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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.

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.

Status of Legislation in the 15th Lok Sabha

August 19th, 2013 No comments

The ongoing Monsoon Session of Parliament is being widely viewed as the ‘make or break’ session for passing legislation before the end of the 15th Lok Sabha in 2014. Hanging in balance are numerous important Bills, which will lapse if not passed before the upcoming 2014 national elections.

Data indicates that the current Lok Sabha has passed the least number of Bills in comparison to other comparable Lok Sabhas. The allocated time to be spent on legislation in the Monsoon Session is also below the time recommended for discussion and passing of Bills by the Business Advisory Committee of the Lok Sabha. Eight out of a total of 16 sittings of the Monsoon Session have finished with only 15 percent of the total time spent productively.

Success rate of the 15th Lok Sabha in passing legislation

India’s first Lok Sabha (1952-1957)  passed a total of 333 Bills in its five year tenure. Since then, every Lok Sabha which has completed over three years of its full term has passed an average of 317 Bills. Where a Lok Sabha has lasted for less than 3 years, it has passed an average of 77 Bills. This includes the 6th, 9th, 11th and 12th Lok Sabhas. The ongoing 15th Lok Sabha, which is in the fifth year of its tenure, has passed only 151 Bills (This includes the two Bills passed in the Monsoon Session as of August 18, 2013).

In terms of parliamentary sessions, Lok Sabhas that have lasted over three years have had an average of fifteen sessions. The 15th Lok Sabha has finished thirteen parliamentary sessions with the fourteenth (Monsoon Session) currently underway.

Bills Passed by Lok Sabhas

Legislative business accomplished in the 15th Lok Sabha

For the 15th Lok Sabha, a comparison of the government’s legislative agenda at the beginning of a parliamentary session with the actual number of Bills introduced and passed at the end of the session shows that: (i) on average, government has a success rate of getting 39 percent of Bills passed; and (ii) on average, 60 percent success rate in getting Bills introduced.

final2.2

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The Monsoon Session of Parliament was scheduled to have a total of 16 sitting days between August 5-30, 2013. Of the 43 Bills listed for consideration and passage, 32 are Bills pending from previous sessions. As of August 18, 2013, the Rajya Sabha had passed a total of five Bills while the Lok Sabha had passed none. Of the 25 Bills listed for introduction, ten have been introduced so far.

The Budget Session of Parliament earlier this year saw the passage of only two Bills, apart from the appropriation Bills,  of the 38 listed for passing. These were the Protection of Women Against Sexual Harassment at Workplace Bill and the Criminal Law (Amendment) Bill.

Time allocated for legislation in the Monsoon Session

The Lok Sabha is scheduled to meet for six hours and the Rajya Sabha for five hours every day.  Both houses have a question hour and a zero hour at the beginning of the day, which leaves four hours for legislative business in the Lok Sabha and three hours in the Rajya Sabha. However, both Houses can decide to meet for a longer duration. For example, Rajya Sabha has decided to meet till 6:00 PM every day in the Monsoon Session as against the normal working hours of the House until 5:00 PM.

The Business Advisory Committee (BAC) of both Houses recommends the time that should be allocated for discussion on each Bill. This session’s legislative agenda includes a total of 43 Bills to be passed by Parliament.  So far, 30 of the Bills have been allocated time by the BAC, adding up to a total of 78 hours of discussion before passing.

If the Lok Sabha was to discuss and debate the 30 Bills for roughly the same time as was recommended by the BAC, it would need a minimum of 20 working days.  In addition, extra working days would need to be allocated to discuss and debate the remaining 13 Bills.

With eight sitting days left and not a single Bill being passed by the Lok Sabha, it is unclear how the Lok Sabha will be able to make up the time to pass Bills with thorough debate.

 

House of Lost Opportunities

May 2nd, 2013 No comments

The last few days have seen repeated disruptions in Parliament. In an Opinion Editorial published in the Indian Express, Chakshu Roy of PRS Legislative Research discusses the impact of the current disruptions on Parliament. His analysis points to how disruptions are an opportunity lost  to hold the government accountable and to deliberate on significant legislative and policy issues.

