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Parliament and State Legislature

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Parliament

The Parliament is the legislative organ of the Union Government. Part V of the Constitution from Article 79 to Article 122 provides provisions for the Parliament.

Article 79 – The Parliament to consist (President + council of states + House of people).

Composition of Rabha Sabha (Article 80)

  • Authorized strength 250: 238 (States + UT’S) + 12 (Nominated by President)
  • 238 seats to states and UT’S allocation based on 4th Schedule.
    • Elected members of legislative Assembly, Act as Electoral College; Indirect Election, Proportional representation by single transferable vote.
    • Representation from UT’s to council of states; Manner decided by a law of Parliament.
  • 12 Members Nominated by President from areas of Art, Literature, Science and Social Service.
  • Presently only 233 seats are allocated to states and UT’s. States – 229; UT’s – 4
  • RS represents Federal character; Representatives are Elected by MLAs; Not truly federal like USA; No Equal Representation (Rather Proportional representation)
  • Member elected to fill casual vacancy; serve only remainder of the period.

Composition of Lok Sabha (Article 81)

  • Authorized seats – 530 (States) , 20 (UT’S), 2 Anglo Indians (Article 330 – Nomination by President)
  • Direct Election by Universal Adult Franchise (Article 326)
  • Territorial constituency / Single Member constituency
    • First past the post system
    • Uniformity of representation between states and within states.
    • Delimitation Commission; redrawing boundaries (Census 2001; 87th CAA)

Duration of the Houses of Parliament (Article 83)

  • Lok Sabha (Normally 5 years)
  • Unless dissolved Earlier due to:
    • Council of Ministers (CoM) lose Majority
    • CoM’s Advice to Dissolve
    • Or in case of National Emergency; Extended by a period of one year at a time, by law of Parliament, not beyond 6 months after the Proclamation has ceased to operate.
  • Rajya Sabha (Permanent House) No Dissolution.
    • 1/3rd of Members retire every second year (as nearly possible)

Qualifications for the membership of Parliament (Article 84)

  • Citizen of India (Natural Born or Naturalized)
  • Makes an oath before authorized authority decided by election Commission of India.
  • Completed 30 years of age for Rajya Sabha; 25 years for Lok Sabha
  • Other qualification as may be prescribed by Law. (Example: RPA 1951 – Provides for other qualification)

Disqualification of the Members of Parliament (Article 102)

  • Holds any office of profit
  • Unsound Mind; declared by competent court
  • If he is undischarged insolvent
  • Not citizen of India, voluntary Acquired citizenship of another country.
  • If he is disqualified under any Law made by Parliament. Example: Representation of People Act (RPA) , 1951
Office of Profit

  • Not defined in the Constitution.
  • Also a ground for disqualification under RPA,1951 (Not defined in RPA)
  • Supreme Court laid down the test of appointment (Gurugobinda Basu vs Sankari Prasad Ghosal case) to determine an office of profit:
    • whether the government is the appointing authority,
    • whether the government has the power to terminate the appointment,
    • whether the government determines the remuneration,
    • what is the source of remuneration, and
    • the power that comes with the position.
  • Jaya Bachchan Case, 2006 – if the office is capable of yielding profit or pecuniary gain and not whether the person actually obtained a monetary gain.
  • Case of Parliamentary Secretaries (Delhi Legislative Assembly) – Involves conflict of Interest

Minister of union/state government are exempted from being office of profit

Grounds for Disqualification

  • On Conviction of certain corrupt electoral practices.
  • Conviction for certain offences – Example: IPC; Civil Rights Act, 1955, UAPA Act, 1967 etc.
  • Convicted of any offence where imprisonment is not less than 2 years.
  • Dismissed from Government service.
  • Note
    • The provision of the same for MLA and MLC under Article 191.
    • A person disqualified under 10th schedule is not eligible to be a M.P or state Legislator.
    • A question with regard to Disqualification; Decision of President Final (Article 103) for MP; Decision of Governor (Article 192); Member of state Legislature; President and Governor to take the opinion of ECI before making decision.
    • Appeals can be made to high courts.

