CHAPTER 10 – THE UNION LEGISLATURE

 

THE UNION LEGISLATURE

(ARTICLE 79 – 123)

 

 

CHAPTER II – THE UNION LEGISLATURE, THE PARLIAMENT (ARTICLE 79 – 122)

 

The Union Legislature, also known as Parliament consists of the President and the two Houses  –  The Lower House (also known as Lok Sabha or House of the People), and the Upper House (also known as Rajya Sabha or Council of States).

 

 

ARTICLE 79

 

PARLIAMENT OF INDIA

There shall be a Parliament for the Union which shall consists of the President and two Houses to be known respectively as the House of the People (Lok Sabha), and the Council of States (Rajya Sabha).

 

DESCRIPTION

The Union Legislature, also known as Parliament, consists of:

  1. The President of India.
  2. Lower House, also known as Lok Sabha or House of the People.
  3. Upper House, also known as Rajya Sabha or Council of states.

 

 

ARTICLE 80

 

COMPOSITION OF RAJYA SABHA (COUNCIL OF STATES)

  1. The Rajya Sabha or Council of states shall consist of –
    1. 12 members to be nominated by the President in accordance with the provisions of clause (3).
    2. not more than 238 representatives of the states and of the Union territories.
  2. The allocation of seats in the Rajya Sabha, to be filled by representatives of the states and of the Union territories, shall be in accordance with the provisions in that behalf contained in the Fourth Schedule.
  3. The members to be nominated by the President under sub-clause (a) of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely: Literature, science, art and social service.
  4. The representatives of each state in the Council of states shall be elected by the elected members of the Legislative Assembly of the state in accordance with the system of proportional representation by means of the single transferable vote.
  5. The representatives of the Union territories in the Council of states shall be chosen in such manner as Parliament may by law prescribe.

 

DESCRIPTION

Rajya Sabha or Council of states is the Upper House of the Indian Parliament. The elected members of the Rajya Sabha, representing their respective states and Union Territories, are elected by the members of respective Legislative Assemblies, in accordance with system of proportional representation through single transferable vote. As the members are elected by the state legislature, some small Union Territories, those without legislatures, cannot have representation. Hence, Andaman and Nicobar Islands, Chandigarh, Dadra and Nagar Haveli and Daman and Diu, Ladakh & Lakshadweep do not send any representatives. Among UT’s having legislature, the highest representation to Rajya Sabha is from J&K (4) followed by Delhi (3).

The total sanctioned strength of Rajya Sabha is 250 members. Of these, 238 members are to be elected as the representatives of the states and UTs, while 12 members are to be nominated by the President from among the persons having special knowledge and experience in the fields of literature, arts, science and social service. The number of seats allotted to each state is proportional to the population of the state. The states having less population have less number of seats allotted to them than the states having more population. Thus, Rajya Sabha or Council of states is not truly federal in nature like American system where every state has equal membership in the Upper House. The current strength of Rajya Sabha is 245 members (233 elected and 12 nominated). 

 

METHOD OF ELECTION

As mentioned earlier, the members of Rajya Sabha or Council of states are indirectly elected by the people of India through their elected representatives in respective state Legislative Assemblies, in accordance with system of proportional representation through single transferable vote. Every member of the Legislative Assembly gets only one vote, and the value of each vote is 100. Members don’t vote for just one person. Just like in the Presidential Election, the  ballot papers are printed with two columns,

  1. First column containing the names of the candidates.
  2. Second column for marking preferences by the elector for each such candidate.

In accordance with the system of proportional representation by means of single transferable vote, every elector can mark as many preferences, as there are candidates contesting the election. These preferences for the candidates are to be marked by the elector, by placing the numbers 1,2,3, 4, 5 and so on, against the names of the candidates, in the order of preference, in the space provided in column 2 of the ballot paper. In the first phase, the first preference votes are calculated for all the candidates. All the candidates who get the minimum value of votes required, are declared as winners.  The minimum value of votes needed to qualify for Rajya Sabha is calculated as under.

If none of the candidate gets the minimum value of votes required, or if the seats are still remaining vacant after the first round, then the process of transfer of votes is set in motion. The second preference votes of the candidates securing the least number of first preference votes are cancelled and transferred to the first preference votes of other candidates, and the process is repeated again till the time one of the candidate gets the minimum value of votes as required.

Let’s take example of Himachal Pradesh, where we have a state Legislative Assembly having 64 seats, and which has been assigned 3 seats in Rajya Sabha, according to the provisions of the 4th Schedule of Indian Constitution.

Therefore, the minimum value of votes needed to qualify for Rajya Sabha would be 1600 (calculated as shown below), and since the value of each vote is 100, the minimum number of MLAs needed in favour would be 16.

This system ensures that all parties get due representation in Rajya Sabha according to their representation in the states. For e.g. in the above example, let say, out of 64 seats in the state Legislative Assembly, Party X has 25 seats, while party Y has 39 seats. So obviously party members will vote for candidates from their own parties. So, there is a high chance that a candidate from party X will get 25 first preference votes, and hence would qualify for Rajya Sabha. For, the two candidates from party Y two scenarios are probable:

  1. First candidate gets all the 39 first preference votes, and the second candidate gets all the 39 second preference votes of their party members. In this scenario, the first candidate would be declared qualified for Rajya Sabha in the first round itself. Since no other would have qualified in the first round to fill the third seat in Rajya Sabha, we will have second round, where all the second preference votes will be added as first preference votes of the respective candidates. In this case, the second candidate will now have 39 first preference votes, and so he will be declared winner for the third seat of Rajya Sabha.
  2. First candidate gets 20 first preference votes, and the second candidate gets 19 first preference votes of their party members. Hence, both the candidates will be declared qualified for the remaining two seats of Rajya Sabha.

Hence, the representation in Rajya Sabha of the two parties, X and Y, will almost be in sync with ratio of their representation in their respective Legislative Assembly.

 

 

ARTICLE 81

COMPOSITION OF LOK SABHA (HOUSE OF THE PEOPLE)

  1. Subject to the provisions of Article 331, the Lok Sabha shall consists of,
    1. not more than 530 members chosen by direct election from territorial constituencies in the states, and
    2. not more than 20 members to represent the Union territories, chosen in such manner as Parliament may by law provide.
  2. For the purposes of sub clause (a) of clause (1), –
    1. there shall be allotted to each state, a number of seats, in the Lok Sabha, in such manner that the ratio between the population of the state and the number of allotted seats is, so far as practicable, the same for all states.
    2. each state shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it is, so far as practicable, the same throughout the state.
    3. Provided that the provisions of sub clause (a) of this clause shall not be applicable for the purpose of allotment of seats, in the Lok Sabha, to any state so long as the population of that state does not exceed 6 millions (60 lakhs).
  3. In this article, the expression population means the population as ascertained at the last preceding census of which the relevant figures have been published.

 

DESCRIPTION

Lok Sabha or House of the People is the lower house of the Parliament. Members of Lok Sabha are elected directly by the people from their respective constituencies. The total sanctioned strength of Lok Sabha is 550 members, out of which 530 are to be elected by the people of the states while 20 are to be elected by the people of the UTs. However, Article 331 provides that the President can nominate upto 2 members from Anglo-Indian community if he is of the opinion that they have not been adequately represented in the House.

For the purpose of Lok Sabha elections, the country has been divided into single member territorial constituency.  The process of dividing the constituencies is known as ‘Delimitation’, and the power to exercise ‘Delimitation’ for elections to Lok Sabha has been vested in the Election Commission of India. In doing so, it has to ensure that,

  1. Ratio of the population of a state to the number of Lok Sabha seats allotted to it is same across all the states, as far as possible, except in states where the population does not exceed 6 million.
  2. Ratio of the population of a constituency to the number of Lok Sabha seats allotted to it is same across all the constituencies within a state as far as possible.

Here it is to be noted that, 

  1. The expression ‘population’, considered for the purpose of distributing seats among states refers to the population ascertained at the census of 1971.
  2. The expression ‘population’, considered for the purpose of re-carving constituencies within a state, refers to the population ascertained at the census of 2011.

The members of Lok Sabha are elected directly by the people by a system of ‘First Past the Post’, by means of adult suffrage exercised through a secret ballot. In this system, the candidate who secures the maximum votes out of the total votes cast, wins the election. 

 

BENEFITS OF FIRST PAST THE POST SYSTEM

  1. It is simple to execute and easy to administer. Considering the huge size of the country, it will be a enormous task to execute the system of proportional representation.
  2. It is suitable for India where majority of people have not evolved so much yet to understand the complex system of proportional representation. 
  3. One of the advantages of this system is efficiency in decision making, especially in a democratic country like India, with lot many differences. As such, proportional representation is ill suited to the Parliamentary system of government since it could lead to fragmentation of the legislature into a number of small groups. For e.g consider a scenario where 38 percent population votes for BJP, 32 percent vote for Congress, 10 percent vote for BSP, 10 percent vote for AAP, and remaining 10 percent vote to number of small parties. If we go by system of proportional representation, the Lok Sabha would have composition in almost a similar ratio. So it would get very tough for the government of the day to take decisions.

 

DISADVANTAGES OF FIRST PAST THE POST SYSTEM

  1. Many a times, especially in today’s era of multiple parties, many a times a candidate wins the election, even when more voters have votes against him than those who have voted in his favour. For e.g. consider a scenario, where three candidates A, B and C get 38 percent, 32 percent and 30 percent votes. Despite having 62 percent people voting against him, Candidate A will be representing this constituency. Had it been a presidential system, the results could have been different. For e.g. let us consider a hypothetical voting pattern as below where securing 50 percent first preference votes is needed to win an election. Let say A gets 38 percent of first preference votes, B gets 32 percent and C gets 30 percent. In this scenario, since no candidate gets more than 50 percent first preference votes, the candidate securing least number of first preference votes is discarded, and his second preference votes are distributed among A and B as first preference votes. Let say, out of 30 first preference votes casted to C, 10 had candidate A as the second preference while 20 has candidate B as the second preference. So now A gets 48 percent first preference votes while B gets 52 percent votes.  Therefore, the candidate B wins in this case.
  2. This system promotes use of muscle and money, since by influencing a small weaker section of society, a party can get the result in its favour, as against the system of proportional representation, where they would need to exercise influence over a larger group, which would not be so easy.

The strength of most recent 17th Lok Sabha is 545 members (543 elected and 2 nominated). 

NOTE – Right to vote is a Constitutional Right in India, since Article 326 of the Indian Constitution provides that elections to the Lok Sabha and to the Legislative Assembly of every state shall be on the basis of adult suffrage.

 

 

ARTICLE 82

 

READJUSTMENTS AFTER EACH CENSUS IN LOK SABHA SEAT ALLOCATIONS

  1. Upon the completion of each census, the allocation of seats in the Lok Sabha to the states and the division of each state into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine.
  2. Such readjustment shall not affect representation in the Lok Sabha until the dissolution of the then existing House.
  3. Such readjustment shall take effect from such date as the President may, by order, specify and until such readjustment takes effect, any election to the House may be held on the basis of the territorial constituencies existing before such readjustment.
  4. Provided also that until the relevant figures for the first census taken after the year 2000 have been published, it shall not be necessary to readjust the existing provisions [Added by 42nd Amendment Act, 1976].

 

DESCRIPTION

Although Article 82 provides for reallocation of seats in Lok Sabha to the states on the basis of latest census, the 42nd Constitutional Amendment Act (1976) introduced a freeze upon allocation on the basis of 1971 census. This was done to ensure the states that took steps towards population control do not see decrease in their representation in Lok Sabha owing to such decrease in their population. The freeze was to continue till the year 2000. However, the freeze was extended by 84th Constitutional Amendment Act (2001) to the year 2026. 

 

DELIMITATION COMMISSION OF INDIA

Delimitation refers to the act or process of fixing limits or boundaries of territorial constituencies in a country or a state, having a legislative body. The job of delimitation is assigned to the Delimitation Commission or a Boundary Commission.

The Delimitation commission or Boundary commission of India is a commission established by the Government of India under the provisions of the Delimitation Commission Act. The Delimitation Commission is appointed by the President of India and works in collaboration with the Election Commission of India. The orders are laid before the Lok Sabha and the respective State Legislative Assemblies. However, modifications are not permitted. The Commission is a powerful and independent body whose orders cannot be challenged in any court of law.

The main task of the commission is redrawing the boundaries of the various assembly and Lok Sabha constituencies based on a recent census. It seeks to ensure that each vote as same value. 

The representation from each state is not changed during this exercise. In other words, Delimitation Commission is authorised to alter the boundaries of the constituencies but is not authorised to alter the number of seats in state Legislatures or the Parliament.

Below are some quick facts related to Delimitation Commission of India –

  • Delimitation commissions have been set up four times in the past – 1952, 1963, 1973 and 2002.
  • Up until 1976, after every Indian Census the seats of Lok Sabha, Rajya Sabha and Vidhan Sabha were re-distributed respectively throughout the country so as to have equal population representation from every seat. The union government suspended delimitation in 1976 until after the 2001 census so that states’ family planning programs would not affect their political representation in the Lok Sabha. This had led to wide discrepancies in the size of constituencies, with the largest having over 30 lakh electors, and the smallest less than 50,000.
  • The most recent delimitation commission was set up in 2002, after the 2001 census, with Justice Kuldip Singh, a retired Judge of the Supreme Court, as its Chairperson. The Commission submitted its recommendations, which were implemented in 2008.
  • The Constitution of India was specifically amended in 2002 not to have delimitation of constituencies till the first census after 2026. Thus, the present constituencies carved out on the basis of 2001 census shall continue to be in operation till the first census after 2026.

