Case BriefsHigh Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J., while addressing a riveting issue wherein a political party challenged Section 60 (c) of the Representation of the People Act, 1951 and the corresponding rules to facilitate postal ballots for absentee voters including senior citizens of above 80 years, persons with disabilities, COVID-19 affected/ suspected and persons employed in essential services, held that:

“…clause (c) is eminently compatible with the company that it keeps in Section 60 of the Act of 1951 without betraying any sign of incongruity.”

Amendment effected in 2003 to Representation of the People Act, 1951 || In Question

Propriety of an amendment effected in 2003 to the Representation of the People Act, 1951 had been called into question by one of the leading political parties in the State along with myriad other grievances in respect of guidelines issued by the Election Commission of India and classification of persons who may exercise their franchise otherwise than by presenting themselves at a polling booth in the forthcoming assembly elections.

Stance of Political Party

The introduction of 60 (c) of the Act, 1951 amounts to the excessive delegation as it is perceived to confer virtual legislative authority to the Election Commission.

Election Commission has the primacy in conducting assembly elections, Petitioner while agreeing the said suggested that matters as such as the classes of persons who may vote otherwise than by attending the election booth must be completely indicated in any rules that may be framed by the Central Government and Election Commission must not be left with any authority to pick and choose from such classes of persons.

The said provision does not permit Election Commission to indicate any classes of persons to permit them to vote otherwise than by attending the election booth.

Hence, in view of the above stated, the 2019 and 2020 amendments to Conduct of Election Rules, 1961 have been challenged along with the guidelines issued by the Election Commission on 17th September, 2020; 2nd February, 2021 and 27th February 2021.

Rules have been challenged and questioned on the ground of — Excessive Delegation.

Petitioner submitted that

  • Sanctity of the right to vote, which is the most fundamental right enjoyed by a citizen in a democracy, is desecrated by the mode and manner of voting as stipulated for a class of persons by the Election Commission.
  • Secrecy in casting a vote, which is the fulfilment of the right to choose by an ordinary citizen, is seriously compromised in the voting process designed by the Election Commission for absentee voters.
  • Election Commission has virtually cut off the role of political parties in the process.

Analysis, Law and Decision 

Bench in view of the facts and circumstances of the present case stated that the petitioning party must be seen to be aware of the voter, difficulties that the Election Commission may face in implementing the manner of voting through postal ballot, the endeavour of the party has to be respected as an attempt to ensure a free and fair election.

Court further expressed that the nature of the petitioner’s attack on the validity of Section 60(c) of the Act of 1951 falls way short of the exalted tests that a person questioning the propriety of a statutory provision must meet.

The discussion with respect to excessive delegation in the present matter pertains to high constitutional authority as the Election Commission and the venerable position conferred to such Commission by constitutional provisions in Part XV of the suprema lex.

There is no doubt that the Election Commission has to abide by the laws made by the Parliament, but the laws made by the Parliament can only be such as may facilitate the conduct of the elections by the Election Commission in the milieu of the expansive domain carved out for the Commission in the wide words of Article 324 of the Constitution.

 Further with regard to the choice of senior citizens aged 80 years, Petitioner contended that when the lower age limit of a senior citizen has been reduced from the erstwhile 80 years to 65 years by the Central Government amending the 1961 Rules, the Election Commission has no business to go by the class of senior citizens in the pre-amended provision and extend only to them the choice of voting by postal ballot.

Fallacy in the above argument

Section 60(c) of the Act of 1951 permits any person to be chosen by the Election Commission from a class of persons indicated in the Rules to be conferred the privilege of voting by postal ballot as long as the choice is preceded by a consultation with the Central Government and followed by a notification in such regard being published.

If the statute confers the right to indicate classes of persons to the executive and the executive allows the Election Commission to choose sub-classes in consultation with the executive, no case of excessive delegation is made out.

Further, the High court noted that the only matters of substance that the petitioner has been able to urge pertain to the word “notified” used in Section 60(c) of the Act of 1951 and the perceived failure of the Election Commission in such regard together with the use of the word “postal” implying that the postal ballots would necessarily have to be sent by post and received back by post and in no other manner.

Adding to the above, Bench expressed that,

Four classes of persons included as absentee voters and entitled to choose to exercise their franchise by postal ballot – senior citizens above 80 years, persons with disabilities, Covid-affected persons and personnel engaged in specific essential services – have been duly notified upon the notifications being completed by corresponding publications being made in the Official Gazette of the State.

With respect to choosing the smaller classes over larger in some cases was upon consultation with the Central Government.

Noting and observing the above discussion, Court further proceeded to state that:

“…all that the Election Commission has done here is to be inclusive and allow certain classes of persons who would have been excluded from exercising their franchise the right to use the postal ballot and participate in the celebration of the festival of democracy.”

Elaborating more on the said subject of excessive delegation, Court held that in the backdrop of the rule-making provision in Section 169 of the Act of 1951 mandating consultation with the Election Commission, the Rules of 1961, particularly the amendments brought about in 2019 and 2020, do not amount to the excessive delegation.

Right to participate in the democratic process

Court also found no arbitrariness in the classification of the persons permitted by the Rules of 1961 to cast their vote by postal ballot, which is based on who may not be able to physically attend the polling booth.

Supreme Court decision in A.C. Jose, recognised the authority of the Election Commission to pass any orders in respect of the conduct of elections when there is no parliamentary legislation or rule made under the said legislation.

Lastly, while concluding, High Court held that it did not find any merit in the challenge –whether to the validity of Section 60(c) of the Act of 1951 or to the impugned guidelines issued by the Election Commission or, generally, to how the Commission has gone about in its endeavour to conduct the ensuing assembly elections in this State.[Dravida Munnetara Kazhagam v. Union of India, 2021 SCC OnLine Mad 1100 , decided on 17-03-2021]


Advocates before the Court:

For the Petitioner: Mr P.Wilson, Senior Counsel for M/s. P. Wilson Associates

For the Respondents: Mr R.Sankaranarayanan Additional Solicitor-General assisted by Mr K.Srinivasamurthy Senior Panel Counsel for Central Government for 1st respondent

Conference/Seminars/LecturesLaw School News

Mr. Justice G.S. Sandhawalia

Dharmashastra National Law University, Jabalpur (DNLU) in association with the Confederation of Alumni for National Law Universities Foundation (CAN Foundation), is all set to host an insightful Online Lecture with Mr. Justice G.S. Sandhawalia, Judge, Punjab & Haryana High Court, Mr. Ujjal Bhuyan, Judge, Bombay High Court as Keynote Speakers along with Mr. Vikramjit Banerjee, Additional Solicitor General & Senior Advocate, Supreme Court of India on the 7th of February, 2021, i.e., Sunday at 11:30 A.M. The Panelists shall be deliberating upon the topic of “Parliament & The Judiciary on Constitutional Amendments:  Shifting Paradigms”. The discussion assumes colossal significance in view of the recent cases of Supreme Court and High Courts on granting of bail in High Profile cases and reasoning of personal liberty as a Constitutional Guarantee.

 

Justice G S Sandhawalia was enrolled as an Advocate with the Bar Council of Punjab and Haryana, Chandigarh in August, 1989. Justice G S Sandhawalia has represented the Union Territory, Chandigarh Administration, Panjab University, Chandigarh, the Official Liquidator attached to the Punjab and Haryana High Court, the Punjab Financial Corporation, the Punjab State Cooperative Supply, Marketing Federation (MARKFED), and many more. Apart from this, they have handled a mixed bag of work pertaining to Criminal, Civil, Service, Land Acquisition and Constitutional law on the private side besides being on the panel of the aforesaid institutions. At present being he being the member of the Bar is a part of various important committees of the Punjab and Haryana High Court including the Mediation and Conciliation Committee, Hon’ble Recruitment and Promotion Committee (Superior Judicial Service) Court, RTI Committee and a few others. In their career till date Justice G S Sandhawalia has dealt with many important PILs, service petitions, contempt petitions, a few of the landmark steps out of which were regarding excessive noise pollution in the Union Territory of Chandigarh due to amplified music from marriage palaces and private farm houses, and regarding employment qualifications for appointment in State Public Service Commissions.

Justice Ujjal Bhuyan

Justice Ujjal Bhuyan presently serving as Judge at Bombay High Court, was born on the 2nd of August, 1964 in Guwahati, and did their schooling in Don Bosco High School, Guwahati. Continuing the legacy of their father, who served as the Advocate General of Assam, and was a Senior Advocate, Justice Ujjal Bhuyan obtained their LLB degree from Government Law College, Guwahati, and an LLM from Guwahati University, Guwahati. They enrolled with the Bar Council of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh in 1991. They started their career as a Junior Counsel in 1995, and subsequently were appointed as a Senior Standing Counsel of the Income Tax Department on 03-12-2008. Justice Ujjal Bhuyan was a Standing Counsel for Income Tax Department for a long period of 16 years. They also served as Special Counsel for the Forest Department, Government of Arunachal Pradesh from December 2005 to April 2009. They were designated as a Senior Advocate in 2010 by the Guwahati High Court, and were appointed as the Additional Advocate General of Assam in 2011. They were appointed as an Additional Judge of the Guwahati High Court on October 17, 2011, and was appointed as a Permanent Judge on March 20, 2013. Apart from this, Justice Ujjal Bhuyan was the Executive Chairman of Mizoram State Legal Service Authority, and closely connected with Judicial Academy, Assam and NLU, Guwahati. Serving from 2013 to 2019 as a Judge in the Guwahati High Court, they were transferred to Bombay High Court by a resolution of the Supreme Court of India, passed on August 28, 2019.

Mr. Vikramjit Banerjee

Mr. Vikramjit Banerjee is a Senior Advocate in the Supreme Court of India, New Delhi, and an incumbent Additional Solicitor General of the Government of India. They graduated from National Law School of India University, Bengaluru in 1997, and completed their LLM from the University of Leicester in 2000. They were also a faculty in West Bengal National University of Judicial Science. Vikramjit Banerjee had co-edited a book in 2008 titled The Truth About Teesta Setalvad. Vikramjit Banerjee was appointed as the Advocate General of Nagaland in 2015, and was designated as a Senior Advocate by the Guwahati High Court in 2016. Vikramjit Banerjee was appointed as an Additional Solicitor General in 2018, and was the youngest in the batch of three new ASGs who were appointed. They are also the first NLSIU graduate to hold this Constitutional Law Office.

