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Posts Tagged ‘legislative oversight’

Monsoon Session 2018: What to Expect

July 17th, 2018 No comments

The Monsoon Session of Parliament begins tomorrow and will continue till August 10, 2018.  It is scheduled to have 18 sittings during this period.  This post outlines what is in store in the upcoming session.

The session has a packed legislative agenda.  Presently, there are 68 Bills pending in Parliament.  Of these, 25 have been listed for consideration and passage.  In addition, 18 new Bills have been listed for introduction, consideration, and passage.  This implies that Parliament has the task of discussing and deliberating 43 Bills listed for passage in an 18-day sitting period.  Key among them include the Bills that are going to replace the six Ordinances currently in force.  The government is going to prioritize the passage of these six Bills to ensure that the Ordinances do not lapse.

Besides the heavy legislative agenda, the session will also witness the election of a new Deputy Chairman for the Upper House.  Former Deputy Chairman, P.J. Kurien’s term ended on July 1, 2018.  The upcoming election has generated keen interest, and will be closely watched.  The role of the Deputy Chairman is significant, as he quite frequently oversees the proceedings of the House.  The Deputy Chairman is responsible for maintaining order in the house and ensuring its smooth functioning.  The preceding Budget Session was the least productive since 2000 due to disruptions.  Rajya Sabha spent only 2 hours and 31 minutes discussing legislative business, of which 3 minutes were spent on government Bills.  In this context, the role of the Deputy Chairman is important in ensuring productivity of the house.

Another key player in ensuring productivity of Parliament is the Speaker of the Lower House.  In Budget Session 2018, the Speaker was unable to admit a no confidence motion.  This failure was based on her inability to bring the house in order.  Repeated disruptions led to the passage of only two Bills in Lok Sabha.  The same session also saw disruptions by certain MPs demanding special category status for Andhra Pradesh.  Between the last session and the upcoming session, a key development includes the resignation of five YRSC members, reducing the strength of MPs from Andhra Pradesh to 20.  In light of this, one has to wait to see whether the demand for special category status for Andhra Pradesh will be raised again.

Coming to the legislative agenda, of the six Bills that aim to replace Ordinances, key include: (i) the Fugitive Economic Offenders Bill, 2018, (ii) the Criminal Law (Amendment) Bill, 2018, (iii) the Insolvency and Bankruptcy Code (Amendment) Bill, 2018, and (iv) the Commercial Courts (Amendment) Bill, 2018.  The Fugitive Economic Offenders Bill aims to confiscate the properties of people who have absconded the country in order to avoid facing prosecution for economic offences.  The Fugitive Economic Offenders Bill, 2018 was introduced in Lok Sabha in March 2018.  Subsequently, an Ordinance was promulgated on April 21, 2018.  The Criminal Law (Amendment) Bill increases the punishment for rape of women, and introduces death penalty for rape of minor girls below the age of 12.  The Insolvency and Bankruptcy (Amendment) Bill aims to address existing challenges in the Insolvency and Bankruptcy Code.  It amends the Code to include homebuyers as financial creditors in the insolvency resolution process.

There are some Bills that have been passed by one house but are pending in the other, and some that are pending in both the houses.  These cut across various sectors, including social reform, education, health, consumer affairs, and transport.  Some key reformative legislation currently pending include the Transgender Persons (Protection of Rights) Bill, 2016, and the Triple Talaq Bill.  The Triple Talaq Bill, passed on the day of introduction in Lok Sabha, is pending in Rajya Sabha.  When introduced in Rajya Sabha, the opposition introduced a motion to refer the Bill to a Select Committee.  In the forthcoming session, it remains to be seen whether the Bill will be sent to a Select Committee for detailed scrutiny or will be passed without reference to a Committee.  Other pending legislation include the the National Medical Commission Bill, 2017, the RTE (Second Amendment) Bill, 2017, the Consumer Protection Bill, 2018 and the Specific Relief (Amendment) Bill, 2017.

