Constitution after much debate and discussion. Some Members of the Constituent Assembly emphasised that the Ordinance making power of the President was extraordinary and issuing of Ordinances could be interpreted as against constitutional morality. Some Members felt that Ordinances were a hindrance to personal freedom and a relic of foreign rule. Others argued that Ordinances should be left as a provision to be used only in the case of emergencies, for example, in the breakdown of State machinery. As a safeguard, Members argued that the provision that a session of Parliament must be held within 6 months of passing an Ordinance be added.

Repromulgation of Ordinances

Ordinances are only temporary laws as they must be approved by Parliament within six weeks of reassembling or they shall cease to operate. However, governments have promulgated some ordinances multiple times. For example, The Securities Laws (Amendment) Ordinance, 2014 was recently repromulgated for the third time during the term of the 15th Lok Sabha. Repromulgation of Ordinances raises questions about the legislative authority of the Parliament as the highest law making body.

In the 1986 Supreme Court judgment of D.C. Wadhwa vs. State of Bihar, where the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate Ordinances, the Constitution Bench headed by Chief Justice P.N. Bhagwati observed:

“The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be “perverted to serve political ends”. It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time.”

Repromulgation

Ordinances by governments
 
Thanks to Vinayak Rajesekhar for helping with research on this blog post.

Model Code of Conduct and the 2014 General Elections

April 14th, 2014 No comments

Recently, the Election Commission has recommended postponing certain policy decisions of the government related to natural gas pricing, and notifying ecologically sensitive areas in the Western Ghats, by invoking the Model Code of Conduct (MCC).  It has also censured several candidates for violating the MCC.  In light of these recent events, we outline the key features of the MCC below.

What is the Model Code of Conduct and who does it apply to?

The MCC is a set of guidelines issued by the Election Commission to regulate political parties and candidates prior to elections, to ensure free and fair elections. This is in keeping with Article 324 of the Constitution, which gives the Election Commission the power to supervise elections to the Parliament and state legislatures.

The MCC is operational from the date that the election schedule is announced till the date that results are announced.  Thus, for the general elections this year, the MCC came into force on March 5, 2014, when the election schedule was announced, and will operate till May 16, 2014, when the final results will be announced.

How has the Model Code of Conduct evolved over time?

According to the Press Information Bureau, a form of the MCC was first introduced in the state assembly elections in Kerala in 1960.  It was a set of instructions to political parties regarding election meetings, speeches, slogans, etc.

In the 1962 general elections to the Lok Sabha, the MCC was circulated to recognised parties, and state governments sought feedback from the parties.  The MCC was largely followed by all parties in the 1962 elections and continued to be followed in subsequent general elections.

In 1979, the Election Commission added a section to regulate the ‘party in power’ and prevent it from gaining an unfair advantage at the time of elections.  In 2013, the Supreme Court directed the Election Commission to include guidelines regarding election manifestos, which it has included in the MCC for the 2014 general elections.

What are the key provisions of the Model Code of Conduct?

The MCC contains eight provisions dealing with general conduct, meetings, processions, polling day, polling booths, observers, party in power, and election manifestos.  Major provisions of the MCC are outlined below.

  • General Conduct:  Criticism of political parties must be limited to their policies and programmes, past record and work.  Activities such as:  (a) using caste and communal feelings to secure votes,  (b) criticising candidates on the basis of unverified reports,  (c) bribing or intimidation of voters, and (d) organising demonstrations or picketing outside houses of persons to protest against their opinions, are prohibited.
  • Meetings:  Parties must inform the local police authorities of the venue and time of any meeting in time to enable the police to make adequate security arrangements.
  • Processions:  If two or more candidates plan processions along the same route, organisers must establish contact in advance to ensure that the processions do not clash.  Carrying and burning effigies representing members of other political parties is not allowed.
  • Polling day:  All authorised party workers at polling booths should be given identity badges.  These should not contain the party name, symbol or name of the candidate.
  • Polling booths:  Only voters, and those with a valid pass from the Election Commission, will be allowed to enter polling booths.
  • Observers:  The Election Commission will appoint observers to whom any candidates may report problems regarding the conduct of the election.
  • Party in power:  The MCC incorporated certain restrictions in 1979, regulating the conduct of the party in power.  Ministers must not combine official visits with election work or use official machinery for the same.  The party must avoid advertising at the cost of the public exchequer or using official mass media for publicity on achievements to improve chances of victory in the elections.  Ministers and other authorities must not announce any financial grants, or promise any construction of roads, provision of drinking water, etc.   Other parties must be allowed to use public spaces and rest houses and these must not be monopolised by the party in power.
  • Election manifestos:  Added in 2013, these guidelines prohibit parties from making promises that exert an undue influence on voters, and suggest that manifestos also indicate the means to achieve promises.