The Panel will undertake a thorough discussion on the following themes: – 

  • Discussing the emergence of the Powers to amend the Constitution, and Constituent Assembly Debates.
  • Analysis of the Powers to amend the Constitutions in Foreign Countries and comparing them with the position in India.
  • Examination of the Major Constitutional Amendments.
  • Critical Analysis of Powers and Limitations of the Parliament to Amend the Constitution.
  • Discussing the Basic Structure Doctrine in India and other countries.
  • Discussing important Judgments of the Supreme Court about Constitutional Amendments.
  • Discussing Judicial Independence in Appointments, the 99th Constitutional Amendment, and the Basic Structure.

The Session shall be moderated by Mr. Abhay Anturkar, Advocate, Supreme Court of India & Mr. Chritarth Palli, Advocate, Supreme Court of India.

Prof. (Dr.) Balraj Chauhan

The Welcome address shall be delivered by Prof. (Dr.) Balraj Chauhan, Vice-Chancellor, DNLU, Jabalpur. Before joining Dharmashastra National Law University, Prof. Balraj has served as Director, Amity Law School, Lucknow, Vice-Chancellor of Dr. Ram Manohar Lohiya National Law University, Lucknow, and National Law Institute University, Bhopal.  They have also been a member of U.P. State Law Commission, Member of UP State Legal Services Authority and Executive Member, Shastri Indo-Canadian Institute New Delhi. Prof. Balraj’s special interest is in the field of Criminal Law, Criminology and Clinical Legal Education.

CAN Foundation is endeavoured to create awareness in society and provide assistance to the financially handicapped students of the country by furnishing scholarly stipends to them. In its pursuit, it is continuously encouraged & supported by its Media Partner, Bar & Bench, which has raised the level of legal discourse in the country and its Knowledge Partner, SCC-EBC Group, a highly trusted and informative platform for legal awareness and discussion.

The Interactive Session is certainly going to be an enriching learning experience for all the attendees from across the country, given the learned and the erudite Panel. For attending the Session, you can register by visiting the official website of CAN Foundation-www.canfoundation.in. 

Case BriefsSupreme Court

[NOTE: This Report highlights the important observations made by Justice Sanjiv Khanna in his dissenting opinion in the Central Vista Project case. Justice AM Khanwilkar has written the majority opinion, for himself and Justice Dinesh Maheshwari, in the 2:1 judgment that gave a go ahead to the Centra Vista Project.]

Supreme Court: The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna**, JJ has, by a 2:1 verdict, has given a go ahead to the Central Vista Project. As per the Government, the Project, which plans to build a New Parliament building, is necessary for the creation of a larger working space for efficient functioning of the Parliament and for integrated administrative block for Ministries/Departments presently spread out at different locations including on rental basis.

Sanjiv Khanna, J said that he had reservations with the opinion expressed by A.M. Khanwilkar, J. on the aspects of public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee and the order passed by the Expert Appraisal Committee.

Here are the key takeaways from Justice Sanjiv Khanna’s dissenting opinion

  • To ignore their salutary mandate as to the manner and nature of consultation in the participatory exercise, would be defeat the benefic objective of exercise of deliberation. Public participation to be fruitful and constructive is not to be a mechanical exercise or formality, it must comply with the least and basic requirements.

“Thus, mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance, but rather an exercise violating the express as well as implied stipulations, that is, necessity and requirement to make adequate and intelligible disclosure.”

  • Intelligible and adequate disclosure was critical given the nature of the proposals which would affect the iconic and historical Central Vista. The citizenry clearly had the right to know intelligible details explaining the proposal to participate and express themselves, give suggestions and submit objections. The proposed changes, unlike policy decisions, would be largely irreversible. Physical construction or demolition once done, cannot be undone or corrected for future by repeal, amendment or modification as in case of most policies or even enactments. They have far more permanent consequences.

“It was therefore necessary for the DDA to inform and put in public domain the redevelopment plan, layouts, etc. with justification and explanatory memorandum relating to the need and necessity, with studies and reports. Of particular importance is whether by the changes, the access of the common people to the green and other areas in the Central Vista would be curtailed/restricted and the visual and integrity impact, and proposed change in use of the iconic and heritage buildings.”

  • Right to make objections and suggestions in the true sense, would include right to intelligible and adequate information regarding the proposal. Formative and constructive participation forms the very fulcrum of the legislative scheme prescribed by the Development Act and the Development Rules. Every effort must be made to effectuate and actualise the participatory rights to the maximum extent, rather than read them down as mere irregularity or dilute them as unnecessary or not mandated.
  • Deliberative democracy accentuates the right of participation in deliberation, in decision-making, and in contestation of public decision-making.
  • Adjudication by courts, structured by the legal principles of procedural fairness and deferential power of judicial review, is not a substitute for public participation before and at the decision-making stage. In a republican or representative democracy, citizens delegate the responsibility to make and execute laws to the elected government, which takes decisions on their behalf. This is unavoidable and necessary as deliberation and decision-making is more efficient in smaller groups.
  • Delegation of the power to legislate and govern to elected representatives is not meant to deny the citizenry’s right to know and be informed. Democracy, by the people, is not a right to periodical referendum; or exercise of the right to vote, and thereby choose elected representatives, express satisfaction, disappointment, approve or disapprove projected policies. Citizens’ right to know and the government’s duty to inform are embedded in democratic form of governance as well as the fundamental right to freedom of speech and expression.
  • When information is withheld/denied suspicion and doubt gain ground and the fringe and vested interest groups take advantage. This may result in social volatility. This is not to say that consultation should be open ended and indefinite, or the government must release all information, as disclosure of certain information may violate the right to privacy of individuals, cause breach of national security, impinge on confidentiality etc. Information may be abridged or even denied for larger public interest. This implies that there should be good grounds and justification to withhold information.

“Boundaries of what constitutes legitimate with holding can at times be debatable; but in the present case, there is no contestation between transparency and the right to know on the one hand, and the concerns of privacy, confidentiality and national security on the other. Further, the Development Act and Development Rules demand and require openness and transparency, and embody without exception the right to know which is implicit in the right to participate and duty to consult.”

  • While the Respondents have claimed that modifications to the Master Plan of Delhi would not result in change in character of the plan, a reading of the notice inviting tenders published by the Central Public Works Department inviting design and planning firms for the “Development / Redevelopment of Parliament Building, Common Central Secretariat and Central Vista at New Delhi” indicates that the proposed project does envisage extensive change to the landscape.

“The impact of the changes envisaged are not minor and what is envisaged is complete redevelopment of the entire Central Vista, with site development infrastructure, landscape design, engineering design and services, mobility plan etc. The expenditure to be incurred and demolition and constructions as proposed indicate the expansive and sweeping modifications/changes purposed.”

  • It would be hypothetical and incongruous to accept that L&DO had applied its mind to the objections and suggestions even before the public hearing, and therefore, the court should assume that the Central Government had considered the objections and suggestions. The letter written by the L&DO dated 6th February 2020 with reference to the background note does not reflect consideration of the objections and suggestions but inter alia states that by an earlier letter dated 4th December 2019, agenda for change of land use of eight blocks has been forwarded for placing before the technical committee of the Authority and a background note was being enclosed. Authority was requested to take necessary action accordingly. This is not a letter or communication showing consideration of the suggestions and objections.

“Final decision must be conscientiously and objectively taken by the competent authority post the hearing.”

  • The Central Government has not placed on record even a single document or minutes to show that the objections and suggestions were considered by the Central Government, albeit they place reliance on the gazette notification 20th March, 2020 which does not specifically talk about considerations of objections and suggestions but states ‘whereas the Central Government have after carefully considering all aspects of the matter, have decided to modify the Master Plan for Delhi 2021/Zonal Development Plan for Zone D and Zone C’.
  • There is violation of the Section 45 as public notice of hearing fixed on 6th and 7th of February 2020 was issued by way of public notice dated 3rd February, 2020 published on 5 th February, 2020. SMS and email were issued at the last moment. Lack of reasonable time, therefore, prevented the persons who had filed objections and given suggestions to present and appear orally state their point of view.
  • A meeting of the Committee on 23rd April 2020 through video conferencing, with the agenda “Proposed New Parliament Building at Plot No.118, New Delhi”, was held, and ‘No Objection’ was granted.
  • Pertinently, the mandate of the Committee is to engage architects and town planners to advise the government on development of the Central Vista and the Secretarial Complex. However, four independent representatives, namely, (i) President of Indian Institute of Architects; (ii) representative of Indian Institute of Architects (Northern Chapter); (iii) President of Institute of Town Planners, India; and (iv) representative of Institute of Town Planners, India, were absent and did not participate. Even the Chief Architect of the NDMC was not present. Therefore, only the representatives of the Government, the Director Delhi Division, MoHUA and Joint Secretary (Admn.) of Ministry of Environment and Forests were present.
  • Given the nature and magnitude of the entire re-development project and having given due notice to the language, as well as object and purpose behind the re-development project, undoubtedly prior approvals and permissions from the Heritage Conservation Committee were/are required and necessary.

“Where power is given to do a certain thing in a certain way, then the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. When the statute prescribes a particular act must be done by following a particular procedure, the act must be done in that manner or not at all.”

However, Heritage Conservation Committee was never moved to secure approval/permission. No approval/permission has been taken.

  • Paragraph 1.3 states that redevelopment, engineering operations, or even additions/alterations etc. require prior permission of Heritage Conservation Committee. However for demolition, major repairs and alterations/additions to listed buildings or building precincts procedure of inviting objections and suggestions from the public shall be followed. Heritage Conservation Committee would consider the suggestions and objections. Decision of the Heritage Conservation Committee is final and binding.
  • Failure to record reasons can amount to denial of justice, as the reasons are a live link between the mind of the decision maker to the controversy in question and decision or conclusion arrived at. Therefore, requirement of a speaking order is judicially recognised as an imperative.

Directions

A) The Central Government/Authority would put on public domain on the web, intelligible and adequate information along with drawings, layout plans, with explanatory memorandum etc. within a period of 7 days.

B) Public Advertisement on the website of the Authority and the Central Government along with appropriate publication in the print media would be made within 7 days.