Of the 18 new Bills listed for introduction, all have been listed for consideration and passage as well.  These include the Trafficking of Persons Bill, 2018, the DNA Technology (Use and Application) Regulation Bill, and amendments to the RTI Act.  Since they have been listed for passage, it remains to be seen whether these Bills are scheduled to be scrutinized by a Parliamentary Committee.  In the 16th Lok Sabha, only 28% of the Bills introduced in Lok Sabha have been referred to Committees.  This number is low in comparison to 60% and 71% of the introduced Bills being referred to Committees in the 14th and 15th Lok Sabha, respectively.  Committees ensure that Bills are closely examined.  This facilitates informed deliberation on the Bill, and strengthens the legislative process.

Besides taking up the legislative agenda, an important function of Parliament is to discuss issues of national importance and hold the government accountable.  In the previous session, the issue of irregularities in the banking sector was repeatedly listed for discussion.  However, due to disruptions, it was not taken up.  Budget Session 2018 saw the lowest number of non- legislative debates since the beginning of the 16th Lok Sabha.  In the upcoming session, it is likely that members will raise various issues for discussion.  It remains to be seen whether Parliament will function smoothly in order to power through its agenda, and fulfil its obligation to hold the government accountable.

 

The Anti-Defection Law Explained

December 6th, 2017 No comments

On Monday, December 4, the Chairman of Rajya Sabha disqualified two Members of Parliament (MPs) from the House under the Tenth Schedule of the Constitution (better known as the anti-defection law) for having defected from their party.[1] These members were elected on a Janata Dal (United) ticket.  The Madras High Court is also hearing petitions filed by 18 MLAs who were disqualified by the Speaker of the Tamil Nadu Assembly in September 2017 under the anti-defection law.  Allegations of legislators defecting in violation of the law have been made in several other states including Andhra Pradesh, Arunachal Pradesh, Goa, Manipur, Nagaland, Telangana and Uttarakhand in recent years.[2]  In this context, we explain the anti-defection law.

What is the anti-defection law?

Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.  The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.[3]

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.

Are there any exceptions under the law?

Yes, 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.

Various expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.[4] This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries a remuneration, and has not been excluded in a list made by the legislature).

How has the law been interpreted by the Courts while deciding on related matters?

The Supreme Court has interpreted different provisions of the law.  We discuss some of these below.

The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation

The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.[5] In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.[6]

In the case of the two JD(U) MPs who were disqualified from Rajya Sabha on Monday, they were deemed to have ‘voluntarily given up their membership’ by engaging in anti-party activities which included criticizing the party on public forums on multiple occasions, and attending rallies organised by opposition parties in Bihar.[7]

Decision of the Presiding Officer is subject to judicial review 

The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.[8] However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.

In 2015, the Hyderabad High Court, refused to intervene after hearing a petition which alleged that there had been delay by the Telangana Assembly Speaker in acting against a member under the anti-defection law.[9]

Is there a time limit within which the Presiding Officer has to decide?

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.

There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.[10] In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House. There have also been instances where opposition members have been appointed ministers in the government while still retaining the membership of their original parties in the legislature.[11]

In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken away in small groups gradually to join the ruling party. In some of these cases, more than 2/3rd of the opposition has defected to the ruling party.

In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller groups.  However, it is not clear if they will still face disqualification if the Presiding Officer makes a decision after more than 2/3rd of the opposition has defected to the ruling party. The Telangana Speaker in March 2016 allowed the merger of the TDP Legislature Party in Telangana with the ruling TRS, citing that in total, 80% of the TDP MLAs (12 out of 15) had joined the TRS at the time of taking the decision.[12]

In Andhra Pradesh, legislators of the main opposition party recently boycotted the entire 12-day assembly session.  This boycott was in protest against the delay of over 18 months in action being taken against legislators of their party who have allegedly defected to the ruling party.[13] The Vice President, in his recent order disqualifying two JD(U) members stated that all such petitions should be decided by the Presiding Officers within a period of around three months.