 

A CRITICAL EVALUATION

As a result of the freezing of the allocation of seats, the allocation done on the basis of the 1971 Census continues hold good for the present population figures. According to the 2011 Census, the population of our country stands at 121 crore with a registered electorate of about 84 crore. Using the 1971 Census figure of 54 crore to represent today’s population presents a distorted version of our democratic polity and is contrary to what is mandated under Article 81 of the Constitution. So when the first Census figure will be available after 2026, i.e. the 2031 census, a fresh delimitation will need to done which would dramatically alter the present arrangement of seat allocation to the states in Parliament.

Before addressing the problem of accommodating the increase in numbers, there are more important questions which require to be debated and answers found.

  1. How would the Parliament ensure that the states that performed better in population control do not lose out to states that fared bad?
  2. How would the Presiding Officers of the Houses/Legislatures deal with such a large number of members jostling with each other to capture the attention of the Speaker to raise issues in the House?
  3. How would the Parliament ensure that every member is heard of?

While 2026 is still a few years away, if we do not start a debate now on how to deal with the problems that are likely to arise, we will be forced to postpone the lifting of the freeze to a future date as was done in 2001. This will only postpone the problem for which we must find a solution sooner or later.

 

 

ARTICLE 83

 

DURATION OF THE HOUSES OF PARLIAMENT

  1. The Council of states or Rajya Sabha shall not be subject to dissolution, but as nearly as possible one-third of its members shall retire on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.
  2. The House of the People or Lok Sabha, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer, and the expiration of the said period of 5 years shall operate as a dissolution of the House. The said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.

 

DESCRIPTION

The Rajya Sabha is not subject to dissolution. It is a permanent body in which nearly one third of the members retire on the expiry of every two years. It follows that there shall be elections to Rajya Sabha every two years. The term of the member of Rajya Sabha is 6 years.

The normal life of Lok Sabha is 5 years from the date of its first meeting after the general elections but it may be dissolved earlier by the President if,

  1. The Prime Minister, advises him to do so.
  2. The then government loses vote of confidence in the Lok Sabha, and the President thinks it wise to dissolve the house.

However, during proclamation of emergency, the normal term of Lok Sabha can be extended by an Act of the Parliament for a period not exceeding one year at a time, and in any case, such extension cannot continue beyond 6 months after the Proclamation of Emergency ceases to operate. 

 

 

ARTICLE 84

 

QUALIFICATIONS FOR MEMBERSHIP OF PARLIAMENT

A person shall not be qualified to be chosen to fill a seat in Parliament unless he or she,

  1. is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule.
  2. is, in case of a seat in the Rajya Sabha, not less than 30 years of age and, in case of a seat in the Lok Sabha, not less than 25 years of age.
  3. possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.

 

DESCRIPTION

To become a member of the House of the People or Lok Sabha, a person must,

  1. be a registered elector of a constituency and a citizen of India. However, if s/he is a registered voter in a particular state, s/he can contest from any seat in any state.
  2. not less than 25 years of age (i.e. must have completed 25 years of age).
  3. not hold any office of profit under the Union or the state. 

Only the candidate or any of the proposers can file the nomination. The nomination papers cannot be sent through post or someone else. For candidates of a recognised national or state party, one proposer is enough. But for Independent candidates or those of an unrecognised political party, s/he will require 10 proposers at the time of filing nominations. The proposers must also be electors from the concerned constituency. A candidate can contest from two constituencies at the most.

To become a member of the Council of states or Rajya Sabha, a person must,

  1. be a citizen of India.
  2. not less than 30 years of age (i.e. must have completed 30 years of age).
  3. not hold any office of profit under the Union or the state. 

Under Clause (3) of Article 84 of the Constitution of India, the Parliament enacted PEOPLE’S REPRESENTATION ACT (1951) which among other things provides that a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

 

 

ARTICLE 85

SESSIONS OF PARLIAMENT, PROROGATION AND DISSOLUTION

  1. The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
  2. The President may from time to time –
    1. prorogue both Lok Sabha as well as Rajya Sabha.
    2. dissolve Lok Sabha (House of the People).

 

DESCRIPTION

The Parliament must meet atleast twice in a year, such that six months must not lapse between the date of last sitting of previous session and the date of first sitting of the next session.

A Session refers to the period of time between the first sitting of the House till the date on which the President prorogues or dissolves the House.  Usually, in a year, there are three sessions of the Parliament,

  1. Budget SessionFirst session of every financial year. This is the longest of all sessions of the Parliament.
  2. Monsoon Session – This is the session held between July and September every year.
  3. Winter Session – This is the shortest session of the Parliament.

Prorogation or suspension merely terminates the session of the Parliament, while Dissolution brings an end to the Lok Sabha itself, following which fresh elections are to be held.

 

 

ARTICLE 86

 

RIGHT OF THE PRESIDENT TO ADDRESS AND SEND MESSAGES TO THE PARLIAMENT

  1. The President may address either House of Parliament or both Houses assembled together, and for that purpose require the attendance of members.
  2. The President may send messages to either House of Parliament, whether with respect to a Bill then pending in the Parliament or otherwise, and a House to which any message is so sent shall with all convenient despatch consider any matter required by the message to be taken into consideration.

 

DESCRIPTION

Since the President is bound to act on the advice of Council of Ministers, the address made by the President to Houses is prepared by the government and the President ceremonially reads that out. However, the President can present his own views as well during such addresses. The President being the First Citizen of India, must be guaranteed the Freedom of Speech and Expression. 

Similarly, the right of the President to send messages to the Houses is also bound by the advice of the Council of Ministers. However, the President can exercise his discretion in certain situations (such as an important bill pending for a long time) and can send a message which the government would not have wanted the President to send. There are no clear guidelines on where the President would act on the advice of Council of Ministers, and where he could act in discretion. 

 

 

ARTICLE 87

 

SPECIAL ADDRESS BY THE PRESIDENT

  1. At the commencement of the first session after each general election to the Lok Sabha, and at the commencement of the first session of each year the President shall address both Houses of Parliament assembled together and inform Parliament of the causes of its summons.
  2. Provision shall be made for the allotment of time for discussion of the matters referred to in such address.

 

 

ARTICLE 88

 

RIGHTS OF MINISTERS AND ATTORNEY GENERALS

Every Minister and the Attorney-General of India shall have the right to speak in, and otherwise to take part in the proceeding of,  either House but shall not have the right to vote by virtue of this Article only.

 

DESCRIPTION

Every Minister and the Attorney General can speak in or attend the proceeding of either House of the Parliament, even if they are not its member. However, the ministers will have the right to vote only in the House of which they are the member.

 

 

PRESIDING OFFICERS OF THE COUNCIL OF STATES (ARTICLE 89 – 92)

 

 

ARTICLE 89

 

PRESIDING OFFICERS OF RAJYA SABHA (COUNCIL OF STATES)

  1. The Vice-President of India shall be ex-officio Chairman of the Rajya Sabha.
  2. The Rajya Sabha shall, as soon as may be, choose one of its members to be Deputy Chairman thereof and, so often as the office of Deputy Chairman becomes vacant, the Council shall choose another member to be Deputy Chairman thereof.

 

DESCRIPTION

The Vice President of India is by default the ex-officio Chairman of the Rajya Sabha. We have seen in Article 66 that the Vice President of India is elected by the electoral college consisting of the members of both Houses of the Parliament, in accordance with the system of proportional representation through single transferable vote. Also we saw that although the Chairman shall be qualified to be the member of the Rajya Sabha, he should not be a member of either House of the Parliament. In case, a member of the Parliament is elected as the Vice President, he shall cease to be the member of the Parliament as soon as he is elected as the Vice President. While the members of Rajya Sabha are elected for a fixed term of 6 years, its Chairman is elected for a fixed term of 5 years. 

The Deputy Chairman of the Rajya Sabha is elected by the members of the Rajya Sabha among themselves, and continues to stay as the member of the Rajya Sabha even after election as the Deputy Chairman. Infact, the Deputy Chairman holds the office until he is the member of the Rajya Sabha and ceases to be the Deputy Chairman as soon he ceases to be the member of the House for any reason.

LIST OF CHAIRMANS OF RAJYA SABHA (VICE PRESIDENTS OF INDIA) SINCE INDEPENDENCE

S.NO NAME OF THE CHAIRMAN OF RAJYA SABHA PERIOD (FROM – TO)
1 Sarvepalli Radhakrishnan

1952-57

1957-62

2 Zakir Hussain 1962-67
3 V V Giri 1967-69
4 Gopal Swarup Pathak 1969-74
5 B D Jatti 1974-79
6 Mohammad Hidayatullah 1979-84
7 R Venkataraman 1984-87
8 Shankar Dayal Sharma 1987-92
9 K R Narayanan 1992-97
10 Krishan Kant 1997-02
11 Bhairon Singh Shekhawat 2002-07
12 Mohammad Hamid Ansari

2007-12

2012-17

13 Venkaiah Naidu 2017-Present

 

 

ARTICLE 90

 

VACANCY IN THE OFFICE OF DEPUTY CHAIRMAN OF THE RAJYA SABHA (COUNCIL OF STATES)

A member holding office as Deputy Chairman of the Rajya Sabha,

  1. shall vacate his office if he ceases to be the member of Rajya Sabha.
  2. may at any time, by writing under his hand addressed to the Chairman, resign his office.
  3. may be removed from his office by a resolution of Rajya Sabha passed by a majority of all the then members of the House, provided that no such resolution shall be moved unless at least fourteen days’ notice has been given of the intention to move such a resolution.

 

DESCRIPTION

A vacancy is created in the office of Deputy Chairman if he or she,

  1. ceases to be the member of Rajya Sabha (Council of states).
  2. resigns, by writing to the Chairman.
  3. is removed by a resolution of Rajya Sabha, passed by a simple majority of all the then members of the House. However, such a resolution can be moved only after 14 days’ notice has been given to the Deputy Chairman of such a resolution. 

It is worthwhile here to notice the difference between various kind of majorities needed for passing various kinds of resolutions in the House.

  • Special Majority of the total membership of the house = Two third of the total membership of the House.
  • Simple Majority of the total membership of the house = 50 percent of the total membership of the House.
  • Special Majority of the then membership of the house = Two third of the (total membership of the House – Absent Members).
  • Simple Majority of the then membership of the house = 50 percent of the (total membership of the House – Absent Members).

 

 

ARTICLE 91

 

PROVISIONS DURING THE ABSENCE OF THE CHAIRMAN OF RAJYA SABHA (COUNCIL OF STATES)

  1. While the Office of Chairman is vacant, or during any period when the Vice-President is acting as or discharging the functions of President, the duties of the office shall be performed by the Deputy Chairman, or, if the office of Deputy Chairman is also vacant, by such member of Rajya Sabha as the President may appoint for the purpose.
  2. During the absence of the Chairman from any sitting of Rajya Sabha, the Deputy Chairman, or, if he is also absent, such person as may be determined by the rules of procedure of the House, or, if no such person is present, such other person as may be determined by the House, shall act as Chairman.

 

DESCRIPTION

The Deputy Chairman of the Rajya Sabha discharges duties and functions of the Chairman when,

  1. the office of the Chairman is vacant.
  2. the Chairman (who is also the Vice President) is acting as the President of India.
  3. the Chairman is not able to discharge his duties due to other reasons.

During the vacancy in the office of both Chairman as well as Deputy Chairman, the President may appoint any member of the Rajya Sabha to discharge the duties and functions of the Chairman. During the absence of both Chairman as well as Deputy Chairman, the Chairman nominates any one of the six member panel of Vice Chairman to preside over the House when both Chairman and Deputy Chairman are not available.

 

 

ARTICLE 92

 

NO RIGHT TO PRESIDE TO CHAIRMAN OR DEPUTY CHAIRMAN DURING THE RESOLUTION FOR THEIR REMOVAL

  1. While any resolution for the removal of the Vice-President from his office is under consideration, the Chairman, or while any resolution for the removal of the Deputy Chairman from his office is under consideration, the Deputy Chairman, shall not have the right to preside over any meetings of the House. In such situations, Clause (2) of Article 91 shall be applicable.
  2. While any resolution for the removal of the Vice-President from his office is under consideration, the Chairman, or while any resolution for the removal of the Deputy Chairman from his office is under consideration, the Deputy Chairman, shall have the right to speak or to take part in any meetings of the House. However, they shall not be entitled to vote at all on such resolution or on any other matter during such proceedings.

 

DESCRIPTION

The Chairman of the Rajya Sabha shall not have the right to preside over the meetings of the House when any resolution calling for his removal as the Vice President of India is in progress. Although, the Chairman shall have the right to speak and take part in such meetings, he or she shall not have the right to vote during such meetings. The same provisions apply for Deputy Chairman too in case any resolution calling for his removal as the Deputy Chairman is in progress.

 

 

PRESIDING OFFICERS OF THE HOUSE OF THE PEOPLE (ARTICLE 93 – 96)

 

 

ARTICLE 93

 

SPEAKER AND DEPUTY SPEAKER OF LOK SABHA (HOUSE OF THE PEOPLE)

The Lok Sabha shall, as soon as may be, choose two members of the House to be respectively the Speaker and the Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the House shall choose another member to be Speaker or Deputy Speaker, as the case may be.