C) Anyone desirous of filing suggestions/objections may do so within 4 weeks from the date of publication. Objections/ suggestions can be sent by email or to the postal address which would be indicated/mentioned in the public notice.

D) The public notice would also notify the date, time and place when public hearing, which would be given by the Heritage Conservation Committee to the persons desirous of appearing before the said Committee. No adjournment or request for postponement would be entertained. However, the Heritage Conservation Committee may if required fix additional date for hearing.

E) Objections/suggestions received by the Authority along with the records of BoEH and other records would be sent to the Heritage Conservation Committee. These objections etc. would also be taken into consideration while deciding the question of approval/permission.

F) Heritage Conservation Committee would decide all contentions in accordance with the Unified Building Bye Laws and the Master Plan of Delhi.

G) Heritage Conservation Committee would be at liberty to also undertaken the public participation exercise if it feels appropriate and necessary in terms of paragraph 1.3 or other paragraphs of the Unified Building Bye Laws for consultation, hearing etc. It would also examine the dispute regarding the boundaries of the Central Vista Precincts at Rajpath.

H) The report of the Heritage Conservation Committee would be then along with the records sent to the Central Government, which would then pass an order in accordance with law and in terms of Section 11A of the Development Act and applicable Development Rules, read with the Unified Building Bye-laws.

I) Heritage Conservation Committee would also simultaneously examine the issue of grant of prior permission/approval in respect of building/permit of new parliament on Plot No. 118. However, its final decision or outcome will be communicated to the local body viz., NDMC, after and only if, the modifications in the master plan were notified.

J) Heritage Conservation Committee would pass a speaking order setting out reasons for the conclusions.

Further, the order of the EAC dated 22nd April,2020 and the environment clearance by the Ministry of Environment and Forest dated 17th June,2020 was set aside, and EAC has been requested to decide the question on environment clearance within a period of 30 days from the date copy of this order received, without awaiting the decision on the question of change/modification of land use. Speaking and reasoned order would be passed.

[Rajiv Suri v. Delhi Development Authority,  2021 SCC OnLine SC 7, decided on 05.01.2020]


*Justice AM Khanwilkar has penned the majority opinion. Read more about him here

** Justice Sanjiv Khanna has penned the dissenting opinion. 

ALSO READ

Here’s why the Supreme Court gave a go-ahead to Central Vista Project in a 2:1 verdict [Read majority opinion]

Case BriefsSupreme Court

[NOTE: This Report highlights the important observations made by Justice AM Khaniwlkar while writing the majority opinion in the Central Vista Project case, for himself and Justice Dinesh Maheshwari. Justice Sanjiv Khanna has given the dissenting opinion in the case]

Supreme Court: The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna**, JJ has, by a 2:1 verdict, has given a go ahead to the Central Vista Project. As per the Government, the Project, which plans to build a New Parliament building, is necessary for the creation of a larger working space for efficient functioning of the Parliament and for integrated administrative block for Ministries/Departments presently spread out at different locations including on rental basis.

“We are compelled to wonder if we, in the absence of a legal mandate, can dictate the government to desist from spending money on one project and instead use it for something else, or if we can ask the government to run their offices only from areas decided by this Court, or if we can question the wisdom of the government in focusing on a particular direction of development. We are equally compelled to wonder if we can jump to put a full stop on execution of policy matters in the first instance without a demonstration of irreparable loss or urgent necessity, or if we can guide the government on moral or ethical matters without any legal basis. In light of the settled law, we should be loath to venture into these areas.”

Here are the key highlights from the majority opinion: 

DENIAL OF NATURAL JUSTICE

The petitioners have not been able to demonstrate any case of denial of natural justice. For, the prescribed procedure, both by statute and convention, seems to have substantially been followed. In fact, in circumstances when challenge is raised to a project of immense national importance which is not limited to any particular city or state or intended to give benefit to any private individual, impediments cannot be induced by reading in requirements which are not mandated by law.

“The principle of “Rule of Law” requires rule in accordance with the law as it is, and not in accordance with an individual’s subjective understanding of law. Substantial justice is the core of any such inquiry and it is in this direction that processes are to be understood and adjudicated upon. The Court needs to be conscious of all aspects in a non-adversarial public interest litigation where public interest is the sole premise of enquiry.”

QUASI-LEGISLATIVE FUNCTION

It is no doubt true that the classification of legislative or administrative functions can no more be done like a pigeon-holes classification. It was because of this reason that the phrases “quasi-legislative” and “quasi-administrative” have made inroads in the modern administrative law. In fact, in practical parlance, even quasi-legislative functions are treated as falling under the wider ambit of administrative functions.

In the present case, what is being modified is the master/zonal plan already in existence. True that is not an action that creates new zones or new parameters. However, the underlying nature of activity being performed here is of town planning and change in land use of one or couple of plots in a given zone. It is a modification which will provide direction to all future development of the subject plots.

“… there is a distinction between modifying the use of land in a given zone and demarcating fresh boundaries for various zones of land. The change of usage of Government land is of a general nature. It is certainly not a purely routine administrative work. That means that the function of change in land use has a quasi-legislative hue to it.”

EFFECT OF SOME MEMBERS NOT JOINING THE MEETING

The notice of meeting was communicated to all the members on 16.4.2020 and they were asked to make the requisite arrangements in advance. Furthermore, the members who lacked in technical know-how to interact virtually were given the option of necessary assistance for the purpose of meeting. In such a scenario, it is inconceivable to say that the members were deliberately kept out of the meeting.

“If they failed to join the meeting for reasons best known to them, the outcome of the meeting cannot be assailed by alleging motives. Further, the minutes of meeting were mailed to all the members on 30.4.2020 and even then, no word of discord or dissatisfaction was received from any of these members. It must follow that their absence cannot be equated to an irregularity, much less an illegality. The Committee was not expected to sit over the proposal merely because some members were unwilling to join virtually despite all arrangements being in place. Indisputably, none of the absent members is before us in this case and we have no occasion whatsoever to consider them as being aggrieved in any manner, for no grievance at their instance has come on record.”

NON-APPLICATION OF MIND

When petitioners allege illegality on a ground such as absence of reasons in a pure administrative process, they must bear the burden to demonstrate the requirement of reasons in the first place. It is not as if reasons are mandatory in all decisions.”

In cases when the statute itself provides for an express requirement of a reasoned order, it is understandable that absence of reasons would be a violation of a legal requirement and thus, illegal. However, in cases when there is no express requirement of reasons, the ulterior effect of absence of reasons on the final decision cannot be sealed in a straightjacketed manner. Such cases need to be examined from a broad perspective in the light of overall circumstances.

In cases where individual rights are affected by the decision, an opportunity of being heard and application of mind couched in the form of reasons form part of the jurisprudential doctrine. Such cases need to be distinguished from cases which do not impinge upon individual rights and involve ordinary administrative processes. For, similar standards cannot be deployed to decide both these cases.

“What we are dealing with is the opinion of an advisory (administrative) body which is appointed by the same Government which calls for its advice and not to adjudicate upon rights of individuals. Even if we assume that the no objection by an advisory body would have the effect of affecting the objectivity of the final decision, the fact remains that it does not take the final decision. It is meant to invoke its expertise in light of the subject proposal placed before it and advise the Government as regards the feasibility of the proposed development in connection with the existing central vista region. The final decision would be that of the competent authority of the concerned department.”

Not being a statutory body, an advisory body’s opinion has no finality attached to it nor could be appealed against to superior forum.

“Undeniably, in the process of decision-making, the Government may choose to consult as many bodies and agencies as it desires and opinion of every such advisory body cannot be assailed by supplying fictional standards without keeping in view the nature of body and context of advice.”

The DUAC was sitting in an advisory capacity so as to advise the Government on aesthetics of a development/re-development project. It is not meant to analyse any other aspect of the project. In that, it is expected to apply its mind to those aspects of the project which may have a bearing on aesthetics. The Minutes succinctly reveal that complete information relating to designs was placed before the DUAC and it applied itself on an array of factors including parking, plantation of trees, traffic, appearance of facade, ventilation, landscape, building equipment etc. so far as the same are relevant for its enquiry, to fulfil its advisory duties.

“…the allegation of arbitrariness is easy to raise in a theoretical discourse, but hard to establish in a Court of law where unsubstantiated considerations have no place.”

LEGITIMATE EXPECTATION

Legitimate expectations may arise in cases when the decision-making body deviates from a set standard, thereby impinging upon the rights of those who are subjected to the decision.

“In the present case, had the project proponent entirely skipped the step of consultation with CVC, enforcing such consultation by operation of legitimate expectation may have come into play.”

ENVIRONMENTAL CLEARANCE

Once an expert committee has duly applied its mind to an application for EC, any challenge to its decision has to be based on concrete material which reveals total absence of mind. Absent that material, due deference must be shown to the decisions of experts.

“The facts of the case do not reveal any deliberate concealment of fact/information from the EAC or supply of any misinformation.”

TIMELINE OF THE PROJECT

Once the project proponent frames a conscious timeline of completion of various projects which broadly fall under the umbrella of a common vision for the region, the same cannot be disturbed on the notion that the whole vision should go through the regulatory compliances at once. That would defeat the whole purpose of advance planning of a development activity. Planning involves in-depth consideration of a wide range of concerns including regulatory requirements. The decision to attribute different timelines and purposes to different projects is a domain of planning and the Court cannot readily attribute the label of mala fides to such informed decision until and unless there is a clear attempt to evade the requirements of law.

SELECTION/APPOINTMENT OF CONSULTANT

In this case, the process of tender was used to select the consultant wherein uniform conditions were prescribed for all the participants who were eligible and free to participate in the process. Upon submission of bids, their applications were analysed on pre-determined set of objective parameters which were duly notified to all the participants beforehand. The petitioners have not shown that the conditions of tender were deliberately crafted in a manner to make them suitable for a particular participant. Nor, have they shown that the conditions were violative of any mandatory requirement.

Hence,

“Just because the Government has followed a particular method of selection/appointment of the Consultant for the stated project and another one would have been a better option cannot be the basis to quash the appointment already made after following a fair procedure consequent to inviting tenders from eligible persons similarly placed.”