Vacation of Seats of Member of Parliament (ARTICLE 101)

  • Both Member of Parliament and state Legislature
  • Disqualification due to Defection/other reasons (Article 102)
  • If he resigns by submitting his resignation to presiding officer.
  • Absent for more than 60 Days.
  • Note
    • Similar provision for member of State Legislature (Article 190) –
    • Exception: When a Person is member of two or more state Legislature; doesn’t resign from any; all seats will become vacant.
    • 52nd constitutional amendment has amended Article 101, Article 102 and Article 190 and 191 (Anti Defection Law)

ANTI-DEFECTION LAW (10TH SCHEDULE)

  • 52nd Constitution Amendment act; 10th Schedule was added in the Indian Constitution
  • Disqualification on grounds of:
    • Voluntarily giving up party membership
    • Abstain from voting or acting contrary to directions given by political party
    • Elected members join other political party
    • Nominated members if he joins any political party after expiry of 6 months
  • 91st Constitution Amendment Act-2003 – Earlier, a defection by one-third of the elected members of a political party was considered a ‘merger’. The amendment changed it to at least two-thirds.
  • Disqualification on the ground of Defection does not apply if:
    • 2/3rd merger of parties.
    • Speaker; Deputy Speaker; Deputy Chairman (RS); Speaker and Deputy Speaker (Legislative Assembly) Chairman and Deputy Chairman (Legislature Council)
  • Decision of Speaker and chairman shall be final.
  • All Proceedings are considered to be proceedings UNDER ARTICLE 122 and UNDER ARTICLE 212.

Note: Speaker/Chairman has power to make rules.

PRESIDING OFFICERS

CHAIRMAN and DEPUTY CHAIRMAN OF RAJYA SABHA [ARTICLE 89]

  • Vice President is the ex-officio chairman of Rajya Sabha.
  • Deputy Chairman is elected from among the members of the council
    • May resign anytime by addressing resignation to chairman.
    • Removed by effective majority; 14 days prior notice; [Article 90]
  • Vacancy of Office of Chairman and Deputy Chairman [ARTICLE 91]
    • Chairman office vacant; Deputy Chairman acts as chairman.
    • Deputy chairman also vacant; President May appoint any member of RS
    • During absence of chairman and DC; anyone according to rules of the House or anyone determined by RS may preside.
  • Chairman and Deputy chairman not to Preside while resolution for his removal is under Consideration [Article 92] and[Article 96 – speaker]
  • While resolution for removal is introduced; No Right to preside; Right to be present; Speak and take part in the proceeding without right to vote.

SPEAKER and DEPUTY SPEAKER OF LOK SABHA [ARTICLE 93]

  • Two members to be chosen from house as Speaker and Deputy Speaker (as soon as possible)
  • Deputy Speaker is not subordinate to the Speaker; he is directly responsible to the House.
  • Vacation; Resignation and Removal of Speaker and Deputy Speaker [ARTICLE 94]
    • Shall vacate; if he ceases to be a member of the House
    • Resign at any time [Speaker to DS and DS to Speaker]
    • Removed by a resolution (Effective Majority)
  • When Lok Sabha is dissolved, Speaker does not vacate office and continues till the newly elected Lok Sabha meets.

SPEAKER PRO TEM

  • Speaker of the Last Lok Sabha vacates his office immediately before the first meeting of the newly elected LS meets.
  • Thus, the President appoints a Speaker Pro Tem. (Oath administered by the President)
  • Presides over the House till the House elects a new Speaker.

POWER OF THE PRESIDING OFFICERS

SPEAKER

  • Derives power from 3 sources: Constitution, Rules of Procedure and Conduct of Business of Lok Sabha and Parliamentary Conventions.
  • Complete powers to regulate proceedings of the house [Article 122]
  • Certifying money bills
  • Presiding the Joint sitting [Article 108]
  • Disqualification of members on grounds of defection (10th Schedule).
  • Voting powers in case of Equality of vote.
  • Decides whether a Bill is Money Bill or not.