Is the Model Code of Conduct legally binding?

The MCC is not enforceable by law.  However, certain provisions of the MCC may be enforced through invoking corresponding provisions in other statutes such as the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and Representation of the People Act, 1951.

The Election Commission has argued against making the MCC legally binding; stating that elections must be completed within a relatively short time (close to 45 days),  and judicial proceedings typically take longer, therefore it is not feasible to make it enforceable by law.

On the other hand, in 2013, the Standing Committee on Personnel, Public Grievances, Law and Justice, recommended making the MCC legally binding.  In a report on electoral reforms, the Standing Committee observed that most provisions of the MCC are already enforceable through corresponding provisions in other statutes, mentioned above.  It recommended that the MCC be made a part of the Representation of the People Act, 1951.

Empowering parliamentarians

March 24th, 2014 No comments

The 15th Lok Sabha recently concluded with the worst track record on a number of indicators. In the first of a four part series in Livemint, MR Madhavan of PRS Legislative Research discusses whether one can hope for an improvement in the performance of Parliament once the 16th Lok Sabha assembles in a couple of months.

The recently concluded 15th Lok Sabha performed poorly on many parameters: few sittings, low number of Bills passed and a significant proportion passed without deliberation, the higher proportion of time wasted on disruption etc. As the 16th Lok Sabha assembles in a couple of months, the big question is whether one can hope for an improvement in its performance.

The recently concluded 15th Lok Sabha performed poorly on many parameters: few sittings, low number of Bills passed and a significant proportion passed without deliberation, the higher proportion of time wasted on disruption etc. As the 16th Lok Sabha assembles in a couple of months, the big question is whether one can hope for an improvement in its performance.

Are there structural factors that led to the low effectiveness of Parliament in the last five years? If that is true, one can then look at ways to address these factors. Two aspects come to mind immediately: the anti-defection law and the lack of recorded voting. There are three other, key, functions of Parliament that merit attention: making laws, holding the government to account for its actions and policies, and the power of the purse.

The anti-defection law was made by inserting the Tenth Schedule to the Constitution in 1985 to combat “the evil of political defections”. The provisions require every member of Parliament (MP) and of state legislative assemblies or councils (MLA or MLC) to abide by the party’s command on voting or abstaining on every vote. If a legislator fails to do so, he may be disqualified from his membership to the legislature.

The provisions apply not only to votes that affect the stability of the government, i.e., no-confidence motions and money Bills. They are applicable to all votes. Also, they are applicable to members of Rajya Sabha and legislative councils, who have no say in the formation of the government.

The effect is that each member is converted into a mere number at the beck and call of the party leadership. This goes against the basis of a representative democracy in which the elected representative is expected to act in public interest (as understood by him) which would usually be a combination of his ideology, political party membership and constituency interests. Instead, the current system forces him to blindly obey the instructions of the party leadership.

This system weakens the checks and balances inherent in parliamentary democracy. The government can get any of its policies and Bills approved by issuing a whip to its party members and through backroom deals with the leadership of other political parties. It does not need to convince individual MPs of the merits of the proposals. Thus, our system strips the incentive for an MP to understand and think through any issue, as he has to finally just obey the party. For example, in December 2012, the government had to face a vote on permitting foreign direct investment in the retail sector. The members of all political parties voted (or abstained) on party lines. Contrast this with a system without the anti-defection law such as the British Parliament, in which, the prime minister was unable to win the vote in the House of Commons on going to war in Syria, despite the government having a comfortable majority.

