Nipun Singhvi, Arunima Vijay & Pranjul Chopra*
The Story of Ayes and Noes
Recently, the country was gripped with controversy surrounding the due parliamentary procedures to be followed for passing of the Farm bills[1] and Labour bills[2] in the Upper House of the Parliament. In respect of the Farm bills, the Government of India was cornered by the Opposition, firstly, for not referring the bills to a Parliamentary Committee and secondly, for passing the contentious bills through a voice vote despite demand of the Opposition members of the House for division and voting method. The Deputy Chairman shielded himself by conveying that there was no order in the House to take a division, which also resulted in suspension of 8 members for the remaining part of the Monsoon Session over ‘unruly behaviour’ during the passage of the bills.
In the aftermath, various other members of the Opposition parties also boycotted the House contesting the suspension of the members and terming the procedure adopted by the Government of India as ‘undemocratic’. Amid this boycott from majority of members of the Opposition, it is alleged that the Rajya Sabha passed the three remaining Labour bills amongst other 12 bills through a voice vote. The Farm bills and the Labour bills also received presidential assent.
The procedure of voice voting adopted by the ruling party has been hotly debated especially given its shaky standing in Rajya Sabha[3] (86 of 243 members) as opposed to Lok Sabha[4] where it has a huge majority (302 of 540 members).
What does the Law say?
For a Legislative proposal, known as a Bill, to become an Act, has to be passed by each House of Parliament and obtain presidential assent thereafter. Article 100(1) of the Constitution of India provides that all questions at any sitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting. The proceedings are guided by the Rules of Procedure, which are implemented by the Chairman. The accepted convention for passing Bills in the Parliament is by orally communicating agreement or disagreement with the proposed motion where a motion is put to vote by the speaker calls for ‘ayes’ and ‘noes’.[5] However, as it is an oral vote, it does not put on parliamentary record the stand of political parties and individual MPs on contentious political issues.[6] Rule 252 (4) of the Rules of Procedure and Conduct of Business in the Council of States provides that if the opinion of the Chairman as to the decision of a question is challenged and he does not go for counting of ‘ayes’ and ‘noes’, he shall order a “Division” to be held in which vote of every MP will be recorded. Rule 252(4) is reproduced herein below:
“252. Division
…
(4) (a) If the opinion of the Chairman as to the decision of a question is challenged and he does not adopt the course provided for in sub- rule (3) he shall order a “Division” to be held.”
In the case of the present controversy, it has been alleged by the Opposition parties that ‘Division’ called by some Members of the House was denied by Deputy Chairman of Rajya Sabha in violation of the Constitution of India and the Rules of Procedure.
However, these Rules indisputably give the Chairman discretion in some matters to ensure smooth functioning of the House.[7] Furthermore, Article 122 of the Constitution provides that the validity of any proceedings in Parliament shall not be called into question on the ground of any alleged irregularity of procedure.
Old tactics~ orchestrating the way to success
There has been a lot of hue and cry recently on passing of these Farm Bills and Labour Bills without following the due procedure, however, history reminds that there have been plenty of instances in the past where the current ruling party has adopted the same scheme/method. The most recent being the Right to Information (Amendment) Bill, 2019, which was alleged to be passed through a voice vote amid a walkout from the Opposition parties. As a consequence, Seventeen Opposition parties wrote to the Rajya Sabha Chairman, Mr. M. Venkaiah Naidu, accusing the Government of India of ‘hurriedly passing’ legislations without any parliamentary scrutiny. In fact, a study by PRS Legislative Research detailed that 17th Lok Sabha was not scrutinising future laws enough in the haste to pass the bills. The Study confirmed that while 14th and 15th Lok Sabha from 2004 to 2014 had scrutinised 60 per cent and 71 per cent bills respectively, the 16th Lok Sabha scrutinised only 26 per cent of the total number of bills passed in Parliament.[8]
Another instance of the present Government bypassing this procedure, as elaborately mentioned in the letter written to the Rajya Sabha Chairman, was the Protection of Human Rights (Amendment) Bill, 2019 in which the Opposition parties were not given sufficient time to study legislation, seek amendments or ask questions as required under the Rules. The most controversial of such issues has been the bill to abrogate Article 370 in State of Jammu and Kashmir in the Rajya Sabha where a waiver was given by the Chairman for moving the resolutions without circulating advance copies to members, thus catching the members, off-guard.