PUBLIC TRUST DOCTRINE

“For proving a violation of public trust, it falls upon the petitioners to establish that public resources are being squandered and used or planned to be used in a manner which cannot be termed as beneficial public use. As for the respondents, it falls upon them to establish that the proposed use of public resources is aligned in the direction of beneficial use and in public interest.”

In the present case, the respondents have elaborately demonstrated the imminent need for the project. Also, the change in land use does not result into any deprivation of recreational spaces. On the contrary, the changes would result into optimisation and greater access to open spaces including entail in assets creation.

AVAILABILITY OF INFORMATION IN PUBLIC DOMAIN

Evidently, all relevant documents from the stage of expression of need for the project by Speaker of Lok Sabha to appointment of consultant, issuance of public notice, conduct of public hearing, final notification for change in land use and minutes of meetings of CVC, DUAC and EAC were placed in public domain. The petitioners have not pointed out a single document which formed a part of the process and was not placed in public domain.

“Be that as it may, it is also relevant to note that mere absence of information does not vitiate an administrative process, that too in toto.”

The real effect of absence of information in public domain has to be tested on the anvil of actual prejudice on public’s ability to participate in the decision-making process, wherever provided for. It must result into a denial of legally enforceable right. In the present case, none of the persons who participated in raising objections to change in land use or those who sent representations to DUAC and EAC have come forward to contend that they could not access information, thereby rendering them incapable of participating in the process or in raising informed objections.

CONCLUSION

(i) There is no infirmity in the grant of:

(a) “No Objection” by the Central Vista Committee (CVC);

(b) “Approval” by the Delhi Urban Art Commission (DUAC) as per the DUAC Act, 1973; and

(c) “Prior approval” by the Heritage Conservation Committee (HCC) under clause 1.12 of the Building Byelaws for Delhi, 2016.

(ii) the exercise of power by the Central Government under Section 11A (2) of the DDA Act, 1957 is just and proper.

(iii) The recommendation of Environmental Clearance (EC) by Expert Appraisal Committee (EAC) and grant thereof by MoEF is just, proper and in accordance with law including the 2006 Notification.

(iv) The project proponent may set up smog tower(s) of adequate capacity, as being integral part of the new Parliament building project; and additionally, use smog guns at the construction site throughout the construction phase is in progress on the site.

(v) MoEF to consider issuing similar general directions regarding installation of adequate capacity of smog tower(s) as integral part in all future major development projects whilst granting development permissions, particularly in cities with bad track record of air quality – be it relating to Government buildings, townships or other private projects of similar scale and magnitude, including to use smog guns during the construction activity of the Project is in progress.

(vi) The stage of prior permission under clause 1.3 of the Building Bye Laws of the Heritage Conservation Committee (HCC), is the stage of actual development/redevelopment etc. work is to commence and not the incipient stage of planning and formalisation of the Project. Accordingly, the DDA shall obtain aforementioned prior permission of the designated Authority before actually starting any development/redevelopment work on the stated plots/structures/precincts governed by the heritage laws including on plot No. 118, if already not obtained.

(vii) The selection/appointment of Consultant, in light of the limited examination warranted in this case, is held to be just and proper.

[Rajiv SUri v. Delhi Development Authority,  2021 SCC OnLine SC 7, decided on 05.01.2020]


*Justice AM Khanwilkar has penned the majority opinion 

Know Thy Judge| Justice AM Khanwilkar


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‘Citizens have the right to know and participate in deliberation and decision making’; Justice Khanna dissents in 2:1 verdict clearing the Central Vista Project

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ has rebuked Centre for moving ahead with the construction work in the Central Vista project while the dispute is still pending before the Court but has allowed it to go ahead with the stone-laying program for the new Parliament building scheduled to be held on December 10, 2020.

Solicitor General Tushar Mehta assured the Court that there will be no construction activity of any nature on the concerned site nor demolition of any structure will be done, including the further trans-location of trees will be kept in abeyance, until the pronouncement of judgment in all the cases.

Taking the statement on record, the Court directed,

“… the authorities would be free to continue with procedural processes without altering the status of the site(s) in question in any manner, including to continue with the scheduled programme of foundation stone-laying on 10th December, 2020.” 

[Rajiv Suri v. Union of India, 2020 SCC OnLine SC 996, order dated 07.12.2020]

Amendments to existing lawsLegislation Updates

President gave assent to the Aircraft (Amendment) Bill, 2020 on 19-09-2020.

The Aircraft (Amendment) Act, 2020

Key Highlights:

  • Expressions “Directorate General of Civil Aviation”, “Bureau of Civil Aviation Security” and “Aircraft Accidents Investigation Bureau” defined.
  • Central Government empowered to constitute the Directorate General of Civil Aviation, Bureau of Civil Aviation Security and Aircraft Accidents Investigation Bureau under the Act and to specify their responsibilities thereof.
  • Central Government empowered to issue directions to the Directorate General of Civil Aviation, Bureau of Civil Aviation Security and Aircraft Accidents Investigation Bureau on any matter if it is considered necessary so to do in the public interest;
  • Central Government empowered to review any order passed by the Director-General of Civil Aviation and the Director-General of Civil Aviation Security and also direct them to rescind or modify such order;
  • Regulation of all areas of air navigation services
  • Bureau of Civil Aviation Security or any authorised officer empowered to issue directions;
  • Maximum limit of fine enhanced from the existing ten lakh rupees to one crore rupees
  • Designated officers for adjudging penalties appointed
  • Compounding of Offences provided
  • To keep aircraft belonging to any armed forces of the Union other than naval, military or air force outside the purview of the Act

Read the Act here: 221843


Ministry of Law and Justice

Legislation UpdatesStatutes/Bills/Ordinances

The Foreign Contribution (Regulation) Amendment Bill, 2020

Lok Sabha passed the Foreign Contribution (Regulation) Amendment Bill, 2020 on 21-09-2020 and today i.e. 23-09-2020, Rajya Sabha passed the Bill.

Why has the bill been proposed?

The annual inflow of foreign contribution has almost doubled between the years 2010 and 2019, but many recipients of foreign contribution have not utilised the same for the purpose for which they were registered or granted prior permission under the said Act. Many of them were also found wanting in ensuring basic statutory compliances such as submission of annual returns and maintenance of proper accounts.

This has led to a situation where the Central Government had to cancel certificates of registration of more than 19,000 recipient organisations, including non-Governmental organisations, during the period between 2011 and 2019.

Therefore, there is a need to streamline the provisions of the said Act by strengthening the compliance mechanism, enhancing transparency and accountability in the receipt and utilisation of foreign contribution worth thousands of crores of rupees every year and facilitating genuine non-Governmental organisations or associations who are working for the welfare of the society.

Highlights of the Bill are as follows:

Prohibition to accept foreign contribution [Section 3]

No foreign contribution shall be accepted by any public servant, Judge, Government servant or employee of any corporation or any other body controlled or owned by the Government.

Prohibition to transfer foreign contribution to other person [Section 7]

Now the bill proposes the prohibition to the transfer of foreign contribution to another person and the requirement of valid certificate has also been removed. i.e earlier a person could transfer to the person with a valid certificate, but that has been removed now.

Restriction to utilise foreign contribution for the administrative purpose [Section 8]

The foreign contributions received shall be used only up to 20% which earlier was 50%.

Registration of certain persons with Central Government

[Section 11]

Only after the prior permission of the Central Government a person who is not registered shall accept the foreign contribution:

Provided that the Central Government, on the basis of any information or report, and after holding a summary inquiry, has reason to believe that a person who has been granted prior permission has contravened any of the provisions of this Act, it may, pending any further inquiry, direct that such person shall not utilise the unutilised foreign contribution or receive the remaining portion of foreign contribution which has not been received or, as the case may be, any additional foreign contribution, without prior approval of the Central Government:

Provided further that if the person referred to in sub-section (1) or in this sub-section has been found guilty.”.

Grant of Certificate of Registration [Section 12]

Every person who makes an application for grant of a certificate shall be required to open an FCRA Account in the manner mention in Section 17 Aand mention the details of such an account in his application.

Mandatory Aadhaar [Section 12 A] [New Section]

As an identification document for the purpose of this Act, Aadhaar number for all Office bearer or directors of all NGOs and other organization which is eligible for foreign contribution is mandatory. However, a passport or overseas citizen of India card is required in the case of foreign nationals.

Suspension of Certificate [Section 13]

Time limit for suspension of Certificate issued under FCRA has been stated to be as either 180 days or such further period not exceeding 180 days, as may be specified.

Surrender of Certificate [Section 14 A] [New Section]

If the Central Government is satisfied after inquiry as it deems fit, it can permit a person to surrender the certificate.

Foreign Contribution through Scheduled Bank [Section 17]

Now, under this provision, every person who has been granted a certificate or prior permission under Section 12 shall receive foreign contribution only in an account designated as “FCRA Account” which shall be opened by him in such branch of the State Bank of India at New Delhi.

Along with the above stated key highlights, amendments under Section 15 and 16 have also been made which can be referred to in the bill below.

Please read the bill here: BILL


Parliament

Legislation UpdatesStatutes/Bills/Ordinances

Parliament passed two bills aimed at transforming agriculture in the country and raising farmers’ incomes. The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 and The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020 which were passed by Lok Sabha on 17th September 2020, were passed by the Rajya Sabha also today. The Bills were introduced in Lok Sabha on 14th September 2020 by Union Minister of Agriculture & Farmers’ Welfare, Rural Development & Panchayati Raj, Shri Narendra Singh Tomar, to replace ordinances promulgated on 5th June 2020..

The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020

Main provisions –

  • The new legislation will create an ecosystem where the farmers and traders will enjoy freedom of choice of sale and purchase of agri-produce.
  • It will also promote barrier-free inter-state and intra-state trade and commerce outside the physical premises of markets notified under State Agricultural Produce Marketing legislations.
  • The farmers will not be charged any cess or levy for sale of their produce and will not have to bear transport costs.
  • The Bill also proposes an electronic trading in transaction platform for ensuring a seamless trade electronically.
  • In addition to mandis, freedom to do trading at farmgate, cold storage, warehouse, processing units etc.
  • Farmers will be able to engage in direct marketing thereby eliminating intermediaries resulting in full realization of price.