 

DESCRIPTION

The Speaker as well as the Deputy Speaker of the Lok Sabha shall be elected by the elected members of Lok Sabha amongst themselves. It is to be noted that the nominated members of the House do not vote. They shall normally hold the office during the life of the House. In case of vacancy arising out of any reason, the House must elect new officers as soon as possible.

PRO TERM SPEAKER

After elections to the Lok Sabha, the President appoints the senior most member by age among the newly elected members as a Pro Term Speaker, who administers the oath of office to the newly elected members, and conducts the election to the office of the Speaker. Once, the regular Speaker is elected, the office of the Pro Term Speaker terminates.

LIST OF SPEAKERS OF LOK SABHA SINCE INDEPENDENCE

S.NO NAME OF THE SPEAKER OF LOK SABHA PERIOD (FROM – TO)
1 Ganesh Vasudev Mavalankar 1952-56
2 M A Ayyangar

1956-57

1957-62

3 Sardar Hukam Singh 1962-67
4 Neelam Sanjiva Reddy 1967-69
5 Gurdial Singh Dhillon

1969-71

1971-75

6 Bali Ram Bhagat 1976-77
7 Neelam Sanjiva Reddy 1977 (March-July)
8 K S Hegde 1977-80
9 Balram Jakhar

1980-85

1985-89

10 Rabi Ray 1989-91
11 Shivraj Patil 1991-96
12 P A Sangma 1996-98
13 G M C Balayogi

1998-99

1999-02

14 Manohar Joshi 2002-04
15 Somnath Chatterjee 2004-09
16 Meira Kumar (First women Speaker of Lok Sabha) 2009-14
17  Sumitra Mahajan (The only other women Speaker of Lok Sabha)  2014-19
18 Om Birla 2019-Present

 

 

ARTICLE 94

 

VACANCY IN THE OFFICE OF SPEAKER AND DEPUTY SPEAKER OF LOK SABHA (HOUSE OF THE PEOPLE)

A member holding office as Speaker or Deputy Speaker of Lok Sabha,

  1. shall vacate his office if he ceases to be a member of Lok Sabha.
  2. may at any time, by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker, to the Speaker, resign his office.
  3. may be removed from his office by a resolution of Lok Sabha passed by a majority of all the then members of the House, provided that no such resolution shall be moved unless at least fourteen days’ notice has been given of the intention to move such a resolution.

Provided further that, whenever Lok Sabha is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of Lok Sabha after the dissolution.

 

DESCRIPTION

A vacancy is created in the office of Speaker or Deputy Speaker if he or she,

  1. ceases to be the member of Lok Sabha.
  2. resigns, by writing to his counterpart i.e. the Speaker must submit his or her resignation to the Deputy Speaker and vice versa.
  3. is removed by a resolution of Lok Sabha, passed by a simple majority of all the then members of the House. However, such a resolution can be moved only after 14 days’ notice has been given to the Speaker or the Deputy Speaker against whom such a resolution is being moved.

However, Article 94 provides that the Speaker shall not vacate his office on the dissolution of the House, despite not staying as the member of Lok Sabha anymore. The Speaker shall continue to hold his office until the first meeting of the Lok Sabha after the elections, when the new Speaker is elected.

 

 

ARTICLE 95

 

PROVISIONS DURING THE ABSENCE OF THE SPEAKER OF LOK SABHA (HOUSE OF THE PEOPLE)

  1. While the office of Speaker is vacant, the duties of the office shall be performed by the Deputy Speaker or, if the office of Deputy Speaker is also vacant, by such member of Lok Sabha as the President may appoint for the purpose.
  2. During the absence of the Speaker from any sitting of Lok Sabha, the Deputy Speaker or, if he is also absent, such person as may be determined by the rules of procedure of the House, or, if no such person is present, such other person as may be determined by the House, shall act as Speaker.

 

DESCRIPTION

The Deputy Speaker of the Lok Sabha discharges duties and functions of the Speaker of the Lok Sabha when,

  1. the office of the Speaker is vacant.
  2. the Speaker is not able to discharge his duties due to other reasons.

During the vacancy in the office of both Speaker as well as Deputy Speaker, the President may appoint any member of the Lok Sabha to discharge the duties and functions of the Speaker. However, as a matter of convention, during the absence of both Speaker as well as Deputy Speaker, the Speaker nominates any one of the ten member panel of Chairpersons to preside over the House when both Speaker and Deputy Speaker are not available.

 

 

ARTICLE 96

 

NO RIGHT TO PRESIDE TO SPEAKER OR DEPUTY SPEAKER DURING THE RESOLUTION FOR THEIR REMOVAL

  1. While any resolution for the removal of the Speaker from his office is under consideration, the Speaker, or while any resolution for the removal of the Deputy Speaker from his office is under consideration, the Deputy Speaker, shall not have the right to preside over any meetings of the House. In such situations, Clause (2) of Article 95 shall be applicable.
  2. While any resolution for the removal of the Speaker from his office is under consideration, the Speaker, or while any resolution for the removal of the Deputy Speaker from his office is under consideration, the Deputy Speaker, shall have the right to speak or to take part in any meetings of the House. Also, they shall not be entitled to vote at all on such resolution or on any other matter during such proceedings.

 

DESCRIPTION

The Speaker of the Lok Sabha shall not have the right to preside over the meetings of the House when any resolution calling for his removal as the Speaker of the House is in progress. Although, the Speaker shall have the right to speak and take part in such meetings, he or she shall not have the right to vote during such meetings. The same provisions apply for Deputy Speaker too in case any resolution calling for his removal as the Deputy Speaker is in progress.

 

 

ARTICLE 97

 

SALARIES AND ALLOWANCES OF THE PRESIDING OFFICERS

There shall be paid to the Chairman and the Deputy Chairman of Rajya Sabha, and to the Speaker and the Deputy Speaker of Lok Sabha, such salaries and allowances as may be respectively fixed by Parliament by law and, until provision in that behalf is so made, such salaries and allowances as are specified in the 2nd Schedule.

 

DESCRIPTION

The salaries and allowances of the presiding officers of Lok Sabha and Rajya Sabha are to be determined by the 2nd Schedule of the Constitution unless determined by the Parliament through law. They are charged on the Consolidated Fund of India and are not subject to the annual vote of Parliament.

Under the provisions of this Article, the Parliament enacted Salaries and Allowances of Officers of Parliament Act (1954). A Joint Committee is constituted from time to time to frame rules under the Act. The Committee consists of 10 members from Lok Sabha and 5 from Rajya Sabha.

The Speaker and the Deputy Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha, are entitled to receive a salary same as are payable to the Members of Parliament.

 

 

WORKING OF THE PARLIAMENT (ARTICLE 98 – 106)

 

 

ARTICLE 98

 

SECRETARIAT OF PARLIAMENT

  1. Each House of the Parliament shall have a separate secretarial staff, provided that nothing in this clause shall be construed (misunderstood) as preventing the creation of posts common to both Houses of the Parliament.
  2. Parliament may by law regulate the recruitment and the conditions of service of persons appointed, to the secretarial staff of either House of Parliament.
  3. Until provision is made by Parliament under clause (2), the President may, after consultation with the Speaker of Lok Sabha or the Chairman of Rajya Sabha, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of Lok Sabha or Rajya Sabha.

 

DESCRIPTION

Each House of the Parliament is expected to have a separate secretarial staff. However, there could be certain posts common to both the Houses of the Parliament. The President may make rules regulating the recruitment and conditions of service of person appointed to such a Secretariat, unless the Parliament makes rules in that regard by law.

 

 

ARTICLE 99

 

OATH OF MEMBERS OF PARLIAMENT

Every member of either House of Parliament shall, before taking his seat, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the 3rd Schedule.

 

DESCRIPTION

Every member of the Parliament takes oath in front of the President, in accordance with the form set out for the purpose in the 3rd Schedule of the Constitution of India.

 

 

ARTICLE 100

 

VOTING AND QUORUM IN PARLIAMENT

  1. Except otherwise provided, all questions in the Parliament shall be decided by the majority of votes of the members present and voting, other than the presiding officers. The presiding officers shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes.
  2. The Parliament shall have the power to act despite any vacancies in the membership, and any proceedings in Parliament shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled to do so, actually sat and voted in such proceedings.
  3. Until Parliament by law otherwise provides, the quorum to constitute a meeting of either House of Parliament shall be one tenth of the total number of members of the House.
  4. If at any time during a meeting of a House there is no quorum, it shall be the duty of the chairman or Speaker, or person acting as such, either to adjourn the House or to suspend the meeting until there is a quorum.

 

DESCRIPTION

Except otherwise stated, all questions in the Parliament shall be decided by the simple majority of votes of the members present and voting, other than the presiding officers. Hence, in the first instance, the Speaker in Lok Sabha or the Chairman in Rajya Sabha won’t vote on any question to be decided in their respective Houses. However, in case of a tie, they can exercise their right to vote to break the tie. Simple majority means getting more than 50 percent votes of the members present and voting. 

Either House of the Parliament can act even if certain members are absent in the House. Also, any proceeding of either House shall not be invalid on the ground that someone not entitled to attend, participate or vote in such a proceeding, actually sat and voted in such proceedings.

Quorum refers to the minimum number of members to be present for any sitting of the House to be conducted. Article 100 provides that to conduct the business of either House of the Parliament, atleast one tenth of the total members of that House needs to be present.

If at any time during a meeting of the House, there is no quorum, it shall be the duty of the Speaker of Lok Sabha or the Chairman of Rajya Sabha, to either adjourn the House or suspend the meeting until there is a quorum again.

 

 

ARTICLE 101

 

VACATION OF SEATS OF PARLIAMENT

  1. No person shall be a member of both the Houses of Parliament and provision shall be made by the Parliament, by law, for vacation of seat in one House or the other, by such a person who is chosen as member of both the Houses.
  2. No person shall be a member both of Parliament and of a House of the Legislature of a state, and if a person is chosen a member both of Parliament and of a House of the Legislature of a state, then, at the expiration of such period as may be specified in rules made by the President, that person’s seat in Parliament shall become vacant, unless he has previously resigned his seat in the Legislature of the state.
  3. If a member of either House of Parliament
    1. becomes subject to any of the disqualifications mentioned in Article 102.
    2. resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant, provided that if the Chairman or the Speaker, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.
  4. If for a period of 60 days, a member of either House of the Parliament is, without the permission of the House, absent from all meetings thereof, the House may declare his seat vacant, provided that in computing the said period of 60 days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.

 

DESCRIPTION

A person cannot be a member of both the Houses of the Parliament at the same time. In case, a person gets elected to both the Houses of the Parliament, he or she is obliged to resign from any one House.

  • If a person is elected simultaneously to both the Houses, and if he has not yet taken his seat in either House, he can choose, within 10 days from the later of the dates on which he is chosen to those Houses, the House of which he would like to be a member. The member must intimate his choice in writing to the Secretary, Election Commission of India (ECI) within the 10-day window, failing which his seat in Rajya Sabha will fall vacant at the end of this period.
  • No such option is, however, available to a person who is already a member of one House and has contested the election for membership of the other House. So, if a sitting Rajya Sabha member contests and wins a Lok Sabha election, his seat in the Upper House becomes automatically vacant on the date he is declared elected to Lok Sabha. The same applies to a Lok Sabha member who contests an election to Rajya Sabha. 

Similarly, a person cannot be a member of Parliament as well as the Legislative Assembly of a state at the same time. A member of state legislatures who has been elected to Lok Sabha must resign his seat within 14 days from the date of declaration that he has been so chosen, failing which his seats in Lok Sabha shall automatically fall vacant.

In addition to the above scenarios, a seat may fall vacant in either House of the Parliament, if the member,

  1. becomes subject to any of the disqualifications mentioned in Article 102.
  2. resigns his seat by writing to the presiding officer of the House, he is member of.
  3. stays absent from the House he is member of, for more than 60 days, without permission of the House.

 

 

ARTICLE 102

 

DISQUALIFICATIONS FOR MEMBERSHIP OF THE PARLIAMENT

  1. A person shall be disqualified for membership of either House of the Parliament,
    1. if he holds any office of profit under the Government of India or the Government of any state, other than an office declared by Parliament by law not to disqualify its holder.
    2. if he is of unsound mind and stands so declared by a competent court.
    3. if he is an undischarged insolvent.
    4. if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State.
    5. if he is so disqualified by or under any law made by Parliament.
  2. A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the 10th Schedule.

 

DESCRIPTION

For the purposes of this Clause, a person shall not be deemed to hold an office of profit, under the Government of India or the Government of any State, by reason only that he is a Minister either for the Union or for such state.

Under sub-clause (e) of Clause (1), the Representation of People’s Act lays down the following grounds on which a person could be disqualified from membership of the Parliament:

  1. He should not have been found guilty of electoral malpractices by a court or Election Tribunal.
  2. He should not have failed to disclose the account of his election expenses within the time and in the manner prescribed.
  3. He should not have been convicted by a court in India of any offence and sentenced to imprisonment for a period of more than 2 years. Merely, filing of a case (civil or criminal) against a person does not bar him from being a member of the Parliament.
  4. He should not have been dismissed for corruption from a government service.
  5. He should not hold any office of profit in any corporation.
  6. He should not have any commercial interest in government contracts, works and services.