CHAIRMAN: Similar powers to that of the Speaker in Lok Sabha

  • Exception
    • Unlike the Speaker, the Chairman is not a member of the House
    • No power to certify money bills.
    • No power to preside over the joint sitting.

LEADERS IN PARLIAMENT

  • Leader of the House – PM (if he is a member of that house) or a Member nominated by the PM (if he is not a member of the House)
  • Leader of Opposition – Leader of the largest opposition party having not less than 1/10 of total strength of the House.
    • Given statutory status in 1977.
    • Entitled to allowances and facilities equivalent to a cabinet minister.
  • Whip – Neither mentioned in the constitution not the Rules of House nor the Parliamentary statute.
    • Based on parliamentary convention.

Power and Privileges of MPs [Article 105 and Article 194]

  • Right and immunities enjoyed by members of Parliament collectively and Individual capacity.
  • To maintain Independence and dignity of the Institution and also to carry out their function effectively.
    • Right to freedom of speech
    • Publication of the preceding
  • Regulated by a law of parliament; until; similar to that at the commencement of the constitution.
  • Such privileges to other dignitaries as well. Eg. Attorney and Advocate General
  • Parliamentary privileges Analysis (Present system)
  • Positives –
    • Codification would lead to judicial delay and Evolution of New Privileges.
  • Negatives –
    • Against Idea of limited powers.
    • Parliamentary sovereignty
    • Against F.R of Individuals.
  • Note: N Venkatachaliah committee recommended codification of Parliamentary Privileges.

TYPES OF BILLS

  • Ordinary bills (Article 107 and Article 108)
  • Money Bills (Article 110)
  • Financial bills (Article 117)
  • Constitution Amendment Bills (Article 368)

MONEY BILL [ARTICLE 110]

  1. Taxation matters
  2. Borrowing clauses
  3. Custody of Consolidated Fund and Contingency Fund of India and withdrawal of money.
  4. Appropriation of money from Consolidated Fund of India.
  5. Declaring expenditure charged on the CFI.
  6. Receipt of money on account of CFI and Public Accounts of India.

Note: Imposition; Abolition or regulation of tax of any local authority is not a money bill.

  • Decision of speaker final; speaker shall certify money bill.

PROCEDURE IN RESPECT OF MONEY BILL ARTICLE 109

  • Introduced only in Lok Sabha.
  • Transmitted to Council of States after passed by Lok Sabha; 14 days maximum; Return the Bill back to LS with or without recommendation for amendments.
  • House of People can accept or reject such recommendations.
  • Note – Such a Bill containing only provision under Art 110 can be introduced only with the prior approval of the President (Article 117).
  • PRESIDENT OPTION [ARTICLE 111]
    • Give his assent
    • Withhold the Assent

FINANCIAL BILLS [ARTICLE 117)

FINANCIAL BILL TYPE I [ARTICLE 117 (1)]

  • Procedure (Similarity with money Bill)
  • Can be introduced only in Lok Sabha
  • Prior approval of the President
  • In all other respects it’s Similar to that of an ordinary Bill.
  • PRESIDENT:
    • Approve (assent)
    • Withhold
    • Send it for reconsideration.

FINANCE BILL TYPE II [ART 117(3)]

  • Procedure similar to that of ordinary Bill except, that the President may recommend for its consideration.
  • President Power [Article 111]
    • Assent
    • Withhold
    • Send it for Reconsideration.

CONSTITUTION AMENDMENT BILL [ART 368]

  • Introduced in any House; By anyone (minister /Private member)
  • Passed in Both Houses separately by Special Majority.
  • Amends any Federal Provision-Shall be ratified by at least half of the state Legislatures.
  • Mandatory for the President to give his assent (24th Constitutional amendment act)
  • Constitutional amendment act not within the ambit of Article 13.
  • No provision of Joint sittings in case of deadlock.