Doubts –

  • Procurement at Minimum Support Price will stop
  • If farm produce is sold outside APMC mandis, these will stop functioning
  • What will be the future of government electronic trading portal like e-NAM

Clarification –

  • Procurement at Minimum Support Price will continue, farmers can sell their produce at MSP rates, the MSP for Rabi season will be announced next week
  • Mandis will not stop functioning, trading will continue here as before. Under the new system, farmers will have the option to sell their produce at other places in addition to the mandis
  • The e-NAM trading system will also continue in the mandis
  • Trading in farm produce will increase on electronic platforms. It will result in greater transparency and time saving

The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020

Main provisions –

  • The new legislation will empower farmers for engaging with processors, wholesalers, aggregators, wholesalers, large retailers, exporters etc., on a level playing field. Price assurance to farmers even before sowing of crops. In case of higher market price, farmers will be entitled to this price over and above the minimum price.
  • It will transfer the risk of market unpredictability from the farmer to the sponsor. Due to prior price determination, farmers will be shielded from the rise and fall of market prices.
  • It will also enable the farmer to access modern technology, better seed and other inputs.
  • It will reduce cost of marketing and improve income of farmers.
  • Effective dispute resolution mechanism has been provided for with clear time lines for redressal.
  • Impetus to research and new technology in agriculture sector.

Doubts –

  • Under contract farming, farmers will be under pressure and they will not be able to determine prices
  • How will small farmers be able to practice contract farming, sponsors will shy away from them
  • The new system will be a problem for farmers
  • In case of dispute, big companies will be at an advantage

Clarification –

  • The farmer will have full power in the contract to fix a sale price of his choice for the produce. They will receive payment within a maximum of 3 days.
  • 10000 Farmer Producer organizations are being formed throughout the country. These FPOs will bring together small farmers and work to ensure remunerative pricing for farm produce
  • After signing contract, farmer will not have seek out traders. The purchasing consumer will pick up the produce directly from the farm
  • In case of dispute, there will be no need to go to court repeatedly. There will be local dispute redressal mechanism.

Ministry of Agriculture & Farmers Welfare

Legislation UpdatesStatutes/Bills/Ordinances

The Institute of Teaching and Research in Ayurveda Bill 2020 has been passed by Rajya Sabha.

The Bill was earlier passed in Lok Sabha on 19-03-2020. This paves the way to establish a state-of-the-art Ayurvedic institution called the Institute of Teaching and Research in Ayurveda (ITRA) at Jamnagar, Gujarat, and to confer the status of Institution of National Importance (INI) to it.

Purpose of Establishment

The ITRA is sought to be established by conglomerating the presently existing Ayurveda institutes at Gujarat Ayurved University campus Jamnagar. This is a cluster of highly reputed institutions, namely, (a) Institute for Post Graduate Teaching and Research in Ayurveda, (b) Shree GulabKunverba Ayurveda Mahavidyalaya, and (c) Institute of Ayurvedic Pharmaceutical Sciences, (d) Maharshi Patanjali Institute for Yoga Naturopathy Education & Research (to be made part of the Department of Swasthvritta of the proposed ITRA). These institutions had come up over the past many decades, and together made a unique family of Ayurveda institutions existing in close proximity.

It is expected that the enactment of the proposal will further provide autonomy to the institute to develop patterns of teaching in undergraduate and postgraduate education in Ayurveda and Pharmacy. The synergies among the different constituent institutions will help ITRA to demonstrate high standards of such education and to emerge as a lighthouse institution to the entire AYUSH Sector. It is expected to provide the highest level of training of personnel in all important branches of Ayurveda including Pharmacy, and to take up in-depth study and research in the field of Ayurveda.

ITRA will be the first institution with INI status in the AYUSH sector, and this will enable the institution to be independent and innovative in the matter of deciding course content and pedagogy. The decision comes at a time when global interest in health solutions based on traditional wisdom is at an unprecedentedly high level and ITRA is poised to take Ayurveda education to new vistas.


Parliament

[Source: PIB]

Op EdsOP. ED.

Introduction

India got its freedom in 1947, and thereafter got its Constitution in 1949, which is a sacred and sacrosanct document and is also the longest written Constitution in the world. As our independent nation flourished and evolved, so did its democracy, which also highlighted the short-comings of the Constitution from time to time. To deal with such shortcomings, Parliament stood up to its responsibility and amended the Constitution from time to time.

In Democracy, election of representatives from constituencies is one of the most important processes, and so does presence of political parties. Various political parties set-up their candidates from different constituencies for elections of members to LokSabha/Legislative Assembly. These candidates get elected mostly, rather than Independent candidates.

However, party politics has been severely undermined by the politics of Aaya Rams and Gaya Rams. It has been time and again experienced that upon being elected to the legislature, lawmakers switch parties and cause political instability – often enticed by the rival party with plum public posts or, simply, money. The earliest example was from Haryana where in 1967, one Gaya Lal switched parties three times within the same day. This is in no way less than a fraud with the electors, who elect representative for a period of 5 years and is also a fraud with the political party under whose symbol such candidate contested and got elected.

Parliament though brought anti-defection law and amended it also from time to time, but people have made such laws redundant by their cunning methods.

Our country is facing similar problem even today. We have seen that in many States like Karnataka and Madhya Pradesh, ruling party MLAs have begun to resign in strategic numbers and join rival political parties for extraneous considerations best known to them. Thereby leading to reduction in the number of simple majority giving the opposition party /coalition (otherwise in minority) a shot at forming the government by demanding a floor test. Recently, it is being seen that the same strategy is being used to give advantage to the parties in getting more Members of Parliament elected to Rajya Sabha (Council of States). Thus, in the present article, I’ve made an attempt to examine the history of Constitutional amendments to deal with the malpractice of defection, how successful have they been and what future course is required in wake of current practices of horse trading.

Historical Development

Prior to 1974, Article 190(3)(b) of the Constitution of India prescribed that seat of a member of Legislative Assembly shall become vacant, if he resigns by writing to the Speaker. Thus, the Speaker had no control over the same and the seat used to become vacant at the drop of a hat.

The instances of misuse of this provision led to the introduction of the Constitution (33rd Amendment) Act, 1974[1]. The Statement of Objects and Reasons of such 33rd Amendment was as under:

“Articles 101(3)(b) and 190(3)(b) of the Constitution permit a member of either House of Parliament or a member of a House of the Legislature of a State to resign his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be. In the recent past, there have been instances where coercive measures have been resorted to for compelling members of a Legislative Assembly to resign their membership. If this is not checked, it might become difficult for Legislatures to function in accordance with the provisions of the Constitution. It is, therefore proposed to amend the above two articles to impose a requirement as to acceptance of the resignation by the Speaker or the Chairman and to provide that the resignation shall not be accepted by the Speaker or the Chairman if he is satisfied after making such inquiry as he thinks fit that the resignation is not voluntary or genuine.”

(emphasis supplied)

Thus, amendment was brought to place a check on the genuineness of the resignation. Now the seat was to be vacated only upon the acceptance of resignation by the Speaker with a view that he/she shall apply his/her mind to satisfy himself/herself that such resignation is voluntary.

To stop MLAs to join the opposition parties or defying the party whip during voting in the house without tendering actual resignation, the Constitution (52nd Amendment) Act, 1985[2], was brought to deal with the menace of such open defection, with the following Statement of Objects and Reasons:

“1.The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the then current session of Parliament an anti-defection Bill.

  1. The Bill seeks to amend the Constitution to provide that an elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and a nominated member of Parliament or a State Legislature who is a member of a political party at the time he takes his seat or who becomes a member of a political party within six months after he takes his seat, would be disqualified on the ground of defection if he voluntarily relinquishes his membership of such political party or votes or abstains from voting in such House contrary to any direction of such party or is expelled from such party. An independent member of Parliament or a State Legislature shall also be disqualified if he joins any political party after his election. A nominated member of Parliament or a State Legislature who is not a member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months from the date on which he takes his seat shall be disqualified if he joins any political party after the expiry of the said period of six months. The Bill also makes suitable provisions with respect to splits in, and mergers of, political parties. A special provision has been included in the Bill to enable a person who has been elected as the presiding officer of a House to sever his connections with his political party. The question as to whether a member of a House of Parliament or State Legislature has become subject to the proposed disqualification will be determined by the presiding officer of the House; where the question is with reference to the presiding officer himself, it will be decided by a member of the House elected by the House in that behalf.” (emphasis supplied)

In the aforesaid manner, Article 191(2) along with the  Tenth Schedule were inserted in the Constitution of India to deal with the extra-ordinary situations of destabilising the “constitutionally elected governments” and attacking the democracy, by resorting to unfair means.

It is clear from both the above Constitutional Amendments that the Indian democracy and Constitution had been evolving on the basis of past experiences and challenges coming up. After the 52nd Constitutional Amendment, no other Constitutional Amendment has been done to deal with the new challenges which kept on coming up in this regard.

Current Scenario

In the last one decade, new challenges have been coming up. For the lure of offices and other considerations best known to all, MLAs have started hopping on to a flight to some remote resort where they are kept under tight security even from their family members and then made to tender resignations “voluntarily”. These strategic resignations are to dodge the Tenth Schedule, which otherwise would have been attracted in case of group absenteeism. However, such absenteeism does not attract the Tenth Schedule in case of elections of Rajya Sabha. Such a situation may also give birth to infamous practice of convenient abductions or political murders as seen in history across jurisdictions, to force absenteeism.

It is interesting to note that such MLAs who resign have contested Bye-Elections on the ticket of the party which benefits from the resignation from their earlier affiliation. In fact, a lot of such resigning MLAs are awarded requisite ministries in the newly formed government, sometimes immediately and sometimes if they successfully win the bye-election as its candidate. Such practices have made resignation a powerful tool for elected legislators to negotiate quid-pro-quo deals within their party and if the need be, with the party in opposition which is already hungry for power.

Such practices mock the current Constitutional democratic set up and ridicule the public mandate. They seriously tend to commit a fraud by bringing in a lost party to power, as against the wishes of the governed. One might argue that there is nothing wrong with such practices, because if the rebel MLA is re-elected in the bye-election under a different party, it would be an automated approval of the defection. But this is a fallacious argument. Rebel MLA already having been a part of a successful campaign has a clear head start as against any other candidate which will be set up by the defected party for that constituency. Therefore, defection in the first place by way of resignation is a fraud on the trust of the public which puts such a candidate in power by virtue of his affiliation to a particular political party.