Clause (2) provides for disqualification on grounds of defection, as mentioned in the Tenth Schedule of the Indian Constitution. 

 

GROUNDS FOR DISQUALIFICATION OF A PERSON ON CHARGES OF DEFECTION

A person is disqualified on the grounds of defection under the 10th schedule if,

  1. he voluntarily gives up the membership of the party which had set him as a candidate in the election.
  2. he joins any other party after election.
  3. he abstains from voting or votes against the directions issued by the party, and the party has not accepted it within 15 days of such abstention or voting.
  4. he joins any political party, having contested the election independently.
  5. he joins any political party after six months of having been nominated to the house.

However, a member shall not be disqualified on grounds of defection, if his party as a whole merges with any other political party. Also, the member will not be disqualified if he doesn’t accepts the merger and opts to move out of his party. A merger is deemed to be valid only if atleast two third of the members of the party agree to such a merger.

The power to disqualify a member of Lok Sabha, on grounds of defection has been vested in the Speaker in case of Lok Sabha and the Chairman in case of Rajya Sabha. The decision of the Speaker or the Chairman shall be final, and cannot be challenged in any court of law. Unless there are ‘exceptional circumstances’, disqualification petitions under the Tenth Schedule should be decided by Speakers within three months. 

The Supreme Court has asked Parliament to amend the Constitution to strip the Speakers of their exclusive power to decide whether legislators should be disqualified or not under the anti-defection law. The Court has taken this view given the fact that the Speakers of the House generally belong to the political party in power, and as such are prone to political pressures as well as affiliations while deciding on such matters related to disqualification of members. The Court has suggested appointing an independent tribunal to determine the fate of an MP or an MLA who has switched sides for money and power.

 

10TH SCHEDULE OF THE INDIAN CONSTITUTION – ANTI DEFECTION LAW AND POLITICAL MERGERS

  1. It was inserted by the 52nd amendment (1985) to the constitution of India.
  2. Defection is an act by a member of a particular party of disowning his loyalty towards that particular party and pledging allegiance to another party. This is also known as ‘crossing the floor’. 
  3. Earlier, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’. The 91st Constitutional Amendment Act, 2003 changed this. Presently, at least two-thirds of the members of a party have to be in favour of a ‘merger’ for it to have validity in the eyes of the law. In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
  4. The presiding officer of the House (Chairman or the Speaker) takes the decision to disqualify a member. 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, and as such the decision of the Presiding Officer’s of the House regarding defection is subject to judicial review by the High Court and the Supreme Court. However, it held that there may not be any judicial intervention until the Presiding Officer gives his order. 

 

ANTI DEFECTION LAW – INDIVIDUAL RIGHTS Vs ORGANISATION

A utilitarian organisation like a neighbourhood laundry or a corporate business will collapse if the employees are given freedom to act as they want. But being utilitarian organisations they can apply coercion like cut in pay or denial of promotion to maintain discipline in the workforce. If that does not work, the authorities can sack the rogue employee(s). The employees who considers themselves a misfit in the organisation of course have the option to quit. However, in a voluntary organisation, such as a political party, there must be a continuous effort to keep the leadership and membership in a harmonious relation. The task is more complicated since in addition to internal issues, there could be outside influences on the internal dynamics of a political party. When individuals join a political party, they usually sign up an admission form giving the undertaking that they would abide by the rules of the party. If such rules become unpalatable to them, they have option either to split the party or quit it. To violate the rules and yet to remain within the party is nothing short of engaging in internal subversion which the party must eliminate. In an open liberal system, the options for a political party are limited i.e. it can demote or suspend or expel such members. 

In a representative democracy like ours the party members who become elected members of the legislature have the responsibility of being guided by the party whip, which is arrived at by party leadership through some accepted principle of decision making within the party. What would an MLA/MP who has some fundamental differences with the party’s decision do? Such an MLA/MP may of course vote against the party within the legislature. But such behaviour may come under the anti-defection law ,and the member can be labeled as a defector.

Considered politically, the issue has certain dimensions. First of all, it is necessary to remember that individuals join a party voluntarily, i.e they voluntarily accept the obligation to obey party rules and to be bound by party discipline. Secondly, when the members of a political party contest an election, they present themselves as party candidates to the electorate and use party symbol, programmes and funds. In India, independent candidates fare poorly in elections which conclusively shows the value of party identity. Once a person wins an election with party identity, he or she cannot have any moral or political right to hold on to the elected post and at the same time denounce his/her membership of the party or resign from the party. Any deviation from party line must accompany giving up the elected post as well as party membership. Hence, the anti defection law ensures that individual freedom of party members do not disrupt the functioning of their respective political party. If the party members feel at discord with party lines, they are always free to part ways with the party, and pursue the course they desire as per their individual will. Noted individuals, like Subhas Chandra Bose or Savarkar had left parties/organisations they loved (Indian National Congress and Hindu Mahasabha respectively) for similar reasons. So did Shyama Prasad Mukherjee.

 

 

ARTICLE 103

 

DECISION OF DISQUALIFICATION FROM PARLIAMENT

  1. If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final.
  2. Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.

 

DESCRIPTION

In case of disqualification of any member of Parliament on any of the grounds mentioned under Article 102 of the Constitution of India, the President has the final power to make decision, after consulting the Election Commission, the opinion of which shall be binding upon the President.

 

 

ARTICLE 104

 

PENALTY FOR PARTICIPATING IN PARLIAMENT WITHOUT AUTHORISATION

If a person sits or votes as a member of either House of Parliament before he has complied with the requirements of article 99, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the Union.

 

DESCRIPTION

This provision has somehow become irrelevant since such situation will not arise in any house these days because of adequate security arrangements around the legislative houses during the sessions. Even if such situation arises, the illegal trespasser in the house can be dealt under the provisions of the Indian Penal code. As such, it has been proposed to repeal this Article.

 

 

ARTICLE 105

 

POWERS AND PRIVILEGES OF THE HOUSES OF THE PARLIAMENT AND THEIR MEMBERS

  1. Subject to the provisions of this Constitution and to the rules regulating the procedure of the Parliament, there shall be freedom of speech in the Parliament.
  2. No member of the Parliament shall be liable to any proceedings in any court in respect of any thing said or any vote given by him in the Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
  3. In other respects, the powers, privileges and immunities of each House of the Parliament, and of its members and committees, shall be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the 44th Constitutional Amendment Act. 1978.
  4. The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.

 

DESCRIPTION

The members of Parliament have absolute freedom of speech and expression inside the Parliament. There cannot be any proceedings against the members for anything said or done by them within the Parliament. This includes freedom to publish anything under the authority of the Parliament, or to restrict the freedom of others to publish the proceedings of the House of the Parliament.

 

SALIENT FEATURES OF THE PRIVILEGES OF THE PARLIAMENT

  1. No House of the Parliament shall have the power to create a new privilege for itself, except by legislating in that regard. The courts have the power to determine whether a House possesses a particular privilege or not.
  2. Each House of the Parliament shall have the power to decide whether any of its privileges has been infringed, and the courts have no jurisdiction to interfere in this regard once a privilege is held to exist.
  3. Each House of the Parliament shall have the power to punish anyone for breach of its privileges or for contempt. The courts cannot interfere with the decision of the House, even if such a decision is erroneous.

 

CLASSIFICATION OF PRIVILEGES OF THE PARLIAMENT

The privileges of the Parliament are classified into two categories:

  1. Those which are enjoyed by the members individually.
  2. Those which are enjoyed by the Parliament collectively.

 

PRIVILEGES ENJOYED BY THE MEMBERS INDIVIDUALLY

  1. Freedom of Speech – A member of the Parliament shall not be answerable to any court of law for anything said within the four walls of the Parliament. Hence, while the Freedom of Speech of ordinary individuals is subject to restrictions imposed by Article 19(2), the Freedom of Speech of the members of the Parliament is unrestricted, subject to the rules framed by the House. Under the current rules of the Parliament, the only restrictions on the members’ Freedom of Speech are:
    1. The member shall not speak anything that adversely affects the dignity or decorum of the House.
    2. The member shall not discuss the conduct of any judge of the Supreme Court or the High Court, except when the resolution for their removal is in progress.
  2. Freedom from ArrestNo person (either a member or outsider) can be arrested and no legal process (criminal or civil) can be initiated within the premises of the house without the permission of the presiding officer of the house. However, outside the premises of the House, the immunity is available only in civil cases, and not in criminal cases or preventive detention. A member of Parliament cannot not be arrested, even outside the premises of the House during,
    1. the time when the House of which he is a member is meeting.
    2. the time when the Parliamentary Committee of which he is a member is meeting.
    3. the period of 40 days before and after the meeting of the House or the Committee of which he is a member of.
  3. Freedom from being a witness to a case – A member of the Parliament cannot be summoned without the leave (permission) of the House, to give evidence as a witness while the Parliament is in session.

 

PRIVILEGES ENJOYED BY THE HOUSE COLLECTIVELY

  1. The right to exclude others during any of its proceedings.
  2. The right to permit or restrain the publishing of any of its proceedings.
  3. The right to publish parliamentary misbehaviour. 
  4. The right to regulate the internal affairs of the House.
  5. The right to punish anyone (members as well as outsiders) for breach of its privileges.

 

Parliamentary Privileges in India have been enforced so that the respect of Parliament its members can be ensured. But it is observed that after winning the election, these representatives do not respect the public while on the other hand they expect that public should give them due respect. Apart from this, you may have noticed that Parliamentarians are often seen misbehaving with the officials and the general public. This is called misuse of parliamentary privileges. Therefore, it is the need of the hour that if government want to maintain the dignity of the democracy then it should make appropriate changes in the parliamentary privileges because nobody can be superior to the general public.

 

 

ARTICLE 106

 

SALARIES AND ALLOWANCES OF MEMBERS OF THE PARLIAMENT

Members of either House of Parliament shall be entitled to receive such salaries and allowances as may from time to time be determined by Parliament by law.

 

 

PROVISIONS RELATED TO BILLS IN THE PARLIAMENT (ARTICLE 107 – 111)

 

A Bill is a law (or statute) in draft form. Unless it is passed by the respective legislatures, it does not become a law.

There are three types of Bills in the Indian Parliament,

  1. Ordinary Bill – Any Bill other than the Money Bill, Financial Bill or the Constitution Amendment Bill.
  2. Money Bill – Any Financial Bill which contains only the provisions of Article 110.
  3. Financial Bill – Any Financial Bill other than the Money Bill. It may contain the provisions of Article 110 but it contains other revenue and expenditures as well.
  4. Constitution Amendment Bill –  A Bill seeking to change some provision of the Constitution.

The process of law making begins with the introduction of bill in either House of the Parliament, except in certain cases where it must be introduced in only one particular House. A bill can be introduced either by a minister or a member other than the minister. If a Bill is introduced by the minister, it is known as Government Bill, while if it is introduced by a member other than the minister, it is known as Private Member Bill. Since 1952, only 14 Private Member Bills have been passed. A minister or a member has to give 7 days prior notice to the Speaker of Lok Sabha or the Chairman of Rajya Sabha of the intention to introduce a bill. The Speaker or the Chairman, as the case may be, allocates the time for the introduction of the Bill.

Money/appropriation bills and financial bills can be introduced only in the Lok Sabha. The Speaker of Lok Sabha decides whether a bill is a money bill or not. The Vice-President of India, who is ex-officio Chairman of the Rajya Sabha, decides whether a bill is a money bill or not when the bill is introduced in the Rajya Sabha.

 

 

ARTICLE 107

 

ORIGIN AND PASSAGE OF BILLS IN THE PARLIAMENT

  1. Subject to the provisions with respect to Money Bills and other financial Bills, a Bill may originate in either House of Parliament.
  2. Subject to the provisions with respect to Money Bills and Joint Sitting of the two Houses, a Bill shall not be deemed to have been passed by the Houses of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.
  3. A Bill pending in Parliament shall not lapse by reason of the prorogation of the Houses.
  4. A Bill pending in the Council of states which has not been passed by the House of the People shall not lapse on dissolution of the House of the People.
  5. A Bill which is pending in the House of the People, or which having been passed by the House of the People is pending in the Council of states, shall subject to the provisions of Money Bill, lapse on a dissolution of the House of the People.

 

DESCRIPTION

An Ordinary Bill can be initiated in either House of the Parliament. It does not require prior sanction of the President.

MONEY BILL can be initiated only in Lok Sabha, and needs the prior sanction of the President. The Rajya Sabha has no power to amend or reject the Bill. It can just suggest amendment which the Lok Sabha may or may not accept. The President may either give or withhold assent to a Money Bill. Under the Constitution, a Money Bill cannot be returned to the House by the President for reconsideration.

FINANCIAL BILL OF FIRST CLASS i.e. a Financial Bill which contains certain provisions of Article 110, has two features in common with the Money Bill i.e. it can be introduced only in Lok Sabha and needs prior sanction of the President. However, the Rajya Sabha has the power to amend or reject such a Bill. In case of a deadlock, the President may call for joint session. Such a bill can be returned to the House by the President for reconsideration but if it is passed again and returned to the President, he must give his assent to it. 

