LEGISLATIVE AND PARLIAMENTARY ISSUES

LEGISLATIVE AND PARLIAMENTARY ISSUES

• Aadhaar Passed as Money Bill Provisions of Money Bill

• The Aadhaar bill has come under controversy due to its passage by the Lok Sabha as a ‘Money Bill’, ignoring amendments recommended by the Upper House of Parliament and raised questions over the final role of the speaker in certifying a bill as money bill.
• There are four types of Bills, namely (i) Constitution Amendment Bills; (ii) Money Bills; (iii) Financial Bills; and (iv) Ordinary Bills.
• Article 110 of the constitution deals with the definition of money bills. It is a money bill if it contains only provisions dealing with all or any of the following matters:

1. Imposition, abolition, remission, alteration or regulation of any tax
2. Regulation of the borrowing of the union government.
3. Custody of consolidated or the contingency funds of India, the payment or withdrawal of money from any such fund.
4. Appropriation of money out of consolidated fund of India.
5. Declaration of charged expenditure on consolidated fund or increase the amount of any such expenditure.
6. The receipt of money on account of the consolidated fund of India or public account of India.
7. Any matter incidental to any of the matters specified above.

• A Money Bill may only be introduced in Lok Sabha, on the recommendation of the President.
• It sent to the Rajya Sabha for its recommendations, which Lok Sabha may reject if it chooses to. 
• If such recommendations are not given within 14 days, it will deem to be passed by Parliament.
• Finance Bill which only contains provisions related to tax proposals would be a Money Bill.
• However, a Bill that contains some provisions related to taxation or expenditure, but also covers other matters would be considered as a Financial Bill. 
• The Speaker certifies a Bill as a Money Bill, and the Speaker’s decision is final and cannot be question in court.
• Lack of remedy

• The Speaker, while certifying a bill as money bill, is in effect depriving the Rajya Sabha of its legislative power to disapprove a bill.
• Thus, there is no remedy lying with Rajya Sabha for wrong decision taken by speaker regarding certification of money bill.

• Aadhaar Controversy

• The main objectives of Aadhaar bill was creating a right to obtain a unique identification number and providing for a statutory apparatus to regulate the entire process.
• The mere fact of establishing the Aadhaar number as the identification mechanism for benefits and subsidies funded by the CFI does not give it the character of a money bill. 
• In this way it bypassed the Upper House’s concerns on security of data, privacy concerns.
• This bill also not appropriates money from the CFI. It does not deal with declaring any expenditure as a charge on that fund.
• Further, it does not deal with the receipt of money on account of the CFI or the public account, or the custody or issue of such money, or the audit of the accounts of the Union or states.

• Amendments to the Finance Bill, 2017

1. Integration of Tribunals/Authorities etc. under different Acts

• It replaced certain Tribunals and transfers their functions to existing Tribunals.
• The amendments propose that the central government may make rules to provide for the terms of service for Chairpersons and other members of these authorities.
• The amendments also cap the age of retirement for Chairpersons and Vice-Chairpersons. Currently, these terms are specified in the laws establishing these Tribunals.
• These amendments could affect the independent functioning of the Tribunals and there could be conflict of interest if the government were to be a litigant.
• These restructuring has been done mainly to eliminate the functional overlapping, and to establish better co-ordination.

• Tribunals Proposed to be merged

• Competition Appellate Tribunal will be merged into National Company Law Appellate Tribunal.
• Airports Economic Regulatory Authority Appellate Tribunal and Cyber Appellate Tribunal will be merged into Telecom Disputes Settlement and Appellate Tribunal.
• National Highways Tribunal in to Airport Appellate Tribunal.
• Employees Provident Fund Appellate Tribunal in to Industrial Tribunal.
• Copyright Board in to Intellectual Property Appellate Board.
• Railways Rates Tribunal in to Railway Claims Tribunal.
• Appellate Tribunal for Foreign Exchange in to Appellate Tribunal (under the Smugglers and Foreign Exchange Manipulators.

• Note: The Supreme Court in 2014 had held that Appellate Tribunals have similar powers and functions as that of High Courts, thus the service condition must be free from executive involvement.

2. Formation of Payments Regulatory Board

• The Finance Bill, 2017 on the recommendation of Ratan Watal Committee is creating a Payments Regulatory Board chaired by the RBI Governor.
• The changes essentially amend provisions of the Payment and Settlement Systems Act, 2007.
• PRB will remain under the RBI which isn’t neutral however Watal Committee has recommended creating this board as a statutory body independent of the RBI.