Does the anti-defection law affect the ability of legislators to make decisions?

The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.

Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue. Several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions).[14]

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[1] Parliamentary Bulletin-II, December 4, 2017, http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066 and http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57067.

[2] MLA Defection Politics Not New, Firstpost, March 13, 2017, http://www.firstpost.com/politics/bjp-forms-govt-in-goa-manipur-mla-defection-politics-not-new-telangana-ap-perfected-it-3331872.html.

[3] The Constitution (52nd Amendment) Act, 1985, http://indiacode.nic.in/coiweb/amend/amend52.htm.

[4] Report of the Committee on Electoral Reforms, 1990, http://lawmin.nic.in/ld/erreports/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf and the National Commission to review the working of the Constitution (NCRWC), 2002, http://lawmin.nic.in/ncrwc/ncrwcreport.htm.

[5] Ravi Naik vs Union of India, 1994, https://indiankanoon.org/doc/554446/.

[6] G.Viswanathan Vs. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras& Another, 1996, https://indiankanoon.org/doc/1093980/  and Rajendra Singh Rana vs. Swami Prasad Maurya and Others, 2007, https://indiankanoon.org/doc/1620629/ and Parliamentary Bulletin-II, December 4, 2017, http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066.

[7] Parliamentary Bulletin-II, December 4, 2017, http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066.

[8] Kihoto Hollohon vs. Zachilhu and Others, 1992, https://indiankanoon.org/doc/1686885/.

[9] Sabotage of Anti-Defection Law in Telangana, 2015, https://www.epw.in/journal/2015/50/commentary/sabotage-anti-defection-law-telangana.html.

[10] Speaker, Haryana Vidhan Sabha Vs Kuldeep Bishnoi & Ors., 2012, https://indiankanoon.org/doc/45034065/  and Mayawati Vs Markandeya Chand & Ors., 1998, https://indiankanoon.org/doc/1801522/.

[11] Anti-Defecton Law Ignored, November 30, 2017, http://www.news18.com/news/politics/anti-defection-law-ignored-as-mlas-defect-to-tdp-trs-in-andhra-pradesh-and-telangana-1591319.html and It’s official Minister Talasani is still a TDP Member, March 27, 2015, http://www.thehansindia.com/posts/index/Telangana/2015-03-27/Its-Official-Minister-Talasani-is-still-a-TDP-member/140135.

[12] Telangana Legislative Assembly Bulletin, March 10, 2016, http://www.telanganalegislature.org.in/documents/10656/19317/Assembly+Buletin.PDF/a0d4bb52-9acf-494f-80e7-3a16e3480460;  12 TDP MLAs merged with TRS, March 11, 2016, http://www.thehindu.com/news/national/telangana/12-tdp-mlas-merged-with-trs/article8341018.ece.

[13] The line TD leaders dare not cross, December 4, http://www.thehindu.com/todays-paper/tp-national/tp-andhrapradesh/the-line-td-leaders-dare-not-cross/article21257521.ece

[14] Report of the National Commission to review the working of the Constitution, 2002, http://lawmin.nic.in/ncrwc/ncrwcreport.htm, Report of the Committee on electoral reforms, 1990, http://lawmin.nic.in/ld/erreports/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf  and Law Commission (170th report), 1999, http://www.lawcommissionofindia.nic.in/lc170.htm.

NATGRID: Should Parliament have a role?

June 20th, 2011 1 comment

The Union government’s Cabinet Committee on Security recently gave clearance to the Home Ministry’s NATGRID project.  The project aims to allow investigation and law enforcement agencies to access real-time information from data stored with agencies such as the Income Tax Department, banks, insurance companies, Indian Railways, credit card transactions, and more.  NATGRID, like a number of other government initiatives (UIDAI), is being established through governmental notifications rather than legislation passed in Parliament.  The examination of this issue requires an assessment of the benefits of legislation vis-a-vis government notifications.