FINANCIAL BILL OF SECOND CLASS i.e. a Financial Bill which contains provisions involving expenditure from the Consolidated Fund of India, but does not include any of the matters mentioned in Article 110, may be initiated in either House of the Parliament. The Rajya Sabha has the power to amend or reject such a Bill. Although, it does not need prior sanction of the President to initiate such a Bill, but such a Bill must not be passed in either House unless the President has recommended consideration of the Bill. In other words, Presidents prior recommendation is not a necessary condition for the introduction of the Bill but it shall be sufficient for passing the Bill. Such a bill can be returned to the House by the President for reconsideration but if it is passed again and returned to the President, he must give his assent to it. 

 

STAGES OF A BILL

  1. FIRST READING – The Bill is introduced in the House by a minister or a member. It is necessary for a member-in-charge of the bill to ask for the leave (permission) of the house to introduce the bill. If leave is granted by the house, the bill is introduced. If the motion for leave to introduce a bill is opposed, the speaker may, in his discretion, allow a brief explanatory statement to be made by the member who opposes the motion and the member-in-charge who moved the motion. Thereafter, the question is put to the vote of the house. However, the motion for leave to introduce a finance bill or an appropriation bill is forthwith put to the vote of the house, without any discussion. When the House grants the leave (permission) to introduce the Bill, the mover of the Bill introduces it by reading its title and objectives. At this stage, no discussion on the Bill takes place. Later, the Bill is published in the Gazette of India. If however, the Bill gets published in the Gazette before its introduction, leave of the House to introduce the Bill is not necessary.
  2. SECOND READING – It is the most important stage in the making of a law. Here the Bill is discussed in detail. There are three stages,
    1. General Discussion Stage – The printed copies of the Bill are distributed to all the members. The principles of the Bill and its provisions are discussed generally but the details of the Bill are not discussed. At this stage, the House can take any one of the following actions:
      1. That the Bill be taken into consideration immediately.
      2. That the Bill be referred to a select committee of the House.
      3. The the Bill be referred to the joint committee of the two Houses.
      4. That the Bill be circulated to elicit public opinion.
    2. Committee Stage – The referred committee examines the Bill thoroughly and in detail, clause by clause. It can amend the provisions, although without altering the underlying principles. After completing the scrutiny, the committee reports the Bill back to the House.
    3. Consideration Stage – The House considers the provisions of the Bill clause by clause. Each clause is discussed and voted separately. At this stage, the members can also move amendments, which if accepted become part of the Bill.
  3. THIRD READING – At this stage, the debate is confined to the acceptance or rejection of the Bill as a whole, and no amendments are allowed. If the majority of the members present and voting accept the Bill, the Bill is regarded as passed by the House. Thereafter, the Bill is authenticated by the Presiding Officer and transferred to the other House for its consideration and approval.
  4. BILL IN THE OTHER HOUSE – In the other House too, the Bill passes through all three readings as in the originating House. Thereafter,  there are four actions this House may take upon the Bill,
    1. It may pass the Bill, without any amendments. This is known as Direct Pass. The Bill is then presented to the President for his assent.
    2. It may pass the Bill, with amendments and return it to the originating House for consideration. If the originating House accepts such amendments with simple majority of members present and voting, the Bill shall be presented to the President for his assent. In case, such amendments are not accepted by the originating House, there is a deadlock, and the Bill is deemed to be passed only if the majority of members present and voting in the Joint Sitting called upon by the President vote in favour of the Bill. 
    3. It may reject the Bill. In this case, there is a deadlock, and the Bill is deemed to be passed only if the majority of members present and voting in the Joint Sitting called upon by the President vote in favour of the Bill. 
    4. It may not take any action and thus keep the Bill pending.
  5. ASSENT OF THE PRESIDENT – The President can take any of the following actions when a Bill is presented to him for his assent:
    1. He may grant his assent to the Bill, in which case it becomes a law.
    2. He may withhold his assent to the Bill, in which case it ends.
    3. He may return the Bill for reconsideration of the Houses. If the Bill is passed again by both the Houses of the Parliament again, with or without any amendments, the President is bound to give his assent to the Bill, in which case it becomes a law. Thus, the President enjoys only ‘suspensive veto’ in this case.

 

 

ARTICLE 108

 

JOINT SITTING OF BOTH THE HOUSES IN CERTAIN CASES

As regards the Money Bill, the question of deadlock doesn’t arise since the Lok Sabha has the final powers to pass it. Also in case of disagreement between the two Houses of the Parliament, a Bill for amendment of the Constitution shall end there itself without any joint session to resolve the deadlock.

As regards other Bills (including the Financial Bill), the Constitution provides the machinery to resolve the deadlock between the two Houses over the passage of a Bill, by providing for joint sitting of the two Houses summoned by the President and presided over by the Speaker of Lok Sabha. No such notification can be made by the President if the Bill has already lapsed due to dissolution of the Lok Sabha. However, if the President has notified his intention of holding a joint session, the subsequent dissolution of the Lok Sabha won’t stand in the way of holding the joint session.  During the absence of the Speaker of Lok Sabha, the Deputy Speaker of Lok Sabha, or if he is also absent, the Deputy Chairman of Rajya Sabha, shall preside over such a joint session of both the Houses of the Parliament. 

The President may call for Joint Session, if

  1. A Bill has been passed by one House but rejected by the other.
  2. A Bill has been passed by one House, and returned by the other House with amendments that are not accepted by the originating House. In joint session, in addition to the amendments that have caused the disagreement between the two Houses, only those amendments can be added which become necessary owing to delay in the passage of the Bill.
  3. A Bill has been passed by one House, and more than 6 months have elapsed from the date of receipt of the Bill by the other House, and the Bill is still pending with the other House. In counting the period of 6 months, no time is counted for the period when the House (with which the Bill is pending) is prorogued or adjourned for more than four consecutive days.

The quorum to constitute a joint session is one tenth of the total membership of both the Houses of the Parliament. The joint sitting is governed by the rules of procedure of Lok Sabha and not of Rajya Sabha. 

If the Bill in dispute is passed by the simple majority of the total members of both the Houses of the Parliament, present and voting in the joint sitting, the bill is deemed to have been passed by both the Houses. 

Joint session of Indian parliament has been called for only 4 bills viz,

  1. The first joint session of the Parliament was held in 1961 to pass Dowry Prohibition Bill.
  2. The second joint session of the Parliament was held in 1978 to pass Banking Service Commission ( Repeal) Bill.
  3. The third joint session of the Parliament was held in 2002 to pass Anti- Terrorism Bill.
  4. The fourth joint session of the Parliament was held in 2008 but it failed to pass the Bill for Women Representation (to reserve 50 percent of all seats in the Lower house of Parliament of India, the Lok Sabha, and in all state legislative assemblies for women).

 

 

ARTICLE 109

 

SPECIAL PROCEDURE FOR MONEY BILL

  1. A Money Bill shall not be introduced in Rajya Sabha.
  2. After a Money Bill has been passed by Lok Sabha, it shall be transmitted to Rajya Sabha for its recommendations, which shall within a period of fourteen days from the date of its receipt of the Bill return the Bill to Lok Sabha with its recommendations, which may thereupon either accept or reject all or any of its recommendations.
  3. If Lok Sabha accepts any of the recommendations of Rajya Sabha, the Money Bill shall be deemed to have been passed both Houses with the amendments recommended by Rajya Sabha, accepted by Lok Sabha.
  4. If LoK Sabha does not accept any of the recommendations of Rajya Sabha, the Money Bill shall be deemed to have been passed by both Houses in the form in which it was passed by Lok Sabha without any of the amendments recommended by Rajya Sabha.
  5. If a Money Bill passed by Lok Sabha, and transmitted to Rajya Sabha for its recommendations, is not returned to Lok Sabha within the said period of fourteen days, it shall be deemed to have been passed by both Houses at the expiration of the said period in the form in which it was passed by Lok Sabha.

 

 

ARTICLE 110

 

MONEY BILL

  1. For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely,
    1. The imposition, abolition, remission, alteration, or regulation of any tax.
    2. The regulation of the borrowing of money, or the giving of any guarantee by the Government of India, or the amendment of a law with respect to any financial obligations undertaken or to be undertaken by the Government of India.
    3. The custody of the consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund.
    4. The appropriation of moneys out of the consolidated Fund of India.
    5. The declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure.
    6. The receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State.
    7. Any matter incidental to any of the matters specified in sub clause (a) to (f).
  2. A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.
  3. If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final.
  4.  There shall be endorsed on every Money Bill when it is transmitted to the Council of States under Article 109, and when it is presented to the President for assent under Article 111, the certificate of the Speaker of the House of the People signed by him that it is a Money Bill.

 

DESCRIPTION

The Constitution provides that no tax shall be levied without the authority of the law. Therefore, the Executive cannot impose any tax without the legislative sanction. However, the executive can vary the rate of an existing tax, without the need of Parliamentary approval. Similarly, the Constitution provides that no money shall be borrowed by the Government of India, except by the provisions in that regard, sanctioned by the Parliament. Also, no public money shall be spent by the Executive, unless such an expenditure is sanctioned by the Parliament.

 

 

ARTICLE 111

 

PRESIDENTIAL ASSENT TO THE BILL

The President can take any of the following actions when a Bill is presented to him for his assent:

    1. He may grant his assent to the Bill, in which case it becomes a law.
    2. He may withhold his assent to the Bill, in which case it ends.
    3. He may return the Bill for reconsideration of the Houses, except in case of the Money Bill where he is bound to either grant his assent or withhold his assent. If the Bill is passed again by both the Houses of the Parliament again, with or without any amendments, the President is bound to give his assent to the Bill, in which case it becomes a law. Thus, the President enjoys only ‘suspensive veto’ in this case.

 

 

ANNUAL FINANCIAL STATEMENT – THE BUDGET (ARTICLE 112 – 116)

 

 

ARTICLE 112

 

ANNUAL FINANCIAL STATEMENT – BUDGET

  1. Every financial year, the President shall cause to be laid before both the Houses of Parliament a statement of the estimated receipts and expenditure of the Government of India for that year, in this Part referred to as the ‘annual financial statement’.
  2. The estimates of expenditure embodied in the annual financial statement shall show separately – 
    1. the sums required to meet expenditure described by this Constitution as expenditure charged upon the Consolidated Fund of India.
    2. the sums required to meet other expenditure proposed to be made from the Consolidated Fund of India, and shall also distinguish expenditure on revenue account from other expenditure.
  3. The following expenditure shall be expenditure charged on the consolidated Fund of India,
    1. the emoluments and allowances of the President and other expenditure relating to his office.
    2. the salaries and allowances of the Chairman and the Deputy Chairman of the Council of States and the Speaker and the Deputy Speaker of the House of the People.
    3. debt charges for which the Government of India is liable.
    4. the salaries, allowances and a pensions payable to or in respect of Judges of the Supreme court.
    5. the pensions payable to or in respect of Judges of any High Court. Note that salaries and allowances of the Judges of the High Court are not charged on the consolidated fund of India.
    6. the salary, allowance and pension payable to or in respect of the Comptroller and Auditor-General of India.
    7. any sums required to satisfy any judgement, decree or award of any court or arbitral tribunal.
    8. any other expenditure declared by this Constitution or by Parliament by law to be so charged.

 

DESCRIPTION

The financial business of the Parliament starts with the presenting of the Annual Financial Statement, commonly known as the Budget, which is presented by the Union Finance Minister on the recommendation of the President of India. The Budget Division of the Department of Economic Affairs in the finance ministry is the nodal body responsible for producing the Budget. The Government presents it on the first day of February so that it could be materialised before the beginning of new financial year in April. Until 2016 it was presented on the last working day of February by the Finance Minister in Parliament. The budget, which is presented by means of the Finance bill and the Appropriation bill has to be passed by Lok Sabha before it can come into effect on 1 April, the start of India’s financial year.

The first Union budget of independent India was presented by R. K. Shanmukham Chetty on 26 November 1947.

The term Budget, however, has nowhere been used in the Constitution. The budget contains the following items:

  1. Estimates of revenue and capital receipts.
  2. Ways and means to raise the revenue.
  3. Estimates of Expenditure.
  4. Details of the actual receipts and expenditure of the closing financial year, and reasons for any deficit or surplus that year.
  5. Economic and Fiscal policies of the coming year.

There are two types of expenditures estimates in the budget:

  1. Expenditure charged upon the Consolidated Fund of IndiaThe expenditure that is provided by the Constitution itself to be done from the Consolidated Fund of India.
  2. Other expenditure from the Consolidated Fund of IndiaThe expenditure that is authorised by the Parliament to be done from the Consolidated Fund of India. 

Until 2016, the Government of India used to have two budgets, namely, the Railway Budget and the General Budget. While the former consisted of the estimates of receipts and expenditure of only the Ministry of Railways, the latter consisted of the estimates of receipts and expenditure of all the ministries of the Government of India. In 2016, the Government of India approved the merger of the Railway Budget and the General budget from next year, ending a 92-year-old practice of a separate budget for the nation’s largest transporter. The Railway Budget was separated from the General Budget in 1924, on the recommendation of ACWORTH COMMITTEE (1921)

 

 

ARTICLE 113

 

PROCEDURE IN PARLIAMENT WITH RESPECT TO BUDGET ESTIMATES

  1. The estimates related to the expenditure charged upon the consolidated fund of India, shall not be, submitted to vote of the Parliament, but nothing in this clause, shall prevent the discussion in either House of Parliament of any of those estimates.
  2. The estimates related to the other expenditures from the consolidated fund of India must be submitted for the vote of Lok Sabha, in the form of demand for grants. Lok Sabha shall have the power to assent or refuse to any demand, or to assent to any demand subject to a reduction the amount specified therein.
  3. No demand for a grant shall be made except on the recommendation of the President.