The present Government’s action of introducing Taxation laws (Second Amendment) bill, 2016 and passing of the same through voice vote in Lok Sabha amid uproar by the opposition parties was disapproved as well.
The move of the Government of India to label Aadhaar Bill as money bill in order to bypass the assent of the Rajya Sabha to be enacted was also heavily criticised and though the Hon’ble Supreme Court, in a split verdict, upheld the constitutionality of the process, the dissenting judge termed this as a ‘fraud on the Constitution’.
The beauty of political hypocrisy is that the same Government of India had made a huge outcry when the Appropriation Bill was passed in Uttarakhand Assembly on March 18, 2016 through a voice vote, and the Speaker of the Legislative Assembly denied requests of Division, which was alleged as a failure of constitutional machinery.
Sadly, it is true that a number of important bills have also been passed through voice vote under the aegis of the leading Opposition Party amidst protests displayed then. Some of them being the National Food Security Bill 2013 (passed by voice in Rajya Sabha), The Lokpal and Lokayukta Bill, 2011 (passed by voice vote in Lok Sabha) and The Andhra Pradesh Reorganisation Bill, 2014 [Telangana] (passed by voice vote in Lok Sabha). In fact only 19 Bills out of 179 passed witnessed a division in the 15th Lok Sabha(2009- 2014) and 8 out of the 248 Bills that were passed in 14th Lok Sabha (2004- 2009).[9]
Possibility of challenge in Court of law
The Member of Parliament from Thrissur, Kerala, T.N. Prathapan, has challenged the constitutional validity of the recently promulgated Farm Bills before the Hon’ble Supreme Court alleging that bills were cleared hastily and unconstitutionally, in complete disregard of parliamentary norms. The grounds for challenge are that these legislations are violative of Article 14, 15 and 21 of the Constitution of India as well as Directive Principles enshrined in Chapter IV of the Constitution and accordingly are “liable to be struck down as unconstitutional, illegal and void”. Consequently, there have been various petitions filed in the Hon’ble Supreme Court challenging the constitutional validity of the said bills by Bhartiya Kisan Party, Rakesh Vaishnav (representative of Chattisgarh Kisan Congress), ML Sharma and Tamil Nadu MP Tiruchi Siva. However Labour Bills have not been challenged on the anvil of constitutional validity so far.
It is important to note there are a line of precedents clarifying that the scope and jurisdiction of the courts to interfere with the decision taken by the Speaker on the Floor of the House is limited in scope.
Separation of Powers is part of the basic structure of the Constitution of India. The doctrine lays down the principle that three organs of the State viz. Legislature, Executive and Judiciary, are supposed and expected to operate in different fields, so that there is no overlapping of jurisdiction of each of the said Organ over other. Article 122 of the Constitution embodies this doctrine by making judicial review impermissible of any Parliamentary proceedings on the ground of any alleged irregularity of procedure.[10] The same principle has been upheld in umpteen judgements by Hon’ble Supreme Court [M.S.M. Sharma V. Dr. Shree Krishna Sinha and others (AIR 1960 SC 1186); Janardan Reddy V. State of Hyderabad (AIR 1951 SC 217); Raja Ram Pal V. Hon’ble Speaker, Lok Sabha and Others ((2007) 3 SCC 184)].[11]
Accordingly, it is a right of each House of Parliament to be the sole judge of lawfulness of its own proceedings. In determining the validity of exercise of discretion, the Hon’ble Supreme Court held in the case of Union of India V. G. Ganayutham[12] that if the Wednesbury test is applied, the Court ought not to look into the correctness of choice made by the administrator amongst the various alternatives open to him, nor does the Court substitute its decision to that of the administrator. The Hon’ble Supreme Court laid down the principle way in 1965 in the case of In Re: Special Reference No. 1 of 1964[13] that a challenge against the validity of any proceedings inside the Legislature would only be possible if the said proceedings suffer not from mere irregularity of procedure, but from a substantive illegality.