The second half of the budget session commenced last week with hardly any business transacted due to disruptions on different issues. This is not new. The 15th Lok Sabha has seen entire parliamentary sessions lost without any work being done. As it nears the end of its term, Parliament’s productive time stands at 70 per cent, which is significantly lower than that of previous Lok Sabhas.

As disruptions in Parliament have become routine, public reaction to such disruptions has also become predictable. Figures depicting the quantum of taxpayers’ money lost every hour that Parliament does not function start doing the rounds, and the cry for docking the salary of disrupting members of Parliament becomes louder. What does not get adequate attention is the opportunity lost for holding the government accountable and deliberating on important legislative and policy issues.

MPs are required to keep the government in check and oversee its functioning. One of the ways in which they do so is by asking ministers questions about the work done by their ministries. Ministers respond to such questions during the first hour of Parliament, which is known as question hour. During this hour, 20 questions are slotted for oral responses by ministers. Based on the response, MPs can cross-question and corner the minister by asking supplementary questions. On certain occasions, they are also able to extract assurances from the minister to take action on certain issues. When question hour is disrupted, not only are these opportunities lost, it also leads to ineffective scrutiny of the work done by the various ministries of the government. Last week, some of the questions that could not be orally answered related to four-laning of highways, performance of public sector steel companies, supply of food grains for welfare schemes, and generic versions of cancer drugs. In 2012, out of the 146 hours allocated for question hour in both Houses of Parliament, roughly only 57 hours were utilised. Since the beginning of the 15th Lok Sabha in 2009, approximately 43 per cent of the allocated time has been spent on question hour.

When Parliament is disrupted regularly, its capacity to make laws is affected. Excluding routine financial legislation, since 2009, the government had planned to introduce 390 bills. So far, it has been able to introduce only 187 of them. It had also planned to have 365 bills scrutinised and passed by Parliament. So far, 96 of them have received parliamentary approval. Disruptions in Parliament also eat into the time available for discussing a bill in the house. In Lok Sabha, roughly 35 per cent of bills were passed with an hour or less of debate, a case being the sexual harassment bill, which was passed by Lok Sabha in September of last year in 16 minutes. Some would argue that since parliamentary committees scrutinise most bills in detail, there is no harm done if the bills are not debated in the House. However scrutiny of a bill behind closed doors is hardly a substitute for spirited debates on the merits and demerits of a bill on the floor of the House. Currently there are 115 bills awaiting parliamentary scrutiny and approval. Important social and economic legislation is currently pending before Parliament. The food security bill, the land acquisition bill, the companies and the goods and services tax bill are just a few of them.

Out of the laundry list of pending bills, some are political and may be stuck in Parliament till consensus around them can be built. But there are a number of bills that are administrative in nature, and have no political undercurrents and are possibly not coming up for discussion because of the limited time that is available for legislative debate on account of frequent disruptions.

In September 1997, to celebrate the golden jubilee of the country’s Independence, a special session of Parliament was convened. At this special session, MPs had resolved to preserve and enhance the dignity of Parliament by adhering to the rules of procedure of Parliament relating to the orderly conduct of parliamentary proceedings. Last year, Parliament completed 60 years since its first sitting. To mark the occasion, another special session of both Houses was convened, where MPs had resolved to uphold the dignity, sanctity and supremacy of Parliament. Ensuring that the proceedings of both Houses run smoothly so that Parliament can discharge its responsibility effectively is the best way of ensuring its supremacy. The question that needs to be asked is whether our members of Parliament are ready to stand by the resolutions that they voluntarily adopted.