3. Donations to political parties

• Currently, for donations below Rs 20,000, details of donors do not have to be disclosed by political parties.
• Further, there are no restrictions on the amount of cash donations that may be received by political parties from a person. This Finance Bill has set this limit at Rs 2,000.
• A new mode of donating has introduced through electoral bonds.
• These bonds will be issued by banks, which can bought through cheque or electronic means and identity of the donor will be anonymous.
• At present corporate companies can make donation of up to 7.5% of its net profit in last three years year. The Finance Bill removed this limit of contributions.
• The Bill also proposes that contributions to parties will have to be made only through non-cash mode.

4. Aadhaar made mandatory for PAN and Income Tax

• It is now mandatory for every person to quote their Aadhaar number after July 1, 2017 when: applying for a Permanent Account Number (PAN), or filing their Income Tax returns.
• Persons without Aadhaar will have to file application for Aadhaar first and quote their Aadhaar enrolment number.
• Every person holding a PAN on July 1, 2017 will be required to provide the authorities with his Aadhaar number by a date and in a manner notified by the central government.

5. Cap on Cash Transactions

• The Bill initially mandated that cash transactions above three lakh rupees will not be permitted to a single person in one day, for a single transaction and for any transactions relating to a single event. The amendments propose to lower this limit from three lakh rupees to two lakh rupees.
• Criticism

• Generally, the Finance Bill is passed as a Money Bill since it gives effect to tax changes proposed in the Union Budget. 
• A Money Bill only needs the approval of Lok Sabha, and is sent to Rajya Sabha for its recommendations.  It is deemed to be passed by Rajya Sabha if it does not pass the Bill within 14 calendar days.
• By the amendment to Finance Bill, 2017 changes in institutional structure and laws lost its opportunity to examine by concern Parliamentary committees.
• If non-tax provision included in finance bill would have come as separate legislation the scrutiny of parliamentary committee and recommendations of upper house had some place.

• Privileged Motion
• Parliamentary Privilege

• Parliamentary privilege refers to rights and immunities enjoyed by Parliament as an institution and MPs in their individual capacity.
• Without this immunity they cannot discharge their functions as entrusted upon them.
• According to the Constitution, the powers, privileges and immunities of Parliament and MP’s are to be defined by Parliament.
• No law has so far been enacted in this respect. In the absence of any such law, it continues to be governed by British Parliamentary conventions.

• Breach of Privilege

• Any action ‘casting reflections’ on MPs, parliament or its committees; could be considered breach of privilege.
• This may include publishing of news items, editorials or statements made in newspaper/magazine/TV interviews or in public speeches.
• In 1967, two people were held to be in contempt of Rajya Sabha, for having thrown leaflets from the visitors’ gallery.
• In 1983, one person was held in breach for shouting slogans and throwing chappals from the visitors’ gallery.

• Privilege Motion

• It is moved by a member when he feels that a minister or any member has committed a breach of privilege of the House by withholding facts of a case or by giving wrong or distorted facts.
• Privilege motion can be moved by any lawmaker/MP against anyone accused of breaching parliamentarians’ privileges, their special rights and immunities.
• Its purpose is to censure the concerned minister or any other member.
• Each of the two houses has separate privilege committees, made up of their members.
• The presiding officers of the two Houses, the Speaker and the Chairperson respectively, can dismiss privilege notices, or refer them to the privilege committee, or get a sense of the House before taking a decision.

Office of Profit Issue

Background

• Delhi govt. brought an amendment to Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, to make the position of Parliamentary Secretary exempt from definition of “Office of Profit”.
• But the President has refused to give his consent to the amendment because Delhi as a Union Territory, Bill before coming to the Assembly must have the prior approval of LG and the President of India.
• Recently, the Delhi HC quashed this appointment on the ground that it lacked the approval of LG.