Government notifications can be issued either under a specific law, or independent of a parent law, provided that the department issuing such notification has the power to do so.  Rules, regulations which are notified have the advantage of flexibility since they can be changed without seeking Parliamentary approval.

This advantage of initiating projects or establishing institutions through government notifications is also potentially of detriment to the system of checks and balances that a democracy rests on.  For, while legislation takes a longer time to be enacted (it is discussed, modified and debated in Parliament before being put to vote), this also enables elected representatives to oversee various dimensions of such projects.  In the case of NATGRID, the process would provide Parliamentarians the opportunity to debate the conditions under which private individual information can be accessed, what information may be accessed, and for what purpose.  This time consuming process is in fact of valuable import to projects such as NATGRID which have a potential impact on fundamental rights.

Finally, because changing a law is itself a rigorous process, the conditions imposed on the access to personal information attain a degree of finality and cannot be ignored or deviated from.  Government rules and regulations on the other hand, can be changed by the concerned department as and when it deems necessary.  Though even governmental action can be challenged if it infringes fundamental rights, well-defined limits within laws passed by Parliament can help provide a comprehensive set of rules which would prevent their infringement in the first place.

The Parliamentary deliberative process in framing a law is thus even more important than the law itself.  This is especially so in cases of government initiatives affecting justiciable rights.  This deliberative process, or the potential scrutiny of government drafted legislation on the floor of Parliament ensures that limitations on government discretion are clearly laid down, and remedies to unauthorised acts are set in stone.  This also ensures that the authority seeking to implement the project is

The other issue pertains to the legal validity of the project itself.  Presently, certain departmental agencies maintain databases of personal information which helps them provide essential services, or maintain law and order.  The authority to maintain such databases flows from the laws which define their functions and obligations.  So the power of maintaining legal databases is implicit because of the nature of functions these agencies perform.  However, there is no implicit or explicit authorization to the convergence of these independent databases.

One may argue that the government is not legally prevented from interlinking databases.  However, the absence of a legal challenge to the creation of NATGRID does not take away from the importance of establishing such a body through constitutionally established deliberative processes.  Therefore, the question to be asked is not whether NATGRID is legally or constitutionally valid, but whether it is important for Parliament to oversee the establishment of NATGRID.

In October 2010, the Ministry of Personnel circulated an “Approach paper for a legislation on privacy”.  The paper states: “Data protection can only be ensured under a formal legal system that prescribes the rights of the individuals and the remedies available against the organization that breaches these rights. It is imperative, if the aim is to create a regime where data is protected in this country, that a clear legislation is drafted that spells out the nature of the rights available to individuals and the consequences that an organization will suffer if it breaches these rights.”

As the lines above exemplify, it is important for a robust democracy to codify rights and remedies when such rights may be potentially affected.  The European Union and the USA, along with a host of other countries have comprehensive privacy laws, which also lay down conditions for access to databases, and the limitations of such use.  The UIDAI was established as an executive authority, and still functions without statutory mandate.  However, a Bill seeking to establish the body statutorily has been introduced, and its contents are being debated in the Parliamentary Standing Committee on Finance and the Bill has also been deliberated on by civil society at large.

A similar approach is imperative in the case of NATGRID to uphold the sovereign electorate’s right to oversee institutions that may affect it in the future.

 

Will judges have to declare assets under the new Bill on judicial accountability?

December 17th, 2010 1 comment

The issue of judges declaring their assets assumes importance in light of recent allegations and inquiries into allegations of wrongdoing by judges (read our post on the report of the Committee set up to examine allegations of wrongdoing by Justice Soumitra Sen of the Calcutta High Court).  The Delhi High Court also gave a judgement recently, requiring judges of the Supreme Court to declare their assets.

The Bill on judicial accountability (read summary here) requires judges to declare their assets to a specified authority within 30 days of them taking their oath of office.  The assets of spouses and dependents is also required to be disclosed.  The Bill also states that the assets declared will be put up on the website of the relevant court.

Can Ministers be summoned by Public Accounts Committee?