The irony is that the anti-defection law does not appear to be very effective in preventing defections that lead to the fall of the government. During the confidence motion in 2008, about 20 MPs defied the party whip. Also, this provision does not apply when the party leadership decides to change its affiliation—as the Dravida Munnettra Kazhagam (DMK) and Trinamool Congress did in the last two years—for a mass-defection from the coalition. Furthermore, the anti-defection law breaks the link between the elected representative and his electors. Citizens vote for their candidates on a combination of the person and the party—this is evident from the discussions on “winnability” of various candidates and the care with which parties allocate the tickets for elections.

The elected representative is accountable to his voters for his actions, and this accountability is enforced when he contests for re-election from the constituency. However, the anti-defection law provides him with an excuse for his stand on any issue—that he had to obey the party’s diktat. Compare this to the system in other democracies, such as that seen in the electoral debates in the US, where candidates have to justify their past actions on various legislative votes, often those taken decades earlier.

This brings us to a related issue—we do not have records of how MPs voted on most issues. Most motions are decided by a voice vote, with the Speaker determining whether the majority supported or rejected the motion. Though any member can challenge this decision and demand a division (recorded vote), it is rarely done. Of the 175 Bills passed in the 15th Lok Sabha (not counting Constitutional Amendment Bills), only 11 had a recorded vote. This implies that citizens do not know whether their MPs were even present in the House during the vote. This is an easy fix as every seat is provided with a voting machine. Indeed, in the British Parliament, where MPs have to physically walk out into the lobbies for their votes to be recorded, most Bills see such action.

To sum up, we need two reforms urgently: repeal the anti-defection law, and require that all Bills be passed only through recorded voting.

M.R. Madhavan is president of PRS Legislative Research.

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Ordinance making powers of the Executive in India

September 27th, 2013 No comments

In light of the decision of the union cabinet to promulgate an Ordinance to uphold provisions of the Representation of People Act, 1951, this blog examines the Ordinance making power of the Executive in India.  The Ordinance allows legislators (Members of Parliament and Members of Legislative Assemblies) to retain membership of the legislature even after conviction, if

(a)     an appeal against the conviction is filed before a court within 90 days and

(b)     the appeal is stayed by the court.

However, the Ordinance will only be promulgated after it receives the assent of the President.

I. Separation of powers between the Legislature, Executive and Judiciary

In India, the central and state legislatures are responsible for law making, the central and state governments are responsible for the implementation of laws and the judiciary (Supreme Court, High Courts and lower courts) interprets these laws.

However, there are several overlaps in the functions and powers of the three institutions.  For example, the President has certain legislative and judicial functions and the legislature can delegate some of its functions to the executive in the form of subordinate legislation.

II. Ordinance making powers of the President

Article 123 of the Constitution grants the President certain law making powers to promulgate Ordinances when either of the two Houses of Parliament is not in session and hence it is not possible to enact laws in the Parliament.[i]

An Ordinance may relate to any subject that the Parliament has the power to legislate on. Conversely, it has the same limitations as the Parliament to legislate, given the distribution of powers between the Union, State and Concurrent Lists. Thus, the following limitations exist with regard to the Ordinance making power of the executive:

i.   Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.

ii.   Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’[ii].

iii.   Parliamentary approval during session: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate.  They will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.  

Figure 1 shows the number of Ordinances that have been promulgated in India since 1990.  The largest number of Ordinances was promulgated in 1993, and there has been a decline in the number of Ordinance promulgated since then.  However, the past year has seen a rise in the number of Ordinances promulgated.

