CA Dr Arpit Haldia

Arpit Haldia

What holds for passing of 122nd Constitutional Amendment Bill on GST in Rajyasabha

In this article I would be throwing light on the process required for approval of GST Bill by Loksabha and Rajyasabha and ratification by State Legislatures. The all important session of Loksabha and Rajyasabha is in progress and 122nd Constitutional Amendment Bill would be again placed before the house for its approval.

Present Status: The bill was approved by Loksabha on dated May 6, 2015 but it is pending before Rajyasabha for its approval. The bill was introduced before Rajyasabha for approval but it was referred to the select committee for examination on May 14, 2015. The select committee submitted its report on July 22, 2015.

♠ What is Constitutional Amendment Bill:

Before moving ahead, it would be imperative that we know what exactly is a Constitutional Amendment Bill. Bill seeking to amend the Constitution can be of three types:

Category I: Bills that are passed by Parliament by simple majority

Category II: Bills that have to be passed by Parliament by the special majority prescribed in article 368(2) of the Constitution

Category III: Bills that have to be passed by Parliament by the special majority as aforesaid and also to be ratified by not less than one-half of the State Legislatures

Out of the above classification of Constitutional Amendment Bill, 122nd Constitutional Amendment Bill falls in Category III of the above list. The salient features of Category III of the Constitutional Amendment Bills are as follows:

a) Which types of Constitutional Amendment Bills fall under Category III of Constitutional Amendment Bill: Proviso to article 368(2) of the Constitution of India provides that Constitutional Amendment bill which seeks to amend following provisions of Constitution are to be passed by Parliament by the special majority and also to be ratified by not less than one-half of the State Legislatures:

  • Article 54, Article 55: These matters concern federal structure or are of common interest to both Union and the States viz the election of the President.
  • Article 73, Article 162: These maters relate to the executive power of the Union and the States.
  • Article 241: These matters relate to High Courts for Union territories.
  • Chapter IV of Part V, Chapter V of Part VI: These matters relate to Union judiciary and the High Courts in the States.
  • Chapter I of Part XI and any of the Lists in the Seventh Schedule: The matters relate to distribution of legislative powers between the Union and the States.
  • Representation of States in Parliament, or
  • Provisions of article 368 of Constitution

b) Salient Features of process of approval by each house, ratification by half of the state legislature and subsequent consent the president of India

  • A Bill for the purpose of amendment to the constitution can be introduced in either of the House of Parliament.
  • The Bill has to be passed in each House by a majority of the total membership of that House and by a majority of not less than 2/3 of the members of that house present and voting.
  • If however, a bill passed by one house is passed by the other house with certain amendments then the bill would again have to be approved by the other house.
  • The amendment shall also be ratified by Legislature of not less than one half of the States.
  • Once both the house and state legislature approve the bill, it shall be presented to the President who shall give his assent to the Bill.
  • Once consent by the president is given then Constitution shall stand amended in accordance with the terms of the Bill.

♠ Why 122nd Constitutional Amendment Bill require ratification from states:

Certain amendments in 122nd Constitutional Amendment Bill are covered under proviso to Article 368 of the Constitution i.e. for e.g. proposal to make changes in lists in seventh schedule to the Constitution, proposal to amend article 368 of the constitution and proposal to insert article 246A for providing concurrent powers to state and centre to levy taxes etc.

Therefore, 122nd Constitutional Amendment Bill in addition to be passed by each house by a majority of the total membership of that house and by a majority of not less than 2/3 of the members of that house present, would also require ratification by Legislature of not less than one half of the States of the amendments as provided in proviso to article 368(2) of the Constitution of India.

♠  Can 122nd Constitutional Amendment Bill on GST can be passed by Joint sitting of both the houses:

There was a lot of talk in the previous year that centre may consider calling joint session to pass the 122nd Constitutional Amendment Bill as it is stuck in Rajyasabha and government does not have a requisite majority for getting the bills passed in Rajyasabha. So what exactly is a Joint meeting of Rajyasabha and Loksabha. We would have to discuss the same before coming on to the main question of whether any such meeting can be called to pass a Constitutional Amendment bill.

a) What is meant by Joint sitting of the House:

The document published by Rajya Sabha Secretariat, New Delhi as “”Legislative Procedure In The Rajya Sabha”in the year 2005 provides a deep insight about the Joint sitting of the House as follows:

“If a Bill, passed by one House is rejected by the other House, or the Houses have finally disagreed as to the amendments to be made in the Bill, or more than six months lapse from the date of reception of the Bill by the other House without the Bill being passed by it, the President may call a joint sitting of the two Houses to resolve the deadlock. The Bill is deemed to have been passed by both the Houses in the form in which it is passed by a majority of the total number of members of both the Houses present and voting at the joint sitting.”