ORDINARY BILLS (ARTICLE 107)

  • Introduced in either house by any member.
  • Has to be passed by simple majority in Both the Houses.
  • Rajya Sabha has Equal powers.
    • Accept the Bill
    • Reject the Bill
    • Pass with Amendments
    • No action for 6 months
  • In case of rejection by RS or in case of amendments by RS, where the LS does not accept to such amendment – Dead Lock
    • Joint sitting can be convened by President to avoid Dead Lock (Article 108)

JOINT SITTING (ARTICLE 108)

  • Convened by the President; only on those matters where there is Disagreement;
  • Simple majority.
  • Presided over by Speaker.
  • Rules made by President in consultation with Chairman and Speaker.

ANNUAL FINANCIAL STATEMENT (ARTICLE 112)

  • President by such report in front of both houses of Parliament; Every Financial year;
  • Statement in form of estimated receipts and Expenditure.
  • Expenditure (Charged and made form CFI) Separately.
  • Expenditure Charged
    • Emoluments of President and his office
    • Salaries and allowances – Chairman; Deputy Chairman; Speaker and Deputy Speaker
    • Debt Charges of the Government
    • Salaries allowances and pensions – Judges of Supreme Court.
    • Pensions in case of Judges of High Court.
    • Salary allowances and pension of CAG.
    • Sums required to satisfy a Judgment; Decree of any award of any Court
    • Any other Expenditure declared by law of Parliament (or) Constitution.
  • Passing of Finance Bill: Finance bill has to be passed within 75 days.

Parliamentary Procedure on Estimates (Article 113)

  • Expenditure charged on Consolidated Fund of India (CFI) not to be voted; Discussion can happen in either house of Parliament.
  • Expenditure made from CFI shall be submitted in the form of demand for grants; House of people;
    • Can Assent
    • Refuse to Assent
    • Assent to any demand subject to reduction of amount.
  • Demand for grant shall be made only on the recommendation of the President.

Appropriation Bill (Article 114)

  • No money can be withdrawn form CFI except for an appropriation Bill Passed.
  • i) Expenditure Made ii) Expenditure Charged

SUPPLEMENTARY; ADDITIONAL OR EXCESS GRANTS (ARTICLE 115)

  • Supplementary grant – money granted found to be insufficient for a particular service.
  • Additional Grant – Additional Expenditure on some new service not contemplated in the annual financial statement of the year.
  • Excess grant – Money spent on any service during a financial year in excess of the amount granted for that Service.

VOTES ON ACCOUNT; VOTES OF CREDIT and EXCEPTIONAL GRANT [ARTICLE 116]

  • Votes on Account – To make advance grant in respect of Estimated Expenditure; Before Completion of Article 113 and Article 114 Procedure
    • During the election year a vote on an account may exceed from 2-4 months expenditure.
  • Votes of Credit – Granted for meeting an unexpected demand upon the resources of India; Nature of demand and Magnitude is indefinite in character.
  • Exceptional Grant – To make an Exceptional grant which forms No part of current Service of any financial year.
  • Introduction and voting on Demands for Grants is confined only to the Lok Sabha.
  • The Lok Sabha has the power to assent, refuse to assent and even to reduce the amount of the Demand for Grant.
  • In Rajya Sabha, there is only general discussion of the budget. The upper house does not vote on the Demands for Grants.

CUT MOTIONS

Cut motions are motions for reduction in various demand for grants. Cut motions seek a reduction of an amount of demands of grants on the following grounds: economy, policy cut and token cut.

Categories of Cut motions

  • Economy cut motion – demands reduction of a specified amount from the demand for Grant representing the welfare of the economy.
  • Policy cut motion – demand for a grant is reduced to Re.1 representing the disapproval of the policy underlying the demand. A member giving such notice should indicate precise terms, the particulars of the policy which he proposes to discuss. It is open to the member to advocate alternative policy.
  • Token cut motion – used to voice a grievance. In token cut, the amount of the Demand for Grant is reduced by Rs.100 in order to express a specific grievance.