           Figure 1: Number of national Ordinances promulgated in India since 1990

Ordinances PromulgatedSource: Ministry of Law and Justice; Agnihotri, VK (2009) ‘The Ordinance: Legislation by the Executive in India when the Parliament is not in Session’; PRS Legislative Research

III. Ordinance making powers of the Governor

Just as the President of India is constitutionally mandated to issue Ordinances under Article 123, the Governor of a state can issue Ordinances under Article 213, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.  The powers of the President and the Governor are broadly comparable with respect to Ordinance making.  However, the Governor cannot issue an Ordinance without instructions from the President in three cases where the assent of the President would have been required to pass a similar Bill.[iii]

IV. Key debates relating to the Ordinance making powers of the Executive

There has been significant debate surrounding the Ordinance making power of the President (and Governor).  Constitutionally, important issues that have been raised include judicial review of the Ordinance making powers of the executive; the necessity for ‘immediate action’ while promulgating an Ordinance; and the granting of Ordinance making powers to the executive, given the principle of separation of powers.

Table 1 provides a brief historical overview of the manner in which the debate on the Ordinance making powers of the executive has evolved in India post independence.

Table 1: Key debates on the President’s Ordinance making power

Year

Legislative development

Key arguments

1970 RC Cooper vs. Union of India In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 14 of India’s largest commercial banks, held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
1975 38th Constitutional Amendment Act Inserted a new clause (4) in Article 123 stating that the President’s satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground.
1978 44th Constitutional Amendment Act Deleted clause (4) inserted by the 38th CAA and therefore reopened the possibility for the judicial review of the President’s decision to promulgate an Ordinance.
1980 AK Roy vs. Union of India In AK Roy vs. Union of India (1982) while examining the constitutionality of the National Security Ordinance, 1980, which sought to provide for preventive detention in certain cases, the Court argued that the President’s Ordinance making power is not beyond the scope of judicial review. However, it did not explore the issue further as there was insufficient evidence before it and the Ordinance was replaced by an Act. It also pointed out the need to exercise judicial review over the President’s decision only when there were substantial grounds to challenge the decision, and not at “every casual and passing challenge”.
1985 T Venkata Reddy vs. State of Andhra Pradesh In T Venkata Reddy vs. State of Andhra Pradesh (1985), while deliberating on the promulgation of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984 which abolished certain village level posts, the Court reiterated that the Ordinance making power of the President and the Governor was a legislative power, comparable to the legislative power of the Parliament and state legislatures respectively. This implies that the motives behind the exercise of this power cannot be questioned, just as is the case with legislation by the Parliament and state legislatures.
1987 DC Wadhwa vs. State of Bihar It was argued in DC Wadhwa vs. State of Bihar (1987) the legislative power of the executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law making power of the legislature.  Here, the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate ordinances, that is, it repeatedly issued new Ordinances to replace the old ones, instead of laying them before the state legislature.  A total of 259 Ordinances were re-promulgated, some of them for as long as 14 years.  The Supreme Court argued that if Ordinance making was made a usual practice, creating an ‘Ordinance raj’ the courts could strike down re-promulgated Ordinances.
Source: Basu, DD (2010) Introduction to the Constitution of India; Singh, Mahendra P. (2008) VN Shukla’s Constitution of India; PRS Legislative Research

 

This year, the following 9 Ordinances have been promulgated:

  1. The Securities Laws (Amendment) Ordinance, 2013
  2. The Readjustment of Representation of Scheduled Castes and Scheduled Tribes in Parliamentary and Assembly Constituencies Second Ordinance, 2013
  3. The Securities and Exchange Board of India (Amendment) Second Ordinance, 2013
  4. The National Food Security Ordinance, 2013
  5. The Indian Medical Council (Amendment) Ordinance, 2013
  6. The Securities and Exchange Board of India (Amendment) Ordinance, 2013
  7. The Readjustment of Representation of Scheduled Castes and Scheduled Tribes in Parliamentary and Assembly Constituencies Ordinance, 2013
  8. The Criminal Law (Amendment) Ordinance, 2013
  9. The Securities Laws (Amendment) Second Ordinance, 2013

Three of these Ordinances have been re-promulgated, i.e., a second Ordinance has been promulgated to replace an existing one.  This seems to be in violation of the Supreme Court’s decision in DC Wadhwa vs. State of Bihar.