Critics may also argue that people vote for the candidate, based on his individual merits as public figure rather than on the basis of the political party to which he/she is a member of. However this holds good only in theory. It is well known that in every contested election a symbol is allotted to every contesting candidate in accordance with the provisions of the Election Symbols (Reservation and Allotment) Order, 1968. Such symbols may be either reserved or free. ‘Reserved Symbol’ is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party and ‘Free Symbol’ is a symbol for candidates other than those setup by the recognised political party. Recognised political party means either a National Party or a State Party. A detailed procedure is provided in law for recognition of a National and State Party. Thus, a person gets to contest election under the ‘Reserved Symbol’ only when he is setup as a candidate of ‘Recognised Party’. It is thus clear from the above that a candidate setup by recognised party gets the privilege of contesting election under the symbol of a recognised party.

A parliamentary democracy, like that of India, functions on the basis of the party system.  The Tenth Schedule to the Constitution recognises the importance of the political parties in our democratic set up.  It is open for Parliament to provide that the members of the political party elected on a party ticket, act according to the decisions made by the party and not against it.

It is indeed a privilege, for a candidate set up by a recognised political party, that he gets votes based on the goodwill of the political party, including the goodwill of star campaigners of the party who solicited votes for that candidate. The political party incurs huge expenditures in the said election campaigns for the candidate. The candidate also benefits from the ideology of the political parties manifested in the election manifesto because it also influences people to vote. Hence, it is not just the candidate who is voted for, but it is the political party who is also put to vote of electors. If the contrary were to be believed there would not be any difference in the success rate between the candidates setup by the  recognised political parties and an Independent candidates.

In the history of parliamentary elections in India prior to 2019 Lok Sabha Elections, a total of 44,962 independents have contested polls but only 222 of them have won to become Member of Parliament (MP) rendering a mere 0.49% chance of success.[3] In the first election in 1951, where 37 Independent Candidates won, the number has fallen down to 3 in the 2014 elections.[4] These ever declining figures even prompted the Election Commission and Law Commission to recommend that Independent Candidates must be debarred from contesting elections altogether.[5]

Therefore it is clear that people do vote for the symbol of political parties and there is hardly any doubt as to the vital role political parties play in the success of any candidate from any constituency. The Supreme Court has also opined that political parties are sine qua non of parliamentary democracy.[6]

Hence, a recognised political party is at a higher pedestal than a candidate, due to which the claim of a recognised political party must be recognised upon the seat concerned of MLA, even in case of vacancy of seat for any reason (resignation, death, etc), until the results of the bye-elections are declared.

Conclusion

The current situations as observed in the case of Karnataka, Madhya Pradesh and Rajasthan, tell us a tale of how parties have circumvented the defection law to put the ruling party in an unfair position. The duly elected Governments in the respective States were subjected to a vote of confidence which they were destined to lose, due to the prior resignations in strategic numbers enticed by personal considerations. It also gives undue advantage in Rajya Sabha Elections also like in Gujarat and Madhya Pradesh. Such practices can set up a trend which may prove to be fatal to the concept of federalism in this country wherein an all powerful Central Government can deploy its resources to help their party in the States where other parties have formed the Governments by orchestrating a similar fall.

Therefore to remedy the situation we suggest that if a duly elected Government comes in minority, upon vacancy of seats due to resignations or death of MLAs then also such Government shall be permitted to continue until the Bye-Elections are completed upon such seats. In other words, the party on whose ticket such resignee/dead MLA won the election should have a claim over such seat.  This can be achieved in the following manner:

  • The house strength and majority mark must be deemed to be unchanged i.e. not reduced by the number of vacancies, till the results of bye-elections to such vacant seats are declared.
  • The vacant seat must be counted as notional seat of the party on whose ticket such resignee/dead MLA won the election, till the results of bye-elections to such vacant seats are declared.
  • The Election to the Council of State (Rajya Sabha) be deferred, till the results of bye-elections to such vacant seats are declared, if the strategic number of vacant seats has bearing on the result of election to the Council of States.

This will ensure that no opposition party will gain any advantage from inducing such strategic resignations, in forming the Government or taking undue advantage in election like Member of Council of State (Rajya Sabha) but at the same time, the legitimate chance of opposition party to form the Government will not be hampered but only delayed by 6 months. It will also reinforce the true spirit of a democracy that ultimately it is the people who will decide the fate of any Government in bye-elections.

If the resignee MLA actually won the preceding elections on his independent merit, he will have a fair shot of getting re-elected in the by-elections either independently or on the ticket of different party. Similarly if the opposition party manages to win the bye-elections with numbers adequate to establish majority, they will get their due shot at forming the government in accordance with the public mandate. We urge Parliament and the polity of our country to consider, debate and bring an amendment to give effect to these proposed changes in law, as it will also ensure that the strategic resignations of today do not turn into mysterious abductions or deaths of tomorrow.

Further to support our suggestion, the time period to conduct such by-elections may be reduced from 6 months to 3 months. This will ensure that the legal fiction suggested operates only to achieve its purpose and not become a tool for further abuse.


*Former Additional Advocate General of Madhya Pradesh and  Practicing Advocate in High Court of Madhya Pradesh.

** Final year student pursuing BA LLB (Hons.) from National Law Institute University Bhopal.

[1] Constitution (33rd Amendment) Act, 1974

[2] Constitution (52nd Amendment) Act, 1985

[3] https://www.news18.com/news/politics/since-the-1st-elections-only-0-49-of-independent-candidates-have-managed-to-enter-lok-sabha-2047541.html

[4] https://factly.in/law-commission-india-recommending-independent-candidates-debarred-from-contesting-elections/

[5] Law Commission of India, Government of India, Report No. 255 on Electoral Reforms, 2015

[6] Kuldip Nayyar v. Union of India, (2006) 7 SCC 1.

Legislation UpdatesStatutes/Bills/Ordinances

The Central Sanskrit Universities Bill, 2020 has been passed by the Parliament.

The Lok Sabha had already passed the Bill on 12th December 2019. Speaking after the passing of the Bill, Union HRD Minister Shri Ramesh Pokhriyal ‘Nishank’ thanked the Members of the House for their support in passing the Bill .This bill will convert (i) Rashtriya Sanskrit Sansthan, New Delhi, (ii) Shri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi, and (iii) Rashtriya Sanskrit Vidyapeeth, Tirupati into Central Sanskrit Universities.

Purpose of introducing the Bill:

The upgradation of three Deemed to be Universities in Sanskrit, namely, Rashtriya Sanskrit Sansthan, Delhi, Sri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi and Rashtriya Sanskrit Vidyapeeth, Triputi into Central Universities through the Central Sanskrit Universities Bill, 2019 would enhance the status of these Universities and will give a boost to Post Graduate, Doctoral and Post Doctoral education and Research in the field of Sanskrit and Shastraic education. It would help in getting better faculty, attract foreign students, Sanskrit scholars, foreign faculty of international repute and help in international collaborations with global Universities across the world. This will also help in enhancing the opportunities for imparting education in the field of Indian Philosophy, Yoga, Ayurveda and Naturopathy

Case BriefsHigh Courts

Bombay High Court: A Division Bench of B.P. Dharmadhikari, ACJ and N.R. Borkar, J. while dismissing a writ petition held that,

Union cannot exist without State and States therefore, form important part of consideration when language of Union is to be looked into. Thus, Parliament has in Section 3(5) of Official Language Act, 1963 envisaged resolution of discontinuance of use of English Language.

Petitioners stated that they are registered under the Society Registration Act, 1860 and also are Public Trust as per the Bombay Public Trust Act, 1950 with the object of promoting the cause of Hindi language.

Further, they prayed to declare Official Language Act, 1963 unconstitutional or in the alternate to quash and set aside its Section 3(5) as unconstitutional

Counsel for the petitioner, V. V. Khemka stated that the subject of official language was deliberately not included in the 7th Schedule and doesn’t form part of the scheme commencing from Article 246 onwards upto Article 254 of Constitution of India.

Continuation of Official Languages Act, 1963 for the last 57 years is, contrary to Article 343.

Section 3(5) of the Official Language Act, 1963 continues the use of the English language for purposes of Chapter-I gave primacy to legislatures of all States and this treatment or primacy is unconstitutional.

Respondent contended that separate treatment given to official language in Part XVII itself militates the petitioner’s arguments.

High Court on perusal of the contentions placed by the parties, stated that,

Article 343(3) of the Constitution of India permits Parliament to bring a law to permit the use of English beyond the period of 15 years and when the said period was about to expire, Parliament thought it fit to bring into the Official Languages Act, 1963 and Section 3 of the said Act points out the circumstances in which user of English can be discontinued.

Bench stated that as far as Section 3(5) is concerned, it requires resolutions for discontinuance of use of the English language passed by legislatures of all States which have not adopted Hindi as their official language.

Article 345 itself begins with words “Subject to the provisions of articles 346 and 347” and empowers legislature of a State to adopt any one or more of the languages in use in that State or Hindi as the language for official purposes.

In so far as affairs of States are concerned, the States have been given supremacy to decide upon language to be used by them. Article 343 does not in any way interfere with that supremacy. 

Court found nothing unconstitutional in Section 3(5) of the Official Languages Act, 1963. [Rashtrabhasha Mahasangh v. Union of India,  2020 SCC OnLine Bom 417, decided on 12-03-2020]

Legislation UpdatesStatutes/Bills/Ordinances

After clearing the passage for some major Bills like Citizenship (Amendment) Bill, 2019 now the Winter Session of the parliament is likely to take up the following bills for discussion:

The Insolvency and Bankruptcy Code (Second Amendment) Bill, 2019, inter alia, provides for the following, namely:—

(i) to omit the proviso to clause (12) of section 5 of the Code so as to clarify that the insolvency commencement date is the date of admission of an application for initiating corporate insolvency resolution process;

(ii) to amend section 7 of the Code to insert certain provisos specifying a minimum threshold for certain classes of financial creditors for initiating insolvency resolution process;

(iii) to amend section 11 of the Code so as to clarify that a corporate debtor should not be prevented from filing an application for initiation of corporate insolvency resolution process against other corporate debtors;

(iv) to amend section 14 of the Code to clarify that a licence, permit, registration, quota, concession, clearances or a similar grant or right cannot be terminated or suspended during the Moratorium period;

(v) to amend section 16 of the Code so as to provide that an insolvency resolution professional should be appointed on the date of admission of the application for initiation of insolvency resolution process;

(vi) to amend section 23 of the Code to enable the “resolution professional” to manage the affairs of the corporate debtor during interim period between the expiry of corporate insolvency resolution process till the appointment of a liquidator;

(vii) to insert a new section 32A so as to provide that the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease under certain circumstances;

(viii) to amend section 227 of the Code so as to clarify that the insolvency and liquidation proceedings for financial service providers may be conducted with such modifications and in such manner as may be prescribed; and

(ix) the other amendments which are of consequential in nature.