CONSOLIDATED FUNDS and PUBLIC ACCOUNTS OF INDIA and OF THE STATES [ARTICLE 266]

  • Article 266(1) provides for Consolidated Fund of the union and states.
  • Article 266(2) Public Accounts of India and states.
  • No Money from Consolidated Fund of India or State shall be appropriated except in accordance with Law.

CONTINGENCY FUND OF INDIA [ARTICLE 267]

  • Parliament may by Law establish Contingency Fund of India; Such sum as determined by law
  • Funds are taken out to meet unforeseen Expenditure.
  • Expenditure at the disposal of President.
  • Money can be taken out pending Authorization of the Legislature.
  • Note: It also provides for Contingency Fund of the state [Art .267(2) ]

RULES OF PROCEDURE [ARTICLE 118]

  • Each House of Parliament may make rules to regulate its own Procedure
  • Until rules are framed; rules with respect to Legislature of Dominion of India Shall be followed; Subject to Modification made by the Presiding officers
  • President may make rules with regards to Joint sitting proceedings; Consultation with the presiding officers.
  • Speaker to Preside Joint Sitting (In his absence by someone as determined by the rules).

LANGUAGE TO BE USED IN PARLIAMENT [ARTICLE 120]

  • Business to be transacted in Hindi or English
  • The Presiding officer can allow member to express in Mother tongue
  • Note: All Acts; Bills and orders, bye- Laws, etc…of the Parliament and state Legislature shall be in English language. [Article 348]

RESTRICTION ON DISCUSS IN PARLIAMENT WITH REGARD TO CONDUCT OF JUDGES [ARTICLE 121]

  • Except for a removal motion of the judges.
  • Courts cannot inquire into the proceedings of the Parliament [Article 122]

COMPARISON BETWEEN LOK SABHA and RAJYA SABHA

  • Equal Status
    • Selection and appointment of Ministers
    • Election and Impeachment of the President
    • Passage of ordinary Bills
    • Passage of constitutional amendment bill.
    • Approval of ordinances
    • Approval of emergencies of all three types (Resolution for discontinuance of national emergency can only be passed by LS)
  • Unequal Status
    • Money Bills (Introduction; Passage; Speaker power to certify)
    • CoM’s responsibility only to House of people
    • RS can only discuss the Budget but cannot vote on it
    • Numerical Minority in case of Joint sitting
    • Cannot remove the CoM by by passing a No-confidence motion.

SPECIAL POWERS OF RAJYA SABHA

  • Article 249 – Parliament to Legislate on state list; Provided RS passes resolution to that Effect by special Majority (Special Majority – 2/3rd of it’s members present and voting )
  • Article 312 – Power of Parliament to create new All India Service; Provided Rajya Sabha passes a resolution; Special Majority (2/3rd Members Present and voting)

PARLIAMENTARY CONTROL

  1. Question Hour
  • Starred Question
    • Members of Parliaments asks oral question to Minister in Charge
    • Two supplementary question can follow
  • Unstarred Question
    • Written question and written Answer.
    • No supplementary question.
  • Short Notice question
    • Question on matter of urgent public Importance
    • Asked by giving less than 10 days’ notice.
    • Oral question and Answer; supplementary question can follow.
  1. Motions
  • No confidence motion (Rule 198 LS)
    • Introduced only in Lok Sabha
    • Supported by at least 50 members
    • Debate
    • Not able to prove Majority Government has to resign (Simple Majority )
    • Motions of Thanks (Article 87 President Address)
  • Motion of Thanks – After the President Address
    • Beginning of year and Beginning session after general Election.
  • Censure Motion
    • Motion to censure the govt. for its policies and Action.
    • Against government/A Particular Minister
    • No need to resign.
  • Privilege Motion
    • Moved against a MP for misguiding the other members of the House.
  • Adjournment Motion
    • Draw the attention of the government on urgent matter.
    • Notice given on same day.
    • Censure of the govt. if the motion is passed.
    • Support of 50 members
    • Adjourned after the Discussion.
  • Calling Attention Motion
    • MPs call the attention of a minister on urgent public importance.
    • Seeks authoritative statement from him.