It was in the case of Rojer Mathew V. South Indian Bank Ltd.,[14] that the passage of the Finance Act, 2017 as money bill was under challenge on the contention that it was done in order to by-pass the Rajya Sabha. It was argued by Mr. Arvind Datar on behalf of the petitioners that the Aadhaar judgment had not resolved whether the decision of the Lok Sabha Speaker of according the certification is subject to judicial review or not. The Hon’ble Supreme Court while referring the issue to a constitutional bench of seven-judges noted that if a blanket exemption from judicial scrutiny were to be granted, then it would open the floodgates for deviation from any Constitutional provision governing the functioning of Parliament and its legislative procedure. The case is still pending adjudication before the larger bench of seven judges.
With regard to the issue of whether the violation of parliamentary rules would amount to mere irregularity in procedure or substantial illegality, the Hon’ble Apex Court has held that rules are only procedural in nature and any violation of them would amount to an irregularity in procedure and not any illegality as such, and certainly not any violation of the Constitutional mandate.[15] The Hon’ble Bombay High Court while dealing with a similar controversy held as follows:
“…Dispute as to alleged non-compliance of one or the other Rules of Procedure or in respect of interpretation or application or non-application of the Rules merely leads to alleged breach of procedure, if at all and nothing more”. [16]
In the same line of precedents, it was categorically held in the case of Sanjay Lakhe Patil V. Haribhau Bagade[17] that voice test is a constitutionally valid method of proving majority in the House and discretion is vested in the Speaker to decide which mode has to be adopted viz. voice test or division. Hence, under the constitutional scheme, the decision of the Speaker in matters of passage of a Bill is paramount and absolute.[18]
It is thus evident that a challenge against the said Farm bills and Labour bills on the ground of failing to adhere to due parliamentary procedure stands on a precarious footing.
Justice hurried is justice buried
There is a saying that ‘Justice delayed is justice denied’. At the same time, there is another saying that ‘Justice hurried is justice buried.[19] In an ideal democracy, there is an endeavour to balance the actions between these two sayings. Though a challenge to validity of the legislations may fail, however, it is still unsettling to see the government’s urgency in enacting these legislations and the deliberate non-adherence to the Rules and long standing established practices. Law-making process is indeed a deliberative and consultative process and opting for a short-route of passing such half-baked legislations, especially in matters relating to public welfare legislations, like the recent Farm Bills and Labour Bills, may have far-reaching and damaging ramifications.
It is discomforting to see that in a democracy, the preferred method for making decisions in the Parliament is through a voice vote.[20] Deliberate efforts are required from both sides of the aisle to end this practice of voice votes in passing Bills relating to extremely contentious issues.[21] The lack of clarity of the number of members voting for or against a bill and heavy reliance placed on the audibility of ayes and noes and discretion of the Speaker of the house makes the entire procedure dubious.
Further, a sharp decline in referring the Bills to Parliamentary Committees is also a cause of concern as these committees interact with experts, academicians, members of the civil society, industry as well as government representatives on the technicalities of the bills and its effect on the citizens to ensure that there are no or minimum gaps in the law.
At this stage, it is important to reiterate the landmark judgment of Kihoto Hollohan V. Zachillhu and Others[22]:
“43. Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the view expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines.”
In recent times it has been observed that the Members of the Opposition oppose the bills introduced by the Government for the sake of opposition, not on the merits, and only in order to stall the proceeding of the Houses. Arguably, many major provisions of the Farm Bills were also promised by the leading Opposition party in its manifesto of 2019 elections. Thus, there is a need to reach a balance in Parliamentary debates and discussions to achieve parliamentary democracy in true sense.