The proposed legislation intends to amalgamate, simplify and rationalise the relevant provisions of the following nine central labour enactments relating to social security, namely:––

1. The Employees’ Compensation Act, 1923;
2. The Employees’ State Insurance Act, 1948;
3. The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952;
4. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959;
5. The Maternity Benefit Act, 1961;
6. The Payment of Gratuity Act, 1972;
7. The Cine Workers Welfare Fund Act, 1981;
8. The Building and Other Construction Workers Welfare Cess Act, 1996; and
9. The Unorganised Workers’ Social Security Act, 2008.

The Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019 seeks to —

(a) expand the scope of the Act by modifying the definitions of ‘children’, ‘parents’, ‘maintenance’, ‘welfare’ and ‘senior citizens’, to enable parents and senior citizens to lead a life of dignity;

(b) enlarge the mode of submission of application for maintenance by the parents or senior citizens;

(c) provide for expeditious disposal of maintenance applications with special preference to the applications of senior citizens above eighty years of age, so as to enable parents or senior citizens to receive necessary relief;

(d) remove the upper limit of rupees ten thousand as monthly maintenance amount that may be awarded by the Tribunal;

(e) extend the right to file appeal to children and relatives also who are aggrieved by the order of the Maintenance Tribunal, if they continue to pay the maintenance amount as ordered by the Maintenance Tribunal;

(f) provide for registration of Senior Citizens’ Care Homes, Multi-Service Day Care Centre for Senior Citizens and Institutions providing Homecare Services for Senior Citizens and their minimum standards;

(g) constitute Special Police Unit for Senior Citizens in each district and appoint Nodal Officers for Senior Citizens in every Police Station;

(h) maintain Helpline for senior citizens; and

(i) provide stringent punishment to those who abuse or abandon parents or senior citizens

The proposed legislation seeks to bring a strong and robust data protection framework for India and to set up an Authority for protecting personal data and empowering the citizens’ with rights relating to their personal data ensuring their fundamental right to “privacy and protection of personal data”.

The upgradation of three Deemed to be Universities in Sanskrit, namely, Rashtriya Sanskrit Sansthan, Delhi, Sri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi and Rashtriya Sanskrit Vidyapeeth, Triputi into Central Universities through the Central Sanskrit Universities Bill, 2019 would enhance the status of these Universities and will give a boost to Post Graduate, Doctoral and Post Doctoral education and Research in the field of Sanskrit and Shastraic education.

Legislation UpdatesStatutes/Bills/Ordinances

Parliament passes the Citizenship (Amendment) Bill, 2019 today.

The Bill has been passed with a majority of 125.


On 10-12-2019, the Citizenship (Amendment) Bill, 2019 was passed by Lok Sabha with a majority of 311 in favour of the Bill.

Following are provisions to be amended as placed in the Bill:

  • Amendment of Section 2:

In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), in clause (b), the following proviso shall be inserted, namely:—

“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the
Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act.”

  • Insertion of new Section 6B

Special provisions as to the citizenship of person covered by the proviso to clause (b) of sub-section (1) of Section 2.

  • Amendment of Section 7D

In section 7D of the principal Act,—

(i) after clause (d), the following clause shall be inserted, namely:—

“(da) the Overseas Citizen of India Cardholder has violated any of the provisions of this Act or provisions of any other law for time being in force as may be specified by the Central Government in the notification published in the Official Gazette; or”.

(ii) after clause (f), the following proviso shall be inserted, namely:—

“Provided that no order under this section shall be passed unless the Overseas Citizen of India Cardholder has been given a reasonable opportunity of being heard.”

  • Amendment of Section 18

In section 18 of the principal Act, in sub-section (2), after clause (ee), the following clause shall be inserted, namely:—

“(eei) the conditions, restrictions and manner for granting certificate of registration or certificate of naturalisation under sub-section (1) of section 6B;”

  • Amendment of Third Schedule

In the Third Schedule to the principal Act, in clause (d), the following proviso shall be inserted, namely:—

‘Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or service of Government in India as required under this clause shall be read as “not less than five years” in place of “not less than eleven years”.

*Citizenship (Amendment) Bill, 2019 passed by Lok Sabha


Discussion in Rajya Sabha has begun: [LIVE UPDATES]

  • Amit Shah: There has been an almost 20% decline each in the population of religious minorities in both Pakistan and present-day Bangladesh. Either they were killed or they fled to India for shelter [ANI]
  • Shah says, CAB was in their manifesto and it is their duty to bring it in the House for discussion.
  • No Muslim in India needs to worry due to this Bill. Don’t get scared if someone tries to scare you. — Home Minister
  • Anand Sharma speaks on the Bill in opposition
  • Sharma: It fails the morality test, it is divisive and discriminatory
  • The bill that you have brought is an assault on the very foundation of the Indian constitution, it is an assault on the Republic of India. It hurts the soul of India, Says Sharma [ANI]
  • JP Nadda speaking in favour of Citizenship Bill
  • This Bill is in national interest: Nadda
  • Derek O Brien: I read that PM said this will be written in golden letters. I will tell you where it will be written, it will be written on the grave of the father of the nation, but which father of the nation? In Karachi, on Jinnah’s grave [ANI]
  • RCP Singh, JDU in Rajya Sabha: We support this bill. The bill is very clear, it gives citizenship to persecuted minorities from three of our neigbouring countries, but here debate is being done on our Indian Muslim brothers.[ANI]
  • P. Chidambaram speaks on the Bill.
  • Chidambaram: Ultimately the non-elected people i.e. the lawyers, judges will be deciding on the Bill and it is a question on the Parliament.
  • Chidambaram: This government is ramming through this Bill to advance its Hindutva agenda. This is a sad day. I am absolutely clear that this law will be struck off. [ANI]
  • Sanjay Raut of Shiv Sena speaks on the Bill. “We don’t need to prove our nationalism”
  • Satish Chandra Mishra of BSP Speaks in opposition to the Bill.
  • Praful Patel of NCP is now speaking.
  • Bill is being passed in a hurry -Praful Patel
  • Kapil Sibal speaks on the Bill.
  • Sibal: I request you Home Minister “rise above the politics!”
  • Sibal: They are targeting a community without naming it
  • This Bill is not tenable-Sibal
  • Those who have no idea of India cannot protect the idea of India -Kapil Sibal
  • Sanjay Singh of AAP Party opposes the Bill.
  • D Kupendra Reddy, JD(S): This Bill will be dilution of our secularism policy in this country. I strongly oppose this Bill. I recommend that the Bill be sent to a select committee of Parliament for scrutiny.[ANI]
  • Home Minister: Neither CAB is anti-Muslim, nor abrogation of Article 370 is anti-Muslim, Triple Talaq Bill is not anti-Muslim either. Triple Talaq is the Bill to give rights to crores of Muslim women in the country. [ANI]
  • CAB won’t hurt the citizenship of the Muslims.
  • CAB won’t be referred to Select Committee
Amendments to existing lawsLegislation Updates

With the Dadra and Nagar Haveli and Daman and Diu (Merger of Union territories) Act, 2019 now both the existing Union Territories of Dadra and Nagar Haveli and Daman and Diu will be formed into —

“Union territory of Dadra and Nagar Haveli and Daman and Diu”

The said Act received President’s assent on 09-12-2019.

Following are the major heads of the Act:

  • Formation of Union territory of Dadra and Nagar Haveli and Daman and Diu
  • Amendment of Article 240 of Constitution
  • Amendment of the First Schedule to Constitution
  • Allocation of seats in House of People
  • Provisions as to sitting members
  • Extension of jurisdiction of High Court of Bombay
  • Assets and Liabilities
  • Provisions as to Services

*Please follow the link to read the Act: The Dadra and Nagar Haveli and Daman and Diu (Merger of Union territories) Act, 2019


Ministry of Law and Justice

Hot Off The PressNews

In line with the recommendations of the Second National Commission on Labour, the Ministry has taken steps for drafting four Labour Codes i.e. the Code on Wages; the Code on Industrial Relations, the Code on Occupational Safety, Health & Working Conditions & the Code on Social Security by simplifying, amalgamating and rationalizing the relevant provisions of the existing Central Labour Laws. Out of these 4 Labour Codes, the Code on Wages, 2019, has been notified on 8th August, 2019 in the Gazette of India. The Occupational Safety, Health and Working Conditions Code, 2019 was introduced in Lok Sabha on 23rd July, 2019 and subsequently, referred to the Parliamentary Standing Committee on Labour for examination. The Industrial Relations Code, 2019 has been introduced in Lok Sabha on 28th November, 2019. The Code on Social Security, 2019 has been approved by the Cabinet for its introduction in Parliament.

These Labour Codes, inter-alia, address issues relating to minimum wage, social security and working conditions for workers.  For health care, Ayushman Bharat-Pradhan Mantri Jan Arogya Yojana (AB-PMJAY) provides health coverage up to Rs. 5.00 lakh per family per annum to around 10.74 crore deprived families based on the Socio-Economic Caste Census (SECC) for secondary and tertiary care hospitalization.

The proposed codification will also make the existing labour laws in sync with the emerging economic scenario; reduce the complexity by providing uniform definitions and reduction in multiple authorities under various Acts and bring transparency and accountability in enforcement of labour laws. This, in turn, would lead to ease of compliance, catalyzing the setting up of manufacturing units including boosting Labour-intensive industries such as agriculture and manufacturing exports. This would lead to enhancement in employment opportunities as well as its formalization along with ensuring safety, social security and welfare of workers.

This information was given by Santosh Kumar Gangwar Minister of State (I/C) for Labour and Employment in a written reply to a question in Lok Sabha today.