The Budget: What happens next and some stats on what happened before

March 14th, 2013 3 comments

Authored by Vishnu Padmanabhan and Priya Soman

The Budget speech may have already been scrutinised and the numbers analysed but the Budget process is far from complete.  The Constitution requires expenditure from the government’s Consolidated Fund of India to be approved by the Lok Sabha (the Rajya Sabha does not vote, but can suggest changes). After the Finance Minister presents the Union Budget, Parliament holds a general discussion followed by a detailed discussion and vote on Demands for Grants. In the general discussion, the House discusses the Budget as a whole but no motions can be moved and no voting takes place.  In the 15th Lok Sabha, the average time spent during the Budget Session on general discussion has been 13 hours 20 minutes so far.

Following the general discussion, Parliament breaks for recess while Demands for Grants – the projected expenditure by different ministries – are examined by the relevant Standing Committees of Parliament. This year Parliament is scheduled to break for a month from March 22nd to April 22nd. After the break, the Standing Committees table their reports; the grants are discussed in detail and voted on.  Last year, the total time spent on the Union Budget, on both general and detailed discussion was around 32 hours (or 18% of total time in the session), largely in line with the average time spent over the last 10 years (33 hours, 20% of total time). A unique feature of Indian democracy is the separate presentation and discussion for the Railway Budget.  Including the Railway Budget the overall time spent on budget discussion last year was around 55 hours (30% of total time in the session).

Note: All data from Budget sessions; data from 2004 and 2009 include interim budget sessions. Source: Lok Sabha Resume of Work, PRS

During the detailed discussion, MPs can call for ‘cut motions’ to reduce the amounts of demands for grants made by a Ministry. This motion can be tabled in three ways: (i) ‘the amount of the demand be reduced to Re.1/’ signifying disapproval of the policies of that ministry; (ii)  ‘the amount of the demand be reduced by a specified amount’, an economy cut signifying a disapproval of the amount spent by the ministry  and (iii) ‘the amount of the demand be reduced by Rs.100/-’, a token cut airing a specific grievance within the policy of the government. However in practice almost all demands for grants are clubbed and voted together (a process called guillotining).

In 2012, 92% of demands for grants were guillotined. The grants for Ministries of Commerce and Industry, Health and Family Welfare, Home Affairs and Urban Development were the only grants taken up for discussion. Over the last 10 years, 85% of demands for grants have been voted for without discussion. The most frequently discussed demand for grants come from the Ministry of Home Affairs (discussed in 6 of the last 10 sessions) and the Ministry of Rural Development (5 times).  Demand for grants for Defence, the largest spending Ministry, has only been voted after discussion once in the last 10 years.

Source: Lok Sabha Resume of Work, Union Budget documents, PRS

If the government needs to spend any additional money, it can introduce Supplementary Demands for Grants during the year.  However if after the financial year government spending on a service exceeds the amount granted, then an Excess Demand for Grant has to be introduced and passed in the following year.  The Budget process concludes with the introduction and passage of the Appropriation Bill authorising the government to spend money from the Consolidated Fund of India. In addition, a Finance Bill, containing the taxation proposals of the government is considered and passed by the Lok Sabha after the Demands for Grants have been voted upon.

Some Important Anti-Corruption Bills in Parliament

November 23rd, 2012 No comments

Listed below are some key Bills pending in Parliament that are expected to address various aspects of corruption in India. These Bills need to be scrutinized carefully by both lawmakers and citizens alike, so as the strengthen them. Citizen groups can engage in a variety of ways to get their views heard, which have been described in the primer on Engaging with Policy Makers.

Some of these anti-corruption Bills are listed in the current Winter Session for consideration and passing. These are marked in red below. (The full list of all Bills being considered in the Winter Session can be accessed here.)

Each Bill below has been hyperlinked to a page which has the text of the Bill, the report of the Standing Committee, PRS analysis, and other relevant documents, all in one place. Spreading this message to a number of interested people will be a very useful contribution by all those interested in building greater engagement of people with what happens in Parliament.