DESCRIPTION

In practice, the presentation of the Annual Financial Statement is followed by the general discussion in both the Houses of the Parliament. After the general discussion over the Budget is over, the Parliament is adjourned for about three to four weeks. During the period, the standing committees of the Parliament examine and discuss in detail the demands for grants of the concerned ministries, and prepare reports for the same. These reports are then submitted to the Parliament for consideration. 

The estimates, other than those charged upon the consolidated fund of India, are then placed before the Lok Sabha in the form of Demand for Grants. The voting for Demand for Grants is the exclusive business of the Lok Sabha. Rajya Sabha has no role to play in Demand for Grants. As such, it can neither reject nor amend the Demand for Grants. No demand for grant can be made without the permission of the President.

The demands are presented ministry wise. During this stage, the members of the Parliament can discuss the details of the Budget. They can also move motions to reduce any demand for grant. Such motions are called as ‘Cut Motion’ which are of three types:

  1. Policy Cut Motion – It represents the disapproval of the policy underlying the demand. It states that the demand be reduced to INR 1.  
  2. Economy Cut Motion – It represents the economy (saving) that can be affected in the proposed expenditure. It states that the demand be reduced by certain specific amount.
  3. Token Cut Motion – It represents a specific grievance against a policy measure of the government. It states that the demand be reduced by INR 100.

A Cut Motion, to be admissible, must satisfy the following conditions:

  1. It must be introduced in Lok Sabha only.
  2. It must relate to one demand only, and must be clearly expressed.
  3. It must not suggest amendments or repeal of existing laws.
  4. It must relate to only those matters which come under the purview of Union Government.
  5. It must not relate to the expenditure charged on the Consolidated Fund of India.
  6. It must not relate to any matter pending adjudication by the court.
  7. It must not raise a question of privilege. 
  8. It must not revive a discussion on a matter that has already been discussed in the current session.

However, the Cut Motion are mostly symbolic, as they never get passed since the government of the day, enjoys majority of the House. Their passage implies lack of confidence in the government of the day, because passage of such cut motion would imply that the majority of the House disapproves the policy measures of the government. 

On the last day, the Speaker puts all the remaining demands to vote and disposes them whether they have been discussed or not. This is known as Guillotine.

 

 

ARTICLE 114

 

APPROPRIATION BILL

  1. As soon as may be after the grants under article 113 have been made by the Lok Sabha, there shall be introduced a Bill to provide for the appropriation out of the Consolidated Fund of India of all moneys required to meet –
    1. the grants approved by the Lok Sabha; and
    2. the expenditure charged on the Consolidated Fund of India but not exceeding in any case the amount shown in the statement previously laid before Parliament.
  2. No amendments shall be proposed to any such Bill in either House of Parliament which will have the effect of varying the amount or altering the destination of any grant so made or of varying the amount of any expenditure charged on the Consolidated Fund of India, and the decision of the person presiding as to whether an amendment is inadmissible under this clause shall be final.
  3. Subject to the provisions of articles 115 and 116, no money shall be withdrawn from the Consolidated Fund of India except under the bill for appropriation passed in accordance with the provisions of this article.

 

DESCRIPTION

As soon as the Demand for Grants has been voted by the Lok Sabha, there shall be introduced an Appropriation Bill to provide for appropriation of money out of the Consolidated Fund of India. The Bill needs to be passed as a Money Bill, subject to the condition that no amendment shall be proposed to such a bill by either House of the Parliament. The Appropriation Bill becomes the Appropriation Act, after it is assented by the President. This act authorises the government of the day to withdraw money from the Consolidated Fund of India. 

The Constitution provides that no money shall be appropriated from the Consolidated Fund of India except by the authority of the law. It follows therefore, that the Executive cannot spend public money without parliamentary sanction.

 

 

ARTICLE 115-116

 

VARIOUS TYPE OF GRANTS IN ADDITION TO THOSE UNDER ESTIMATES

In addition to the budget that contains the ordinary estimates of income and expenditure of the Government of India for one financial year, the Constitution also provides provisions for some extraordinary grants under special circumstances. These are:

VOTE ON ACCOUNT

The government may need money to function till the time Appropriation Bill is passed. To overcome this functional difficulty, the Constitution provides Lok Sabha the power to sanction any grant in advance in respect to the estimated expenditure till the time Appropriation Bill gets passed.  This provision is known as Vote on Account. It is passed after the general discussion on the Budget is over. It is generally granted for two months, for an amount, generally one sixth of the total Demand for Grants.

An interim budget is not the same as a ‘Vote on Account’. While a ‘Vote on Account’ deals only with the expenditure side of the government’s budget, an interim budget is a complete set of accounts, including both expenditure and receipts. An interim budget gives the complete financial statement, very similar to a full budget. An outgoing government is required to present an interim budget if its tenure is about to come to an end due to impending General Elections. In such situations, the task of presenting a full Budget is left for the next government. Under the Interim Budget, Parliament clears the government’s vote-on-account which allows it to meet its expenses until the new Parliament considers and passes a full Budget for the remaining year. In the case of government changes due to General Elections and not because of losing a trust vote situation, the vote-on-account is given for a period of four months.Constitutionally, in the Interim Budget, the government can make tax changes but in all the interim budgets since Independence, outgoing governments have respected the fact that it is only a custodian for a few months and have refrained from making big-ticket changes or new schemes or plans.

Usually, an Interim Budget is presented by the outgoing government before the General Elections for Lok Sabha held every five years. So, far there have been fourteen instances when Interim Budgets were presented in the Parliament.

VOTE ON CREDIT

It is a blank cheque given the Government of India to meet any unforeseen demand.

SUPPLEMENTARY GRANT

It is granted when the amount authorised by the Parliament for a particular demand for the current fiscal year is found to be insufficient for that year.

ADDITIONAL GRANT

It is granted when a need has arisen for an expenditure, not contemplated in the budget for the current fiscal year.

EXCESS GRANT

It is granted when money has been spent in excess on some demand for the current year. Such excess demands must be approved by the Public Accounts Committee of the Parliament before these are presented for voting in the Lok Sabha.

EXCEPTIONAL DEMAND

It is granted for a special purpose.

TOKEN GRANT

It is granted when the funds needs for an expenditure, not contemplated in the budget, could be made available through reappropriation of funds. Reappropriation involves transfer of funds from one head to the other. It does not involve any additional expenditure.

 

 

MISCELLANEOUS PROVISIONS (ARTICLE 117 – 122)

 

 

ARTICLE 117

 

SPECIAL PROVISIONS FOR FINANCE BILL

  1. A Bill or amendment making provision for any of the matters specified in sub-clauses (a) to (f) of clause (1) of Article 110 shall not be introduced or moved except on the recommendation of the President and such a Bill or amendment shall not be introduced in the Rajya Sabha, provided that no recommendation shall be required under this clause for the moving of an amendment making provision for the reduction or abolition of any tax.
  2. A Bill or amendment shall not be deemed to be a Finance Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alternation or regulation of any tax by any local authority or body for local purpose.
  3. A Bill which, if enacted and brought into operation, would involve expenditure from the Consolidated Fund of India shall not be passed by either House of Parliament unless the President has recommended to that House the consideration of the Bill.

 

DESCRIPTION

A Financial Bill of the first class i.e. a Financial Bill which contains certain provisions of Article 110, has two features in common with the Money Bill i.e. it can be introduced only in Lok Sabha and needs prior sanction of the President. However, the Rajya Sabha has the power to amend or reject such a Bill. In case of a deadlock, the President may call for joint session.

A Financial Bill of the second class i.e. a Financial Bill which does not contain provisions of Article 110, may be initiated in either House of the Parliament. The Rajya Sabha has the power to amend or reject such a Bill. However, it does not need prior sanction of the President to initiate such a Bill, but such a Bill must not be passed in either House unless the President has recommended consideration of the Bill. In other words, Presidents prior recommendation is not a necessary condition for the introduction of the Bill but it shall be sufficient for passing the Bill.

A Bill shall not be deemed to be a Finance Bill if it provides only for any of the matters listed below:

  1. Fines or penalties for violation of law.
  2. Fees for licenses and services rendered.
  3. Imposition, abolition, remission and alternation or regulation of taxes by any local authorities.
  Money Bill Finance Bill (First Class) Finance Bill (Second Class)
Provisions Only matters specified under Article 110 Any of the matters specified under Article 110, in addition to other provisions related to finances of the government. Provisions related to finances of the government, except matters specified under Article 110
Can be introduced in Lok Sabha? Yes Yes Yes
Can be introduced in Rajya Sabha? No No Yes
Can Rajya Sabha amend the provisions? Possibility of a deadlock or Joint Session? No Yes Yes
Prior recommendation of President needed for introducing the Bill? Yes Yes No
Prior recommendation of President needed for passing the Bill? Yes Yes Yes

 

 

ARTICLE 118

 

RULES OF PROCEDURE

  1. Subject to the provisions of this Constitution, each House of the Parliament may make rules for regulating its procedure and the conduct of its business.
  2. Until rules are made under clause (1), the rules in force immediately before the commencement of this Constitution with respect to the Legislature of the Dominion of India shall have effect in relation to Parliament, subject to such modifications and adaptations as may be made therein by the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha, as the case may be.
  3. The President, after consultation with the Chairman of the Rajya Sabha, and the Speaker of the Lok Sabha, may make rules with respect to the procedure with respect to joint sittings of, and communications between, the two Houses.
  4. At a joint sitting of the two Houses, the Speaker of the Lok Sabha, or in his absence such person as may be determined by rules of procedure made under clause (3), shall preside.

 

DESCRIPTION

Each House of the Parliament may make rules for regulating its procedure and the conduct of its business. The Speaker makes such rules for Lok Sabha while the Chairman makes such rules for Rajya Sabha. The President makes such rules for the Joint Sittings or communication between the two Houses of the Parliament.

PARLIAMENTARY COMMITTEES

Under the provisions of Article 118, the Parliament has constituted several Parliamentary Committees, which are an instrument of Parliament for its own effective functioning. These are important because of the following reasons –

  1. Given the volume of legislative business, discussing all Bills under the consideration of Parliament in detail on the floor of the House is impossible.
  2. Parliament deliberates on matters that are complex, and therefore needs technical expertise to understand such matters better. Committees help with this by providing a forum where members can engage with domain experts and government officials during the course of their study. 
  3. Committees also provide a forum for building consensus across political parties. Committees have closed door meetings, which allows them to freely question and discuss issues and arrive at a consensus.
  4. Committees also help in enforcing accountability of the Executive to the Parliament, by hearing from senior officials of the government in a closed setting, allowing for more detailed discussions.

After a Committee completes its study, it publishes its report which is laid in Parliament. Although, its recommendations are not binding upon the Parliament, they hold a lot of weightage, especially in the discussions that follow.

Parliamentary Committees are constituted by the presiding officers of the Houses of the Parliament, from among the members of the Parliament, in accordance with the provisions laid down by the Parliament under Article 118. A member of a Committee shall hold office for a term not exceeding one year.

Parliamentary Committees are broadly classified into two categories – Standing Committees and Ad-hoc Committees. Ad-hoc committees, also known as Select Committees, are appointed for a specific purpose and exist only until this purpose is fulfilled. On the other hand, standing committees are more permanent in nature, and are constituted from time to time. The standing committees are further divided into financial committees and departmentally-related standing committees (DRSCs). The presiding officer uses her discretion to refer a matter to a parliamentary committee but this is usually done in consultation with leaders of parties in the House. 

Some of the important Parliamentary Committees are as below –

FINANCIAL COMMITTEES

There are three Financial Committees – Committees on Estimates, Public Accounts and Public Undertakings – constitute a distinct group as they keep an unremitting vigil over Government expenditure and performance. While members of the Rajya Sabha are associated with Committees on Public Accounts and Public Undertakings, the members of the Committee on Estimates are drawn entirely from the Lok Sabha.

ESTIMATES COMMITTEE

    1. The committee consists of 30 members elected annually by the Lok Sabha from amongst its members according to the principle of proportional representation by means of single transferable vote. It is the largest Committee in the Parliament.
    2. The Chairperson of the committee is appointed by the Speaker of Lok Sabha from among the members of the committee.
    3. A minister is not eligible to be the member of this committee.
    4. The term of the committee is one year.
    5. The committee reports on ‘what economies, improvements in organisation, efficiency or administrative reform consistent with policy underlying the estimates’ may be effected. It also examines whether the money is well laid out within limits of the policy implied in the estimates and suggests the form in which estimates shall be presented to Parliament. 

PUBLIC ACCOUNTS COMMITTEE

    1. The committee consists of not more than 22 members (15 from Lok Sabha and 7 from Rajya Sabha), elected annually by the Lok Sabha from amongst its members according to the principle of proportional representation by means of single transferable vote.
    2. The Chairperson of the committee is appointed by the Speaker of Lok Sabha from among the members of the committee.
    3. A minister is not eligible to be the member of this committee.
    4. The term of the committee is one year.
    5. The committee –
      1. scrutinises appropriation and finance accounts of Government.
      2. examines public expenditure not only from legal and formal point of view to discover technical irregularities but also from economic point of view to bring out the cases of waste, extravagance, inefficiency, and corruption.
      3. examines money spent on any service in excess of amount granted by the Lok Sabha for that purpose during a financial year.
      4. examines the annual audit reports of the Comptroller and Auditor General of India.