Citations:
[1] The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020; The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020; and The Essential Commodities (Amendment) Bill, 2020.
[2] The Occupational Safety, Health and Working Conditions Code Bill, 2020; Industrial Relations Code Bill, 2020; and The Code of Social Security, 2020.
[3] Party Position in the Rajya Sabha as on 03/10/2020, available at https://rajyasabha.nic.in/rsnew/member_site/partypositionsummary.aspx.
[4] Party-wise Representation Of Members, Seventeenth Lok Sabha, available at https://loksabha.nic.in/members/PartyWiseStatisticalList.aspx.
[5] PRS Legislative Research, Mechanism of voting and recording of votes in Parliament, December 24, 2010, available at https://www.prsindia.org/theprsblog/mechanism-voting-and-recording-votes-parliament.
[6] PRS Legislative Research, Explained: Why division of votes is key to healthy parliamentary system, June 28, 2019, available at https://www.prsindia.org/media/articles-by-prs-team/explained-why-division-votes-key-healthy-parliamentary-system.
[7] PRS Legislative Research, Parliamentary Procedures- A Primer Rajya Sabha, January 2015, available at https://www.prsindia.org/sites/default/files/parliament_or_policy_pdfs/1425009754_Rajya%20Sabha%20Primer-%20Final.pdf.
[8] PRS Legislative Research, In a rush to pass bills, 17th Lok Sabha is not scrutinising future laws enough, July 18, 2019, available at https://www.prsindia.org/media/articles-by-prs-team/rush-pass-bills-17th-lok-sabha-not-scrutinising-future-laws-enough.
[9] PRS Legislative Research, Recording each vote, Aug 22, 2016, available at https://www.prsindia.org/media/articles-by-prs-team/recording-each-vote-4421.
[10] Ramdas Athawale v. Union of India and Others, (2010) 4 SCC 1; Sanjay Lakhe Patil vs. Haribhau Bagade, 2015 (3) ABR 591.
[11] M.S.M. Sharma vs. Dr. Shree Krishna Sinha and others, AIR 1960 SC 1186; Janardan Reddy v. State of Hyderabad, AIR 1951 SC 217; Raja Ram Pal vs. Hon’ble Speaker, Lok Sabha and Others, (2007) 3 SCC 184.
[12] UOI v. G. Ganayutham, A.I.R. 1997 S.C. 3387.
[13] In re (Special Reference No. 1 of 1964) also known as Keshav Singh case, AIR 1965 SC 745.
[14] (2020) 314 CTR (SC) 58.
[15] Ravi S. Naik and Sanjay Bandekar v. Union of India (UOI) and Ors., AIR 1994 SC 1558.
[16] Surendra Vassant Sirsat of Mapusa, Goa v. Legislative Assembly of State of Goa, 1996 (2) BomCR 362.
[17] Sanjay Lakhe Patil v. Haribhau Bagade, 2015 (3) ABR 591.
[18] Subodh Uniyal and Ors. v. Speaker Legislative Assembly and Ors., MANU/UC/0023/2016.
[19] Subodh Uniyal and Ors. v. Speaker Legislative Assembly and Ors., MANU/UC/0023/2016.
[20] PRS Legislative Research, Explained: Why division of votes is key to healthy parliamentary system, June 28, 2019, available at https://www.prsindia.org/media/articles-by-prs-team/explained-why-division-votes-key-healthy-parliamentary-system.
[21] PRS Legislative Research, Recording each vote, Aug 22, 2016, available at https://www.prsindia.org/media/articles-by-prs-team/recording-each-vote-4421.
[22] Kihoto Hollohan v. Zachillhu and Others, 1992(Supp (2) SCC 651.
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*Nipun Singhvi is an advocate practicing before the Hon’ble Supreme Court and the Hon’ble Gujarat High Court. He is the founder of NSA Legal.
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