Instances where joint meeting of the houses has been called are as follows:

“So far there have been three occasions when joint sittings of the two Houses were held to resolve disagreements between them. The first such joint sitting was held in 1961 in respect of certain amendments to be made in the Dowry Prohibition Bill, 1959; the second one was held in 1978, when Rajya Sabha rejected the Banking Services Commission (Repeal) Bill, 1977, as passed by Lok Sabha; and the third joint sitting was held on 26 March, 2002 when the Prevention of Terrorism Bill, 2002, as passed by Lok Sabha was rejected by Rajya Sabha.”

b) Whether 122nd Constitutional Amendment bill on GST can be passed in a joint sitting of the House:

The question which comes is whether our constitution allows passing of Constitutional Amendment Bill through a Joint Meeting of the two houses. The document published by Rajya Sabha Secretariat, New Delhi as “”Legislative Procedure in the Rajya Sabha”in the year 2005 discusses the matter as follows:

“There cannot be a joint sitting of the Houses on a Money Bill or a Constitution Amendment Bill, since in respect of the former, the final power vests in Lok Sabha and in respect of the latter it has to be passed by the requisite majority in each House.”

Therefore, a Constitutional Amendment Bill i.e. 122nd Constitutional Amendment Bill, covered by article 368 of the Constitution cannot be passed by calling a joint meeting of both the houses.

♠ Whether there have been any Constitutional Amendment bills which could not be passed due to lack of requisite majority in Rajyasbha:

In an interesting observation, the document published by Rajya Sabha Secretariat, New Delhi as Legislative Procedure in Rajya Sabha in the year 2005 provides that following bills cannot be passed as the bills did not get requisite majority in Rajyasabha.

“The Constitution (Twenty-fourth Amendment) Bill, 1970, regarding the abolition of privy purses and privileges of the rulers of former Indian States, the Constitution (Sixty-fourth Amendment) Bill, 1989 and the Constitution (Sixty-fifth Amendment) Bill, 1989, regarding establishment of the Panchayati Raj bodies and the Municipalities in rural and urban areas, respectively could not be passed as these Bills did not get the requisite majority in Rajyasabha.”

♠  President assent in the case of Constitutional Amendment Bill:

The document published by Rajya Sabha Secretariat, New Delhi as “Legislative Procedure in the Rajya Sabha” in the year 2005 discusses the matter as follows:

“In the case of a Bill which seeks to amend any of the provisions of the Constitution in terms of article 368 of the Constitution after it is passed by the Houses by the requisite special majority and ratified by the States, where required by the proviso to clause (2) of article 368, the President has to accord his assent thereto.”

♠ Present position in the Parliament: Probable status for passing of bill.

Although, the exact scenario would only be clear as and when the bill is placed in Rajyasabha but probable scenario was published in a news report in a leading financial daily as follows:

“According to Bloomberg TV, 161 votes are required for the Constitution (122 Amendment) Bill to pass, given all Rajya Sabha members vote. At the same time 81 votes are required by the opposition if the bill is to be stalled. The BJP Government currently has the support Of 72 MPs In RS. The government needs to bring in the Left parties, JMM, INLD, YSCRP to its side. In case, AIADMK & Left abstain from voting, 147 Votes will be needed to get the bill passed and at the same time 73 Votes will be required by the opposition to Stall the bill. As far as the current tally is concerned, the passage of the bill has 2/3rd majority.”

It can safely be concluded that passing of the 122nd Constitutional Amendment Bill on GST in Rajyasabha would be start of a long drawn process. The process has been a start and stop affair over the past several years. Therefore, time is yet to come when we would finally be able to say that GST has seen the daylight in India.

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