PUBLIC UNDERTAKING COMMITTEE

    1. The committee consists of not more than 22 members (15 from Lok Sabha and 7 from Rajya Sabha), elected annually by the Lok Sabha from amongst its members according to the principle of proportional representation by means of single transferable vote.
    2. The Chairperson of the committee is appointed by the Speaker of Lok Sabha from among the members of the committee.
    3. A minister is not eligible to be the member of this committee.
    4. The term of the committee is one year.
    5. The committee –
      1. examines whether public undertakings are being run efficiently and managed in accordance with sound business principles and prudent commercial practices.
      2. examines reports of the Comptroller and Auditor-General.

DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEES

Besides the three Financial Committees, the Rules Committee of the Lok Sabha recommended setting up of 17 Department Related Standing Committees (DRSCs). Accordingly, 17 Department Related Standing Committees were set up in 1993. In 2004, rules were amended to provide for the constitution of 7 more such committees, thus raising the number of DRSCs from 17 to 24. As such, currently there are a total of 24 Departmental Standing Committees – 8 under Rajya Sabha and 16 under Lok Sabha. The functions of these Committees are as below –

  1. To consider the Demands for Grants of various Ministries/Departments of Government of India and make reports to the Houses.
  2. To examine such Bills as are referred to the Committee by the Chairman of Rajya Sabha, or the Speaker of Lok Sabha, as the case may be, and make reports thereon.
  3. To consider Annual Reports of ministries/departments and make reports thereon.
  4. To consider policy documents presented to the Houses, if referred to the Committee by the Chairman of Rajya Sabha, or the Speaker of Lok Sabha, as the case may be, and make reports thereon.
COMMITTEES UNDER LOK SABHA COMMITTEES UNDER RAJYA SABHA
  1. Committee on Agriculture
  2. Committee on Information Technology
  3. Committee on Defence
  4. Committee on Energy
  5. Committee on External Affairs
  6. Committee on Finance
  7. Committee on Food, Consumer Affairs and Public Distribution
  8. Committee on Labour
  9. Committee on Petroleum & Natural Gas
  10. Committee on Railways
  11. Committee on Urban Development
  12. Committee on Water Resources
  13. Committee on Chemicals and Fertilizers
  14. Committee on Rural Development
  15. Committee on Coal and Steel
  16. Committee on Social Justice and Empowerment
  1. Committee on Commerce
  2. Committee on Home Affairs
  3. Committee on Human Resource Development
  4. Committee on Industry
  5. Committee on Science & Technology, Environment & Forests
  6. Committee on Transport, Tourism and Culture
  7. Committee on Health and Family Welfare
  8. Committee on Personnel, Public Grievances, Law and Justice

COMMITTEES EXCLUSIVE TO LOK SABHA

  1. Committee on Empowerment of Women
  2. Committee on absence of Members from the sitting of the House
  3. Committee on installation of Portraits/Statues of National Importance
  4. Committee on Land Acquisition, Rehabilitation and Settlement

COMMITTEES EXCLUSIVE TO RAJYA SABHA

  1. Committee on Subordinate Legislation
  2. Committee on Government Assurances
  3. Committee on Ethics
  4. Committee on MPLADS (Member of Parliament Local Area Development Scheme)

 

DEVICES OF PARLIAMENTARY PROCEEDINGS

DEVICES DESCRIPTION
Question Hour

The first hour of every parliamentary sitting is slotted for this. During this time, the members ask questions and the ministers usually give answers. The questions are of following types –

  1. Starred question (distinguished by an asterisk) – It requires an oral answer and hence supplementary questions can follow.
  2. Unstarred question – It requires a written answer. Fresh unstarred questions cannot be asked during Question Hour or Zero Hour. However, the Minister is obliged to answer previous unstarred questions which have been raised after giving 10 days notice to the Minister. However, no supplementary question can be asked thereon.
  3. Short notice question – It is the one that is asked by giving a notice of less than ten days. It is answered orally.
  4. Questions to Private MembersA Question may also be addressed to a Private Member (Member of the House who is not part of the Council of Ministers), provided that the subject matter of the question relates to some Bill, Resolution or other matter connected with the business of the House for which that Member is responsible. The procedure in regard to such questions is same as that followed in the case of questions addressed to a Minister with such variations as the Speaker may consider necessary. 
Zero Hour

The time immediately following the Question Hour and before any listed business is taken up in the House has come to be popularly known as the `Zero Hour’.  As it starts around 12 noon, this period is euphemistically termed as `Zero Hour’.  For raising matters during the ‘Zero Hour’ in Lok Sabha, Members give notice between 8.30 a.m.  and  9.00 a.m. everyday to the Speaker stating clearly the subject which they consider to be important and wish to raise in the House.  It is, of course, for the Speaker to allow or not to allow for raising  such matters in the House.  The term `Zero Hour’ is not formally recognised in our parliamentary procedure.   

Closure Motion

It is a motion moved by a member to cut short the debate on a matter before the House. If the motion is approved by the House, debate is stopped forthwith and the matter is put to vote. There are four kinds of closure motions :

  1. Simple Closure – It is one when a member moves that the ‘matter having been sufficiently discussed be now put to vote’.
  2. Closure by Compartments In this case, the clauses of a bill or a lengthy resolution are grouped into parts before the commencement of the debate. The debate covers the part as a whole and the entire part is put to vote.
  3. Kangaroo Closure – Under this type, only important clauses are taken up for debate and voting and the intervening clauses are skipped over and taken as passed.
  4. Guillotine Closure It is one when the undiscussed clauses of a bill or a resolution are also put to vote along with the discussed ones due to want of time (as the time allotted for the discussion is over).
No-Confidence Motion Article 75 of the Constitution says that the council of ministers shall be collectively responsible to the Lok Sabha. It means that the ministry stays in office so long as it enjoys confidence of the majority of the members of the Lok Sabha. The Government must always enjoy majority support in the popular House to remain in power. If needed, it has to demonstrate its strength on the floor of the House by moving a Motion of Confidence and winning the confidence of the House. In view of the express Constitutional provision regarding collective responsibility of the Council of Ministers to the Lok Sabha, a motion expressing want of confidence in an individual Minister is out of order, since under the Rules, only a motion expressing want of confidence in the Council of Ministers as a body is admissible. Rule 198 of the Rules of Procedure and Conduct of Business in Lok Sabha lays down the procedure for moving a Motion of No-Confidence in the Council of Ministers. A Motion of No-confidence need not set out any grounds on which it is based. Even when grounds are mentioned in the notice and read out in the House, they do not form part of the No-confidence Motion. Also, in the case of a no-confidence motion, no conditions of admissibility have been laid down in the rules. Thus, the Lok Sabha can remove the ministry, and hence the Government from office by passing a no-confidence motion. The motion needs the support of 50 members to be admitted. However, the Constitution itself does not provide for ‘No-Confidence’ Motion. The motion of ‘No-Confidence’ needs to be introduced and passed in Lok Sabha only. Rajya Sabha has no role to play in it.
Privilege Motion It is concerned with the breach of parliamentary privileges by a minister. It is moved by a member when he feels that a minister has committed a breach of privilege of the House or one or more of its members by withholding facts of a case or by giving wrong or distorted facts. Its purpose is to censure the concerned minister.
Motion of Thanks The first session after each general election and the first session of every fiscal year is addressed by the president. In this address, the president outlines the policies and programmes of the government in the preceding year and ensuing year. This address of the president is discussed in both the Houses of Parliament on a motion called the ‘Motion of Thanks’. At the end of the discussion, the motion is put to vote. This motion must be passed in the House. Otherwise, it amounts to the defeat of the government. This inaugural speech of the president is an occasion available to the members of Parliament to raise discussions and debates to ex-amine and criticise the government and administration for its lapses and failures.
Calling Attention Motion It is introduced in the Parliament by a member to call the attention of a minister to a matter of urgent public importance, and to seek an authoritative statement from him on that matter. Like the zero hour, it is also an Indian innovation in the parliamentary procedure and has been in existence since 1954. However, unlike the zero hour, it is mentioned in the Rules of Procedure.
No-Day-Yet-Named-Motion It is a motion that has been admitted by the Speaker but no date has been fixed for its discussion. The Speaker, after considering the state of business in the House and in consultation with the leader of the House or on the recommendation of the Business Advisory Committee, allots a day or days or part of a day for the discussion of such a motion.
Censure Motion It is moved for censuring the council of ministers for specific policies and actions. If it is passed in the Lok Sabha, the council of ministers need not resign from the office. It should state the reasons for its adoption in the Lok Sabha. It can be moved against an individual minister or a group of ministers or the entire council of ministers.
Half-an-Hour Discussion It is meant for discussing a matter of sufficient public importance, which has been subjected to a lot of debate and the answer to which needs elucidation on a matter of fact. The Speaker can allot three days in a week for such discussions. There is no formal motion or voting before the House.
Short Discussion It is also known as two-hour discussion as the time allotted for such a discussion should not exceed two hours. The members of the Parliament can raise such discussions on a matter of urgent public importance. The Speaker can allot two days in a week for such discussions. There is neither a formal motion before the house nor voting. This device has been in existence since 1953.
Point of Order A Member can raise a Point of Order when the proceedings of the House do not follow the normal rules of procedure. A point of order should relate to the interpretation or enforcement of the Rules of the House or such articles of the Constitution that regulate the business of the House and should raise a question that is within the cognisance of the Speaker. It is usually raised by an opposition member in order to control the government. It is an extraordinary device as it suspends the proceedings before the House. No debate is allowed on a point of order.
Special Mention A matter which is not a point of order or which cannot be raised during question hour, half-an hour discussion, short duration discussion or under adjournment motion, calling attention notice or under any rule of the House can be raised under the special mention in the Rajya Sabha. Its equivalent procedural device in the Lok Sabha is known as ‘Notice (Mention) Under Rule 377’.
Adjournment Motion When there is an urgent matter of public importance, a member may propose that the business of the house be adjourned for discussing that matter. The motion needs the support of 50 members to be admitted. Unless atleast 50 members support the resolution calling for adjournment, the motion cannot be moved. Further, the motion can be moved only with the consent of the Speaker. Unless, the speaker is satisfied, the motion cannot be moved. In the exercise of the discretion, the Speaker can consult such members of the Parliament as he/she may deem necessary.
Lame Duck Session It refers to the last session of the existing Lok Sabha, after a new Lok Sabha has been elected. Those members of the existing Lok Sabha who could not get re-elected to the new Lok Sabha are called lame-ducks.

 

SESSIONS OF THE INDIAN PARLIAMENT

A session of the Indian Parliament is the time period during which a House meets almost every day continuously to transact business. There are usually three sessions in a year. They are the Budget Session (February to May), the Monsoon Session (July to September), and the Winter Session (November to December). Each meeting has two sittings – morning sitting from 11 am to 1 pm and post-lunch sitting from 2 pm to 6 pm.

A sitting of Parliament can be terminated by adjournment, adjournment sine die, prorogation or dissolution. Technically, a session of the Indian Parliament is the period between the first sitting of a House and its prorogation or dissolution. The period between the prorogation of a House and its reassembly in a new session is called ‘recess’.

SUMMONINGSummoning is the process of calling all members of the Parliament to meet. It is the duty of Indian President to summon each House of the Parliament from time to time. The maximum gap between two sessions of Parliament cannot be more than six months. In other words, the Parliament should meet at least twice a year.

ADJOURNMENTAn adjournment suspends the work in a sitting for a specified time, which may be hours, days or weeks. In this case, the time of reassembly is specified. An adjournment only terminates a sitting and not a session of the House. The power of adjournment lies with the presiding officer of the House.

ADJOURNMENT SINE DIEAdjournment sine die means terminating a sitting of Parliament for an indefinite period. In other words, when the House is adjourned without naming a day for reassembly, it is called adjournment sine die. It is used to indicate the final adjournment of an ongoing session of the Parliament. The power of adjournment sine die lies with the presiding officer of the House.  The presiding officer of a House can call a sitting of the House before the date or time to which it has been adjourned or at any time after the House has been adjourned sine die.

PROROGATIONProrogation means the termination of a session of the House by an order made by the President under article 85(2)(a) of the Constitution. Prorogation terminates both the sitting and session of the House. Usually, within a few days after the House is adjourned sine die by the presiding officer, the President issues a notification for the prorogation of the session. However, the President can also prorogue the House while in session. All pending notices (other than those for introducing bills) lapse on prorogation and fresh notices have to be given for the next session.

DISSOLUTIONA dissolution ends the very life of the existing House, and a new House is constituted after general elections are held.  Rajya Sabha, being a permanent House, is not subject to dissolution. Only the Lok Sabha is subject to dissolution.

 

 

ARTICLE 119

 

POWER TO REGULATE THE PARLIAMENTARY PROCEDURES THROUGH LAW

  1. Parliament may, for the purpose of the timely completion of financial business, regulate by law, the procedure of, and the conduct of business in, each House of Parliament in relation to any financial matter or to any Bill for the appropriation of moneys out of the Consolidated Fund of India.
  2. If, any such law is inconsistent with any rule made by a House of Parliament,  such law shall prevail.