Ministry of Labour & Employment

[Source: PIB]

Hot Off The PressNews

Following are the Bills that have received President’s assent in this week of the Parliament Sessions:

  • The Chit Funds (Amendment) Act, 2019
  • The Jallianwala Bagh National Memorial (Amendment) Act, 2019
  • The Transgender Persons (Protection of Rights) Act, 2019
  • The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019

Read the process of how a Bill becomes an Act below:

The basic function of Parliament is to make laws. All legislative proposals have to be brought in the form of Bills before Parliament. A Bill is a statute in draft and cannot become law unless it has received the approval of both the Houses of Parliament and the assent of the President of India.

The process of law making begins with the introduction of a Bill in either House of Parliament. A Bill can be introduced either by a Minister or a member other than a Minister. In the former case, it is called a Government Bill and in the latter case, it is known as a Private Member’s Bill.

A Bill undergoes three readings in each House, i.e., the Lok Sabha and the Rajya Sabha, before it is submitted to the President for assent.

First Reading

The First Reading refers to (i) motion for leave to introduce a Bill in the House on the adoption of which the Bill is introduced; or(ii) in the case of a Bill originated in and passed by the other House, the laying on the Table of the House of the Bill, as passed by the other House.

Second Reading

The Second Reading consists of two stages.The “First Stage” constitutes discussion on the principles of the Bill and its provisions generally on any of the following motions – that the Bill be taken into consideration; or that the Bill be referred to a Select Committee of the House; or that the Bill be referred to a Joint Committee of the Houses with the concurrence of the other House; or that the Bill be circulated for the purpose of eliciting opinion thereon. The “Second Stage” constitutes the clause by clause consideration of the Bill, as introduced in the House or as reported by a Select or Joint Committee, as the case may be.

In the case of a Bill passed by Rajya Sabha and transmitted to Lok Sabha, it is first laid on the Table of Lok Sabha by the Secretary-General, Lok Sabha. In this case the Second Reading refers to the motion (i) that the Bill, as passed by Rajya Sabha, be taken into consideration; or (ii) that the Bill be referred to a Select Committee (if the Bill has not already been referred to a Joint Committee of the Houses).

Third Reading

The Third Reading refers to the discussion on the motion that the Bill or the Bill, as amended, be passed.

Almost similar procedure is followed in Rajya Sabha in respect of Bills introduced in that House.

After a Bill has been finally passed by the Houses of Parliament, it is submitted to the President for his assent. After a Bill has received the assent of the President, it becomes the law of the land.

Reference of Bills to Departmentally Related Standing Committees

The year 1993 ushered in a new era in the history of Indian Parliament when 17 Departmentally Related Standing Committees were constituted. The number of Standing Committees has now been increased from 17 to 24. While 8 Committees work under the direction of the Chairman, Rajya Sabha, 16 Committees work under the direction of the Speaker, Lok Sabha.

One of the important functions of these Committees is to examine such Bills introduced in either House as are referred to them by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, and make report thereon.

The reports of the Standing Committees have persuasive value. In case the Government accepts any of the recommendations of the Committee, it may bring forward official amendments at the consideration stage of the Bill or may withdraw the Bill reported by the Standing Committee and bring forward a new Bill after incorporating the recommendations of the Standing Committee.

BILLS BEFORE A SELECT OR JOINT COMMITTEE

If a Bill is referred to a Select or a Joint Committee, it considers the Bill clause-by-clause just as the House does. Amendments can be moved to the various clauses by the members of the Committee. After the report of the Select or Joint Committee has been presented to the House, the member-in-charge of the Bill usually moves the motion for consideration of the Bill, as reported by the Select or Joint Committee, as the case may be.

A Money Bill or a Financial Bill containing any of the provisions calculated to make a Bill a Money Bill, however, cannot be referred to a Joint Committee of the Houses.

RESTRICTION ON INTRODUCTION OF CERTAIN CATEGORIES OF BILLS IN RAJYA SABHA

A Bill may be introduced in either House of Parliament. However,a Money Bill can not be introduced in Rajya Sabha.It can only be introduced in Lok Sabha with prior recommendation of the President for introduction in Lok Sabha. If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker thereon is final.

Rajya Sabha is required to return a Money Bill passed and transmitted by Lok Sabha within a period of 14 days from the date of its receipt. Rajya Sabha may return a Money Bill transmitted to it with or without recommendations. It is open to Lok Sabha to accept or reject all or any of the recommendations of Rajya Sabha.

However, if Rajya Sabha does not return a Money Bill within the prescribed period of 14 days, the Bill is deemed to havebeen passed by both Houses of Parliament at the expiry of the said period of 14 days in the form in which it was passed by Lok Sabha.

Like Money Bills, Bills which, inter alia, contain provisions for any of the matters attracting sub-clauses (a) to (f) of clause (1) of article 110 can also not be introduced in Rajya Sabha. They can be introduced only in Lok Sabha on the recommendation of the President. However, other restrictions in regard to Money Bills do not apply to such Bills.

CONSTITUTION AMENDMENT BILLS

The Constitution vests in Parliament the power to amend the Constitution. Constitution Amendment Bills can be introduced in eitherHouse of Parliament. While motions for introduction of Constitution Amendment Bills are adopted by simple majority , a majority of the total membership of the House and a majority of not less than two-thirds of the members present and voting is required for adoption of effective clauses and motions for consideration and passing of these Bills. Constitution Amendment Bills affecting vital issues as enlisted in the proviso to article 368(2) of the Constitution after having been passed by the Houses of Parliament, have also to be ratified by not less than one half of the State Legislatures.

JOINT SITTING

Article 108(1) of the Constitution provides that when a Bill (other than a Money Bill or a Bill seeking to amend the Constitution) passed by one House is rejected by the other House or the Houses have finally disagreed as to the amendments made in the Bill or more than six months lapse from the date of the receipt of the Bill by the other House without the Bill being passed by it, the President may, unless the Bill has lapsed by reason of dissolution of Lok Sabha, notify to the Houses by message, if they are sitting, or by public notification, if they are not sitting, his intention to summon them to meet in a Joint Sitting.

The President has made the Houses of Parliament (Joint Sittings and Communications) Rules in terms of clause (3) of article 118 of the Constitution to regulate the procedure with respect to Joint Sitting of Houses.

So far, there have been three occasions when Bills were considered and passed in a Joint Sitting of the Houses of Parliament.

ASSENT TO BILLS

After a Bill has been passed by both the Houses of Parliament, it is presented to the President for his assent. The President mayeither assent to the Bill, withhold his assent, or return the Bill, if it is not a Money Bill, with a message for reconsideration of the Bill, or any specified provisions thereof, or for considering the desirability of introducing any such amendments as he may recommend in his message.

The President may either give or withhold his assent to a Money Bill. A Money Bill can not be returned to the House by the President for reconsideration. Also, the President is bound to give hisassent to Constitution Amendment Bill passed by Parliament by the prescribed special majority and, where necessary, ratified by the requisite number of State Legislatures.

Hot Off The PressNews

The Ministry of Social Justice and Empowerment introduced a Bill titled “The Transgender Persons (Protection of Rights) Bill, 2019” in the Lok Sabha In order to provide for the protection of rights of transgender persons and their welfare.

The Bill was passed by the Lok Sabha on 05.08.2019 and by the Rajya Sabha on 26.11.2019.

The Ministry had released Rs. 1.00 Crore to National Backward Classes Finance and Development Corporation (NBCFDC) for conducting skill development training programme for the members of Transgender Community during the financial year 2018-19. At present, there is no reservation for Transgender persons in public sector employment.

This information was given by Minister of State for Social Justice and Empowerment Shri Rattan Lal Kataria in a written reply in Rajya Sabha today.


Ministry of Social Justice & Empowerment

[Source: PIB]

[Press Release dt. 04-12-2019]

Cabinet DecisionsLegislation Updates

As per the reports of ANI, the Citizenship Amendment Bill, 2019 has been approved by the Union Cabinet.

It is said that it will be introduced in the Winter Session of Parliament.

Provisions that would be introduced for further discussion in the Parliament and have been incorporated in the bill are as follows:

  • In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), after clause (b), the following provisos shall be inserted, namely:—

“Provided that persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have been exempted by the Central Government by or under clause (c) of sub- section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any order made thereunder, shall not be treated as illegal migrants for the purposes of that Act:

Provided further that on and from the date of commencement of the Citizenship (Amendment) Act, 2019, any proceeding pending against any person referred to in the first proviso shall be abated and such person shall be eligible to apply for naturalisation under Section 6.”

  • In the principal Act, in section 7D,—

(i) after clause (d), the following clause shall be inserted namely:—

“(da) the Overseas Citizen of India Cardholder has violated any of the provisions of this Act or provisions of any other law for the time being in force as may be specified by the Central Government by notification published in the Official Gazette; or”;

(ii) after clause (f), the following proviso shall be inserted, namely:—

“Provided that no order under this section shall be passed unless the Overseas Citizen of India Cardholder has been given a reasonable opportunity of being heard.”

  • In the principal Act, in the Third Schedule, in clause (d), the following proviso shall be inserted, namely:—

“Provided that for the persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, the aggregate period of residence or service of a Government in India as required under this clause shall be read as “not less than six years” in place of “not less than eleven years”.

Legislation UpdatesStatutes/Bills/Ordinances

Rajya Sabha clears passage for the SPG Amendment Bill, 2019 today.

Special Protection Group (Amendment) Bill, 2019 is a bill introduced further to amend the Special Protection Group Act, 1988.

Amendment of Section 4

2. In section 4 of the Special Protection Group Act, 1988,—

(i) for sub-section (1), the following sub-section shall be substituted, namely:—

“(1) There shall be an armed force of the Union called the Special Protection Group for providing proximate security to,—

(a) the Prime Minister and members of his immediate family residing with him at his official residence; and

(b) any former Prime Minister and such members of his immediate family as are residing with him at the residence allotted to him, for a period of five years from the date he ceases to hold the office of Prime Minister.”;

(ii) in sub-section (1A), for clause (b), the following clause shall be substituted, namely:—

“(b) where the proximate security is withdrawn from a former Prime Minister, such proximate security shall also stand withdrawn from members of immediate family of such former Prime Minister.”