 

Bill

Date of introduction

Status

Brief description

The Lokpal and Lokayuktas Bill, 2011 (Listed for passing) December 22, 2011 Passed by Lok Sabha on 27 Dec 2011. Report of Rajya Sabha Select Committee submitted on November 23, 2012. It seeks to establish the office of the Lok Pal at the centre and Lokayuktas in states for inquiring into complaints against certain public servants.The Bill once passed shall be applicable to states if they give their consent to its application.
The Whistle Blowers Protection Bill, 2011 (Listed for passing) August 26, 2010 Passed by Lok Sabha on December 27, 2011. Pending in Rajya Sabha It seeks to protect whistleblowers (person making a disclosure related to acts of corruption, misuse of power or criminal offence).Under the Bill any person including a public servant may make such a disclosure to the Central or State Vigilance Commission.The identity of the complainant shall not be disclosed.
The Benami Transactions (Prohibition) Bill, 2011 August 18, 2011 Standing Committee submitted its Report on June 26, 2012 The Bill prohibits all persons from entering into benami transactions (property transactions in the name of another person).Any benami property shall be confiscated by the central government.It seeks to replace the existing Benami Transactions (Prohibition) Act, 1988.
The Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2011 (Listed for passing) March 25, 2011 Standing Committee  submitted its Report on March 29, 2012 Indiais a signatory to the UN Convention against corruption. The Bill is necessary for India to ratify the Convention.The Bill makes it an offence to accept or offer a bribe to foreign public officials and officials of public international organizations in order to obtain or retain international business
The Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011 December 20, 2011 Standing Committee submitted its Report on August 28, 2012 It requires every public authority to publish a citizen charter within six months of commencement of the Act.The charter should detail the goods and services to be provided and the timeline for their delivery.
The Electronic Delivery of Services Bill, 2011 December 27, 2011 Standing Committee submitted its Report on August 30, 2012 The Bill requires all public authorities to deliver all public services electronically within a maximum period of eight years.There are two exceptions to this requirement: (a) service which cannot be delivered electronically; and (b) services that the public authorities in consultation with the respective Central and State EDS Commissions decide not to deliver electronically.
The Prevention of Money-Laundering (Amendment) Bill, 2011 (Listed for passing) December 27, 2011 Standing Committee submitted its Report on May 9, 2012 The Bill Amends the Prevention of Money Laundering Act, 2002.This Bill widens the definition of offences under money laundering to include activities like concealment, acquisition, possession and use of proceeds of crime.It provides for the provisional attachment and confiscation of property (for a maximum period of 180 days).
The National Identification Authority of India Bill, 2010 December 3, 2010 Standing Committee  submitted its Report on December 13,  2011 The Bill seeks to establish the National Identification Authority of India to issue unique identification numbers (called ‘Aadhaar’) to residents ofIndia.Every person residing inIndia(regardless of citizenship) is entitled to obtain an Aadhaar number after furnishing the required information.The number shall serve as an identity proof.  But not as a citizenship proof.
The Judicial Standards and Accountability Bill, 2010 December 1, 2010 Passed by Lok Sabha on March 29, 2012; Pending in Rajya Sabha It replaces the Judges (Inquiry) Act, 1968.  It provides for enforceable standards for the conduct of High Court and Supreme Court judges.The Bill requires judges and their spouses and children to declare their assets and liabilities.  It also establishes a process for the removal of judges of Supreme Court and High Court
The Public Procurement Bill, 2012 May 14, 2012 Standing Committee Report pending The Bill seeks to regulate and ensure transparency in the procurement process.  It applies to procurement processes above Rs 50 lakh.The procuring entity shall adhere to certain standards such as (a) ensuring efficiency and economy; and (b) provide fair and equitable treatment to bidders.

Sources: Respective Bills, PRS Legislative Research

 

 

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.