 

DESCRIPTION

Article 119 provides that the Parliament may by law regulate the procedure of its Houses, and such a law shall prevail over the rules made by presiding officers of the respective Houses.

 

 

ARTICLE 120

 

LANGUAGE TO BE USED IN THE PARLIAMENT

  1. The business in Parliament shall be transacted in Hindi or in English, provided that the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha, or person acting as such, as the case may be, may permit any member who cannot adequately express himself in Hindi or in English, to address the House in his mother tongue.
  2. Unless the Parliament by law otherwise provides, this article shall, after the expiration of a period of 15 years from the commencement of this Constitution, have effect as if the words “or in English” were omitted from the original provision under clause (1).

 

DESCRIPTION

Article 120 provides that the business in Parliament shall be conducted in Hindi or in English only. However it provides the presiding officers of the Lok Sabha as well the Rajya Sabha, to allow a member to express himself in his mother tongue, if he cannot adequately expresses himself in Hindi or English. 

Also, Article 120 provides that after 15 years from the commencement of the Constitution, the business in Parliament shall be conducted in only Hindi, unless the Parliament by law provides for otherwise.

OFFICIAL LANGUAGES ACT (1963)

It allowed English to be used along with Hindi as the language of Parliamentary business.

 

 

ARTICLE 121

 

RESTRICTION ON DISCUSSIONS IN PARLIAMENT

No discussion shall take place in Parliament with respect of the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for impeachment for the removal of such a Judge.

 

 

ARTICLE 122

 

COURTS NOT TO ENQUIRE THE PROCEEDINGS OF THE PARLIAMENT

  1. The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.
  2. No officer or member of the Parliament, in whom powers are vested by the Constitution for regulating the procedure or the conduct of business or for maintaining order in Parliament, shall be subject to the jurisdiction of any court in respect of the exercise of such powers by him.

 

DESCRIPTION

The Supreme Court has held that Article 122 intends to protect the validity of proceedings from mere irregularity of procedure. However, the court ruled that a proceeding which may have elements of substantive illegality or unconstitutionality, in addition to be suffering from mere irregularity cannot be held protected from judicial scrutiny by Article 122. 

 

 

CHAPTER III – LEGISLATIVE POWERS OF THE PRESIDENT (ARTICLE 123)

 

 

ARTICLE 123

 

POWER OF THE PRESIDENT TO PROMULGATE ORDINANCES

  1. If at any time, except when both the Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
  2. An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance –
    1. shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions.
    2. may be withdrawn at any time by the President. [Explanation: Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.]
  3. If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

 

DESCRIPTION

Article 123 provides that the President shall have the power to legislate by Ordinances at a time when it is not possible to have a Parliamentary enactment on the subject immediately. The Ordinance making power is available to the President only when either of the two Houses of the Parliament has been prorogued or is not in session.

The ambit of the Ordinance making power of the President is same as that of the legislative powers of the Parliament i.e. it may legislate with respect to any subject over which the Parliament has the power to legislate. Thus, an Ordinance cannot contravene any of the Fundamental Rights more than an Act of the Parliament. Also, an Ordinance cannot be issued by the President over a subject which otherwise comes under the state list, unless there has been a proclamation of emergency in that state. An Ordinance issued by the President may be retrospective or may amend or repeal any Act of the Parliament. However, an Ordinance shall be of temporary duration, and the Parliament must legislate over the subject matter of the Ordinance, as soon as it convenes.

The Ordinance must be laid before the Parliament as soon as it reassembles and shall automatically cease to have effect at the expiration of 6 weeks from the date of reassembly of the Parliament,  unless disapproved earlier by the Parliament. If the two Houses of the Parliament reassemble on different dates, the period of 6 weeks will be counted from the later of those dates. It implies that the maximum duration of an Ordinance issued by the President can be 6 months 6 weeks, since six months is the maximum permissible gap between two sessions of the Parliament. If an Ordinance issued by the President is allowed to lapse without being placed before the Parliament, all the acts done and completed under the provisions of such an Ordinance before it lapses, remain valid and effective.

The power to issue Ordinances has to be exercised by the President on advice of his Council of Ministers, and not in the exercise of his individual discretion. To prevent the abuse of the power of the President to legislate by issuing ordinances, it is required that the bill seeking to approve or reject such an Ordinance is accompanied by a statement explaining the circumstances that necessitated immediate legislation through Ordinance. 

It must be noted here that the President’s decision to legislate by issuing such Ordinances is challengeable in the court of law, and if found arbitrary, the President may be subject to removal through impeachment.

 

 

KEY FACTS

 

  1. Uttar Pradesh (80), followed by Maharashtra, West Bengal, and Tamil Nadu, has the highest number of seats in Lok Sabha.
  2. Madhya Pradesh (6), followed by Jharkhand, Odisha and Chhattisgarh, has the highest number of seats reserved for STs in Lok Sabha.
  3. Uttar Pradesh (17), followed by West Bengal, Tamil Nadu and Bihar, has the highest number of seats reserved for the SCs in Lok Sabha.
  4. States having same number of seats in Lok Sabha are –
    1. Rajasthan and Andhra Pradesh (25 each)
    2. Assam and Jharkhand (14 each)
    3. Uttarakhand, and J&K (5 each)
    4. Arunachal Pradesh, Goa, Manipur, Meghalaya, Tripura, and Daman & Diu ( 2 each).
  5. Uttar Pradesh (31) has the highest number of members in Rajya Sabha, followed by Maharashtra (19) and Tamil Nadu (18).
  6. Among UT’s, only Puducherry and Delhi have members in Rajya Sabha. Puducherry has only one seat in Rajya Sabha, while Delhi has three seats.
  7. SECURITY DEPOSITS FOR ELECTIONS – In the Republic of India, candidates for election to the lower house of the parliament i.e. Lok Sabha must pay a security deposit of INR 25,000. For state assembly elections the amount is INR 10,000. For Scheduled Castes and Scheduled Tribes candidates the amounts are INR 12,500 and INR 5,000 respectively. Any candidate who fails to secure more than 10 percent of the total valid votes cast in a first-past-the-post voting system would both forfeit his or her deposit and bail rights.
  8. RESOLUTION OF A LEGISLATIVE BODYA Resolution is a formal expression of the sense, will or action of the Legislative Body.  Resolutions may be broadly divided into three categories –
    1. Resolutions which are expression of opinion by the House
    2. Resolutions which have statutory effect
    3. Resolutions which the House passes in the matter of control over its own proceedings
  9. QUESTION HOUR vs ZERO HOUR Question Hour is the first hour of a sitting session of India’s Lok Sabha devoted to questions that Members of Parliament raise about any aspect of administrative activity. The concerned Minister is obliged to answer to the Parliament, either orally or in writing, depending on the type of question raised. Zero Hour is the time after the Question Hour whereby the members can raise matters of great importance without prior notice. While the Question Hour is mentioned in the Rules of Procedure, the Zero Hour is not. A member has to give 10 days’ notice for a question to be asked in the Question Hour. During Zero Hour, members may raise any kind of question without any permission or prior notice.
  10. In 1997, the Committee on Empowerment of Women with members from both the Houses was constituted with a view to secure among other things, status, dignity and equality for women in all fields.
  11. In 1997, the Ethics Committee of the Rajya Sabha was constituted. The Ethics Committee of the Lok Sabha was constituted in 2000.
  12. MINISTRY OF PARLIAMENTARY AFFAIRS – The Ministry of Parliamentary Affairs is one of the key Ministries of the Union Government, entrusted with the task of efficiently handling diverse and enormous parliamentary work on behalf of the Government in the Parliament. As such, the Ministry of Parliamentary Affairs serves as an important link between the two Houses of Parliament and the Government in respect of Government Business in Parliament. Some of the salient features of Ministry of Parliamentary Affairs are as follows –
    1. Created in 1949 as a Department, it soon became a full-fledged Ministry with the allotment of more responsibilities and functions.
    2. The Ministry renders secretarial assistance to the Cabinet Committee on Parliamentary Affairs. The Ministry keeps a close contact with the Ministries/Departments of the Government in respect of Bills pending in the Parliament, new Bills to be introduced and Bills to replace Ordinances. The Ministry keeps a watch over the progress of Bills from the stage of approval by the Cabinet till the Bill is passed by both Houses of the Parliament.
    3. The Ministry constitutes Consultative Committees of Members of Parliament and makes arrangements for holding their meetings both during the session and the inter-session periods. However, it is to be noted that it does not nominates members to various committees formed by the Executive i.e. the Government of India. At present there are 34 such Committees attached to various Ministries which were required to hold about 204 meetings in a year. The guidelines regarding the composition and functioning of these Committees are formulated by this Ministry.
    4. The Ministry also administers –
      1. Salaries and Allowances of Officers of Parliament Act (1953)
      2. Salary, Allowances and Pension of Members of Parliament Act (1954)
      3. Salary and Allowances of Leaders of Opposition in Parliament Act (1977)
      4. Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act (1998)
  13. DECORUM It refers to maintenance of code of conduct in the Parliament through certain norms, rules, customs and conventions. Whether inside the House or outside of it, members’ conduct should be in keeping with the dignity and the prestige of Parliament. Some of the do’s and don’ts to maintain Parliamentary decorum are –
    1. Member should be present in the House a few minutes before the scheduled time, which is ordinarily 11 AM. At the appointed time in the House, the Marshal  announces the arrival of the Chairman, whereupon the Chairman  immediately enters the Chamber. Members should stop all conversation, be in their seats and rise in  their places. Members who enter the House at that time should stand silently in the gangway, till the Chairman takes the Chair and thereafter they should go to their seats.
    2. There should be no ‘Thanks’, ‘Thank you’,  ‘Jai Hind’, ‘Vande Mataram’ or any other slogan raised in the House.
    3. Rulings given by the presiding officers should not be criticised directly or indirectly inside or outside the House.
    4. Members should bow to the Chair while entering or leaving the House and also before taking or leaving their seats.
    5. Crossing the floor i.e. crossing between the member addressing the House and the Chair is considered as breach of Parliamentary etiquette. Members should never pass between the Chair and any member who is speaking.
    6. Members should not sit with their backs to the Chair.
    7. A member should not interrupt any other member who is speaking, by disorderly argument, expression or noise or in any other disorderly manner.
    8. Corruption in the execution of their duties by members is considered a serious breach of privilege. The acceptance of any fee, compensation or reward or an agreement to that effect in return for advocating the claims of anybody or for opposing any Bill, resolution, or matter submitted for consideration of the House or for drafting or advising on any Bill, petition or document submitted or proposed to be submitted to the House falls in this category and is treated as a case of breach of privilege. Giving of evidence by a member in a court of law in relation to any debates or proceedings in the House or any committee thereof without the leave of the House of which he is a member is considered a misconduct. 
  14. INTERPELLATIONIt refers to the formal request made by the Parliament to the respective Government. In many parliaments, each individual member of parliament has the right to submit questions (possibly a limited amount during a certain period) to a member of the government. The respective minister or secretary is then required to respond and to justify government policy. Interpellation thus allows the parliament to supervise the government’s activity.
  15. YIELDING THE FLOORThe speaker can ask a member of the house to stop speaking and let another member speak.
  16. MEMBER OF PARLIAMENT LOCAL AREA DEVELOPMENT SCHEME (MPLADS)
    1. MPLADS is a scheme of Government of India since 1993 that enables the members of parliaments (MP) to recommend developmental work in their constituencies with an emphasis on creating durable community assets based on locally felt needs.
    2. Initially, this scheme was administered by Ministry of Rural Development. However, since 1994, Ministry of Statistics and Programme Implementation (MOSPI) has been looking into its working. 
    3. Elected Members of Rajya Sabha representing the whole of the state as they do, may select works for implementation in one or more district(s) of the state as they may choose. Nominated Members of the Lok Sabha and Rajya Sabha may also select works for implementation in one or more districts, anywhere in the country. MPs can also recommend work of upto INR 25 lakhs per year outside their constituency or state of election to promote national unity, harmony and fraternity. MPs can recommend work of upto INR 25 lakh for Natural Calamity in the state and upto INR 1 crore in the country in case of Calamity of Severe Nature.  MPs need to recommend work worth at least 15 percent and 7.5 percent of their funds to create assets in areas inhabited by Scheduled Castes (SCs) and Scheduled Tribes (STs) respectively. 
    4. Each MP is allocated INR 5 crore per year since 2011-12. Funds are non lapsable in nature i.e. in case of non-release of fund in a particular year it is carried forward to the next year. 
    5. Among states, Telangana has recorded the highest utilisation to allocation ratio. It is closely followed by Sikkim, Chhattisgarh and Kerala. Among UTs, Lakshadweep has recorded the highest utilisation to allocation ratio. It is closely followed by Andaman and Nicobar Islands, and Delhi.
    6. Majority spending of MPLADS funds has so far been happening in construction of railways, roads, pathways and bridges.
    7. However, there have been persistent criticism about the scheme’s very nature. Jurists have pointed out that the Constitution does not confer the power to spend public money on an individual legislator. The power to spend public money has been vested in the Executive, through legal sanction of the concerned Legislature. Also, it has been found that MPLADS gives scope for MPs to utilise the funds as a source of patronage that they can dispense at will. The CAG has flagged instances of financial mismanagement and inflation of amounts spent. The Second Administrative Reforms Commission recommended its abrogation (abolition) altogether, highlighting the problems of the legislator stepping into the shoes of the executive.