 


Notes:

[i] With regard to issuing Ordinances as with other matters, the President acts on the advice of the Council of Ministers. While the Ordinance is promulgated in the name of the President and constitutionally to his satisfaction, in fact, it is promulgated on the advice of the Council of Ministers.

[ii] Article 123, Clause (1)

[iii]  (a) if a Bill containing the same provisions would have required the previous sanction of the President for introduction into the legislature;

(b) if the Governor would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; and

(c) if an Act of the legislature containing the same provisions would have been invalid unless it received the assent of the President.

Mahatma Gandhi National Rural Employment Guarantee Act: Review of implementation

September 23rd, 2013 No comments

In the recently concluded Monsoon Session of Parliament , the Parliamentary Standing Committee on Rural Development released a report on the implementation of the Mahatma Gandhi National Rural Development Act, 2005 (MGNREGA).  This blog provides a brief introduction to the key provisions of MGNREGA , followed by an overview of the major findings and recommendations of the Standing Committee.

I. MGNREGA: A brief introduction

A. Objectives: MGNREGA, which is the largest work guarantee programme in the world, was enacted in 2005 with the primary objective of guaranteeing 100 days of wage employment per year to rural households.  Secondly, it aims at addressing causes of chronic poverty through the ‘works’ (projects) that are undertaken, and thus ensuring sustainable development.  Finally, there is an emphasis on strengthening the process of decentralisation through giving a significant role to Panchayati Raj Institutions (PRIs) in planning and implementing these works.

B. Key features:

  • Legal right to work: Unlike earlier employment guarantee schemes, the Act provides a legal right to employment for adult members of rural households.  At least one third beneficiaries have to be women.  Wages must be paid according to the wages specified for agricultural labourers in the state under the  Minimum Wages Act, 1948, unless the central government notifies a wage rate (this should not be less than Rs 60 per day).  At present, wage rates are determined by the central government but vary across states, ranging from Rs 135 per day to Rs 214 per day.
  • Time bound guarantee of work and unemployment allowance: Employment must be provided with 15 days of being demanded failing which an ‘unemployment allowance’ must be given.
  • Decentralised planning: Gram sabhas must recommend the works that are to be undertaken and at least 50% of the works must be executed by them.  PRIs are primarily responsible for planning, implementation and monitoring of the works that are undertaken.
  • Work site facilities: All work sites should have facilities such as crèches, drinking water and first aid.
  • Transparency and accountability: There are provisions for proactive disclosure through wall writings, citizen information boards, Management Information Systems and social audits.  Social audits are conducted by gram sabhas to enable the community to monitor the implementation of the scheme.
  • Funding:  Funding is shared between the centre and the states.  There are three major items of expenditure – wages (for unskilled, semi-skilled and skilled labour), material and administrative costs.  The central government bears 100% of the cost of unskilled labour, 75% of the cost of semi-skilled and skilled labour, 75% of the cost of materials and 6% of the administrative costs.

MGNREGA was implemented in phases, starting from February 2006, and at present it covers all districts of the country with the exception of those that have a 100% urban population.  The Act provides a list of works that can be undertaken to generate employment related to water conservation, drought proofing, land development, and flood control and protection works.  Table 1 provides information regarding employment generation and expenditure under MGNREGA.

Table 1: MGNREGA: Key indicators

Year

Number of households provided employment (in crore)

Average number of person days of work per household

Total Expenditure (in lakh)

2006-07

2.10

43

8823.35

2007-08

3.39

42

15856.88

2008-09

4.51

48

27250.10

2009-10

5.25

54

37905.23

2010-11

5.49

47

39377.27

2011-12*

4.99

43

 38034.69

2012-13**

4.25

36

 28073.51

Source: Standing Committee on Rural Development; PRS. Note: *Provisional ** As on 31.01.2013

II. Findings and Recommendations of the Standing Committee on Rural Development

A. Achievements: The Standing Committee highlighted several achievements of MGNREGA in the seven years of its implementation, especially:

  • Ensuring livelihood for people in rural areas.
  • Large scale participation of women, Scheduled Castes and Scheduled Tribes (SCs/STs) and other traditionally marginalised sections of society.  SCs/STs account for 51% of the total person-days generated and women account for 47% of the total person-days generated.
  • Increasing the wage rate in rural areas and strengthening the rural economy through the creation of infrastructure assets.
  • Facilitating sustainable development, and
  • Strengthening PRIs by involving them in the planning and monitoring of the scheme.