 

The NAC Communal Violence Bill: Prevention of Communal and Targeted Violence

June 9th, 2011 5 comments

The National Advisory Committee has recently come out with a Communal Violence Bill.  The Bill is intended to prevent acts of violence, or incitement to violence directed at people by virtue of their membership to any “group”.  An existing Bill titled the “Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005” pending in the Rajya Sabha (analysis here).  The main features of the NAC Bill are explained below:

The Bill makes illegal acts which result in injury to persons or property, if such acts are directed against persons on the basis of their affiliation to any group, and if such an act destroys the secular fabric of the nation.  Such acts include sexual assault, hate propaganda, torture and organized communal violence.

It makes public servants punishable for failing to discharge their stated duties in an unbiased manner.  In addition, public servants have duties such as the duty to provide protection to victims of communal violence and also have to take steps to prevent the outbreak of communal violence.

The Bill establishes a National Authority for Communal Harmony, Justice, and Reparation to prevent acts of communal violence, incitement to communal violence, containing the spread of communal violence, and monitoring investigations into acts of communal violence.  The Authority can also inquire into and investigate acts of communal violence by itself.  The Bill also provides for the setting up of State Authorities for Communal Harmony, Justice, and Reparation.

The central or state government has been given the authority to intercept any messages or transmissions if it feels that it might lead to communal violence.  This power is subject to existing procedures which have to be complied with for intercepting messages and transmissions.

Importantly, if public officers are liable to be prosecuted for offences under the Bill, and prior sanction is required for such prosecution, the state government has to grant or refuse sanction within 30 days.  If not, then sanction will be deemed to have been granted.

The Bill also allows the states to set up one or more Human Rights Defender of Justice and Reparations’ in every district.  The Human Rights defender will ensure that those affected by communal and targeted violence are able to access their rights under existing laws.

Apart from these, the Bill also establishes state and district-level authorities for assessing compensation for victims of communal violence.  States also have numerous obligations towards victims, such as the establishment of relief camps, ensuring proper facilities, medical provisions and clothing for those within such camps, etc.  The states government also has the obligation to create conditions which allow the return of victims of communal violence to the place of their ordinary residence.

 

Does the judiciary “make laws”?

April 20th, 2011 3 comments

A recent case before the Supreme Court has once again highlighted the issue of judicial decisions potentially replacing/ amending legislation enacted by Parliament.  The case importantly pertains to the judiciary’s interpretation of existing law concerning itself.  The eventual outcome of the case would presumably have important implications for the way the higher judiciary interprets laws, which according to some amounts to the judiciary “legislating” rather than interpreting laws.

 

This assertion has often been substantiated by citing cases such as Vishaka v. State of Rajasthan (1997) where the Supreme Court actually laid down the law pertaining to sexual discrimination at workplaces in the absence of a law governing the same.  In numerous other cases, courts have laid down policy guidelines, or have issued administrative directions to governmental departments.

 

In the recent case of Suraz India Trust v. Union of India, a petition has been filed asking the court to reconsider its own judgements regarding the manner of appointment and transfer of judges.  It has been contended that through its judgements in 1994 and 1998 (Advocate on Record Association v. Union of India and Special Reference No. 1 of 1998) the Supreme Court has virtually amended Constitutional provisions, even though amendments to the Constitution can only be done by Parliament.  This question arises since the Constitution provides for the appointment and transfer of judges by the government in consultation with the Chief Justice of India.  The two Supreme Court judgements however gave the primary power of appointment and transfer of judges to the judiciary itself.

 

Importantly, one specific question which has been raised is whether the judgements referred to above really amount to amending the relevant provisions of the Constitution.  Another question raised which is relevant to this discussion is whether the interpretation by courts can actually make provisions in the Constitution redundant.

 

In its judgement on the 4th of April, the Supreme Court referred this case to the Chief Justice of India for further directions.  The outcome of this judgement could potentially require the Supreme Court to define the circumstances when it interprets law, and when it “legislates”.  An indication of the Supreme Court’s attitude concerning this issue may be gleaned from the recent speech of the Chief Justice of India, Justice S.H. Kapadia at the M.C. Setalvad lecture.  The CJI unambiguously stated that:

…In many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of government have failed or are indifferent to the solution of the problem. In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance...”