Office of profit clause:

• Under Article 102(1) (a) and Article 191(1) (a) of the Constitution, a person shall be disqualified as a member of Parliament or of a Legislative Assembly/Council if he holds an “Office of Profit” under the central or any state government
• There are some such offices declared not to disqualify its holder by a law passed by the Parliament or state legislature.
• The underlying idea was to obviate a conflict of interest between the duties of office and their legislative function.
• Limitation of strength of minister’s clause: Parliamentary Secretary’s post is also in contradiction to Article 164 (1A) as the Parliament Secretary holds the rank of Minister of State.
• Article provides for limiting the number of Ministers 15 per cent of the total number of members of the State Legislative Assembly (10% for Delhi, owing to its special status) and Lok Sabha.
• 2nd ARC recommendations:
• The Law should be amended to define office of profit based on the following principles:
• All offices in purely advisory bodies where the experience, insights and expertise of a legislator would be inputs in governmental policy shall not be treated as offices of profit.
• All offices involving executive decision making and control of public funds, directly deciding policy or authorizing or approving expenditure shall be treated as offices of profit.
• If a serving Minister is a member or head of certain organizations, where close coordination between the Council of Ministers and the organization is vital for the functioning of government, it shall not be treated as office of profit.Adjournment Motion
• The primary object of an adjournment motion is to draw the attention of Lok Sabha to a recent matter of urgent public importance having serious consequences.
• Adjournment motion is allowed only in direct elected bodies like Lok Sabha and state legislative assembly.
• This is because; adjournment motion has an element of censure against the government.
• Adjournment motion disrupts the normal business of the house thus it is regarded as extraordinary tool in parliament.
• The discussion on adjournment motion needs to last at least 2.5 hours.
• Some of the conditions of adjournment motion in Lok Sabha are:
• Such a motion needs support of at least 50 members.
• It should be introduced on a matter of definite and urgent public importance.
• It should not cover more than one matter and be restricted to that matter only.
• The subject matter should not be the same which is already being discussed in the same session.
• A question of privilege or any other questions which can be raised via other distinct motion cannot be raised in adjournment motion. Calling Attention versus Adjournment Motion
• Since Rajya Sabha is not permitted to make use of adjournment motion, there is a similar tool in Rajya Sabha which is called “Calling Attention”.
• The adjournment motion has an element of censure against the government, Calling attention has no such element.ROLE OF SPEAKER
• There have been increasing instances casting doubts over the bi-partisan role of Speaker. For example,
• Suspension of all the principal opposition parties in the legislative assembly of Gujarat and TN,
• Removal of speaker in the Arunanchal Pradesh Assembly case
• Deciding over Aadhar Bill as Money Bill Court Ruling
• Recently, the Supreme Court while deciding over the issue of imposition of President’s rule in Arunanchal Pradesh discussed the role of Speaker at length.
• The judgment, for the first time, sets down as a legal principle that the Speaker cannot proceed to disqualify Members of the House if an “intention” to remove him has already been moved, and that he would have to first prove he still has the confidence of the majority of Members. Why
• Thus, Article 179(c) provides that a Speaker (or Deputy Speaker) “may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly”.
• Here “all the then members of the Assembly” means the composition of legislators should remain the very same while deciding motion for removal of Speaker.
• The principles of “complete detachment and perceivable impartiality” require the Speaker to desist from using his power to disqualify the members until he passed the test of “constitutional confidence”.
• The speaker acts as a Tribunal while deciding upon the Tenth Schedule therefore he/she should first “stand the test and then proceed.
• The speaker is endowed with a wide range of powers. His powers are:

1. To maintain decorum, discipline in the House and protect it from unnecessary executive intrusion.
2. To decide preside over the house and protect the rights and privileges of the members of the House
3. To put the motion of the vote to announce the result. He does not vote but in case of a tie, he casts his vote.
4. To act as administrative head of the Lok Sabha Secretariat.
5. To accept resignations sent by members.
6. Some of his special powers are:
7. To certify whether a particular Bill is a money Bill or not (Article 110).
8. To preside over joint sitting of both the houses of the Parliament.
9. To admit a vote of no-confidence against the Government.Anti-Defection Law

• Recent disqualification of 9 rebel MLAs in Uttarakhand under anti- defection law once again brought back discussions surrounding the law to the fore.
• Anti-Defection Law:
• The 52nd amendment to the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection.
• A Member of Parliament or state legislature was deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote.
• Independent members would be disqualified if they joined a political party.
• Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member. Some exception
• Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post.
• A party could be merged into another if at least two-thirds (Initially one-third) of its party legislators voted for the merger.
• This issue of freedom of speech due to anti defection law was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). Freedom of speech
• The court said that “the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct above certain theoretical assumptions.”
• It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.
• Various judgements and orders indicate that a member who publicly opposes the party or states his support for another party would be deemed to have resigned from his party.
• The law states that the decision of the presiding officer is final in this regard and not subject to judicial review. However the Supreme Court struck down part of this condition. 
• It held that there may not be any judicial intervention until the presiding officer gives his order. 
• However, the final decision is subject to appeal in the High Courts and Supreme Court. 
  

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