COMMITTEES OF PARLIAMENT

FINANCIAL COMMITTEE

a) Public accounts committee

b) Estimates committee

c) Committee on public undertakings

PUBLIC ACCOUNTS COMMITTEE

  • 22 members (15 (LS) + 7 (RS))
  • Term (1 year); No membership of minister ;Chairman appointed by Speaker; Chairman from opposition (Convention)
  • Functions
    • Audits the appropriation and Revenue Account of the CAG.

ESTIMATES COMMITTEE

  • 30 Members (Lok Sabha)
  • Members elected by Proportional representation; Term (1 year); No Membership of minister; Chairman appointed by Speaker.
  • Function
    • Scrutinizes the Estimates Presented in the Budget.

COMMITTEE ON PUBLIC UNDERTAKING

  • 22 members (15+7)
  • Functions
    • Scrutinize CAG report on public undertakings.

DEPARTMENTALLY RELATED STANDING COMMITTEES (DRSC’S)

  • 24 Committees – 16 Lok Sabha+ 8 Rajya Sabha (21 LS + 10 RS – members)

DRSC in LS – Agriculture, Chemical and Fertilizers, Coal and Steel, Defense, Energy, External Affairs, Finance,  Food, Consumer Affairs and Public Distribution, Information Technology, Labor, Petroleum and Naturel Gas, Railways, Rural Development, Social Justice and empowerment, Urban Development. Water Resources

DRSC in RS – Commerce, Health and family welfare, Home affair, Human resource development, Industry, Personnel, public grievance, law and justice, Science and technology, Environment, Forest and climate change, Transport, tourism and culture

Functions

  • Examine the bills referred to them
  • Examine the implementation of various policies
  • Examine budgeting outlays for department

AD HOC COMMITTEES

  • Temporary in nature
  • Dissolved after their purpose is served. Example – Joint Parlaimentary Committee, select committee etc.

ADMINISTRATIVE COMMITTEES/ STANDING COMMITTEE (OTHERS)

  • Business advisory committee – Help the presiding officer in the planning of the business of the house.
  • Committee on government assurance – make govt. accountable on any assurance given in the house of the parliament
  • Committee on subordinate legislations – ensure executive accountable on various subordinate legislations.
  • Privilege committee – any question/ motion of privilege are generally referred to the committee
  • Rules committee – Frames the rules of the house; procedure and conduct of the house
  • Ethics committee – oversees moral and ethical conduct of member; prepare code of conduct for member; look into cases of alleged breach of code of conduct.
  • General purpose committee – to look into and advice on those matters referred to it by the presiding officer from time to time.

 

STATE LEGISLATURE

CONSTITUTION OF LEGISLATURE OF THE STATES (ARTICLE 168)

  • Governor
  • Legislature Assembly
  • Legislative council (Only in certain States)

ABOLITION OR CREATION OF LEGISLATIVE COUNCIL (ARTICLE 169)

  • Parliament may by a law determine; Provided State Legislative Assembly of the state passes a resolution to that effect; Special Majority.
  • Not to be considered a Constitutional Amendment Act under Article 368.

COMPOSITION OF LEGISLATIVE ASSEMBLY (ARTICLE 170)

  • Not >500; <60 Members; Direct Election from territorial Constituencies.
  • 1971 census – Number of seats in Legislative Assembly.
  • 2001 census – Adjustment of territorial constituencies.

 COMPOSITION OF LEGISLATIVE COUNCIL (ARTICLE 171)

  • Not more then 1/3rd of Member of Legislative Assembly and not less than 40.
  • Composition (Under Parliament otherwise Provides)
  • Electoral College –
    • 1/3rd Electorates Comprising member of municipalities, District boards and other Local Authorities (Parliament may by law specify)
    • 1/3rd Elected by members of Legislative Assembly.
    • 1/12th by Electorates consisting of graduates (3 years in possession of degree)
    • 1/12th of electorates consisting of teachers not less than Secondary level
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