B. Challenges: However, the Committee found several issues with the implementation of the scheme. As Table 1 (above) shows, the average number of days of employment provided to households has been lower than the mandated 100 days, and has been decreasing since 2010-11.

Key issues that the Committee raised include

  • Fabrication of job cards: While as many as 12.5 crore households have been issued job cards out of an estimated 13.8 crore rural households ( as per the 2001 census), there are several issues related to existence of fake job cards, inclusion of fictitious names, missing entries and delays in making entries in job cards.
  • Delay in payment of wages: Most states have failed to disburse wages within 15 days as mandated by MGNREGA.  In addition, workers are not compensated for a delay in payment of wages.
  • Non payment of unemployment allowances: Most states do not pay an unemployment allowance when work is not given on demand.  The non-issuance of dated receipts of demanded work prevents workers from claiming an unemployment allowance.
  • Large number of incomplete works: There has been a delay in the completion of works under MGNREGA and inspection of projects has been irregular.  Implementing agencies were able to complete only 98 lakh works out of 296 lakh works.  As Table 2 shows, a large percentage of works remain incomplete under MGNREGA and the work completion rate appears to be decreasing in recent years.

Table 2: Work completion rate

Year

Work completion rate (%)

2006-07

46.34

2007-08

45.99

2008-09

43.76

2009-10

48.94

2010-11

50.86

2011-12*

20.25

2012-13*

15.02

Total                  33.22

Source: Standing Committee on Rural Development. Note: * As on 30.01.2013

  • Other key challenges include poor quality of assets created, several instances of corruption in the implementation of MGNREGA, and insufficient involvement of PRIs.

C. Recommendations: The Committee made the following recommendations, based on its findings:

  • Regulation of job cards: Offences such as not recording employment related information in job cards and unlawful possession of job cards with elected PRI representatives and MGNREGA functionaries should be made punishable under the Act.
  • Participation of women: Since the income of female workers typically raises the standard of living of their households to a greater extent than their male counterparts, the participation of women must be increased through raising awareness about MGNREGA.
  • Participation of people with disabilities: Special works (projects) must be identified for people with disabilities; and  special job cards must be issued and personnel must be employed to ensure their participation.
  • Utilisation of funds:  The Committee found that a large amount of funds allocated for MGNREGA have remained unutilised.  For example, in 2010-11, 27.31% of the funds remained unutilised.  The Committee recommends that the Department of Rural Development should analyse reasons for poor utilisation of funds and take steps to improve the same.  In addition, it should initiate action against officers found guilty of misappropriating funds under MGNREGA.
  • Context specific projects and convergence: Since states are at various stages of socio-economic development, they have varied requirements for development.  Therefore, state governments should be allowed to undertake works that are pertinent to their context.  There should be more emphasis on skilled and semi-skilled work under MGNREGA.  In addition, the Committee recommends a greater emphasis on convergence with other schemes such as the National Rural Livelihoods Mission, National Rural Health Mission, etc.
  • Payment of unemployment allowance: Dated receipts for demanded work should be issued so that workers can claim unemployment allowance.  Funds for unemployment allowance should be met by the central government.
  • Regular monitoring: National Level Monitors (NLMs) are deployed by the Ministry of Rural Development for regular and special monitoring of MGNREGA and to enquire into complaints regarding mis-utilisation of funds, etc.  The Committee recommends that the frequency of monitoring by NLMs should increase and appropriate measures should be taken by states based on their recommendations.  Additionally, social audits must mandatorily be held every six months.  The Committee observes that the performance of MGNREGA is better in states with effective social audit mechanisms.
  • Training of functionaries: Training and capacity building of elected representatives and other functionaries of PRIs must be done regularly as it will facilitate their involvement in the implementation of MGNREGA.