December 16th, 2010 No comments

The Public Accounts Committee  examines how the Government spends public money. It examines the amount granted by the Parliament and the amount actually spent.

A Speaker in the past, has passed a direction which specifies clearly that a Minister cannot be summoned by the Financial Committees.  This has been incorporated in a document titled “Directions by the Speaker” available here.

The actual text of the direction reads –

“99. (1) The Committee on Estimates or the Committee on Public Accounts or the Committee on Public Undertakings may call officials to give evidence in connection with the examination of the estimates and accounts, respectively, relating to a particular Ministry or Undertaking. But a Minister shall not be called before the Committee either to give evidence or for consultation in connection with the examination of estimates or accounts by the Committee.”

Co-authored by Chakshu

Control over Budget: Effectiveness of Parliament

March 25th, 2010 2 comments

During the recess, the Departmentally Related Standing Committees of Parliament examine the Demand for Grants submitted by various Ministries.  The Demand for Grants are detailed explanations of that Ministry’s annual budget which form part of the total budget of the government.  These are examined in detail, and the committees can approve of the demands, or suggest changes.  The Demand for Grants are finally discussed and voted on by the Parliament after the recess.  (The post below lists the ministries whose Demand for Grants will be discussed in detail after the recess).

The issue is – how effective is the institution of Parliament in examining the budget?  Though India specific information on this subject is hard to find, K. Barraclough and B. Dorotinsky have cited the World Bank – OECD Budget procedures Database to formulate a table on the legislature approving the budget presented by the executive (“The Role of the Legislature in the Budget Process: A Comparative Review“, Legislative Oversight and Budgeting).  I reproduce the table below:



In Practice, does the legislature generally approve the budget as presented by the Executive? (in percent)
Answer All Countries OECD Countries Presidential democracies Parliamentary democracies
It generally approves the budget with no changes 34 33 14 41
Minor changes are made (affecting less than 3% of total spending) 63 67 71 59
Major changes are made (affecting more than 3% but less than 20% of total spending) 2 0 7 0
The budget approved is significantly different (affecting more than 20% of total spending) 0 0 0 0
Sources:  K. Barraclough and B. Dorotinsky; PRS.

Budgetary History: Evolution of legislative “power of the purse”

March 4th, 2010 5 comments

The presentation of the Annual Budget before the parliament is one of the mechanisms available to any legislature to scrutinise and authorise revenues and expenditures of the country.   In this post I quote and summarise from two sources (Rick Stapenhurst, The legislature and the Budget“, in Legislative Oversight and Budgeting, World Bank Institute Development Studies, and The evolution of parliament’s power of the purse) which describe briefly how oversight by the legislature over the state’s finances evolved historically.

“The evolution of legislative “power of the purse” dates back to medieval times, when knights and burgesses in England were summoned to confirm the assent of local communities to the raising of additional taxes.”  By the 1300s the English parliament had begun to use its power to vote on funds depending on the acceptance of petitions presented by parliament to the monarch.  In 1341, the monarch agreed that citizens should not be taxed (“charged or grieved to make common aid or sustain charge”) without the assent of Parliament.

“In parallel, the English Parliament began to take an interest in how money was collected, as well as how it was spent.”  In the 1300’s itself, it started appointing commissioners to audit the accounts of tax collectors.

This power of oversight however evolved gradually, and particularly over the 16th century, when the “monarchs needed parliamentary support and voting of funds for their various political and religious battles.  King Henry VIII for example, gave Parliament enhanced status in policy making, in return for support during his battles with Rome.”

The 1689 Bill of Rights firmly established “the principle that only Parliament could authorize taxation.  Still, at this stage there was still no such thing as an annual budget, and there was no comprehensive control of expenditures.”  The British Parliament also passed a resolution in 1713 to limit Parliament’s power to “not vote sums in excess of the Government’s estimates. Consequently, the only amendments that are in order are those which aim to reduce the sums requested.”

“Since that time, the “power of the purse” function has been performed by legislatures around the world as a means to expand their democratic leverage on behalf of citizens.”