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Mainstream, VOL LVIII No 41, New Delhi, September 26, 2020

Passage of Farm Bills in Rajya Sabha Without Following Procedure Violates Constitution, Rules and Culture of Legislative Scrutiny | S N Sahu

Friday 25 September 2020

by S N Sahu *

On 20th September 2020 the Deputy Chairman of the Rajya Sabha Shri Harivansh did not pay heed to the demand of opposition Members of the House for division and voting on Farm Bills- 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- to determine if those Bills had majority support for its lawful passage in the House. Instead he declared that those Bills were passed by voice vote. Such willful action on his part was in violation of the Constitution, rules of procedure and conduct of business of the Council of States and the time hounded convention of the Parliament. In deep anguish one can say that the acts of omission and commission on the part of Deputy Chairman with regards to the passage of those Bills were simply outrageous.

Constitution Provides for Voting for Passage of Bills 

Those opposition Members who demanded that voting should take place in the House to decide the fate of those Bills were exercising their right guaranteed by Article 100(1) of the Constitution and Rule 252 of the Rules of Procedure. The Article 100(1) provides that all questions at any sitting of either House of Parliament or joint sitting of both the Houses of the Parliament shall be determined by a majority of votes of the members present and voting. This article mandates that the majority votes in the House would determine the fate of the Bill. It means that majority can only be determined by actual voting. So there is no other option but actual voting to decide if the requisite Members have supported it for its passage by following constitutionally prescribed method. The Constitution does not mention voice vote. Only Rule 252 of the Rules of Procedure prescribes for voice vote and also categorically provides that when a member demands division after the Chair declares the outcome of the voice vote, the chair has to allow it and conduct voting.

Opposition Members Demanded Division on Farm Bills 

The aforementioned Bills were purportedly treated as passed without being actually voted upon as prescribed by Article 100(1) of the Constitution and without accepting the opposition demand for division in accordance with Rule 252 of Rules of Procedure and Conduct of Business of Rajya Sabha

Division asked for by some Members of the House was denied by Deputy Chairman of Rajya Sabha in violation of the Constitution, law and Rules of Procedure.

Constitution cannot be dispensed with because of disturbance in the House

The Chairman of Rajya Sabha on 21st September while presiding over the House informed that the Deputy Chairman on 20th September 2020 told eight opposition Members, not once but 13 times, that he would allow division and voting only after they went back to their respective seats from the well of the House. However, the Chairman added that none of the Members went to occupy their seats for enabling Deputy Chairman to put those Bills to vote of the Council. In saying so did the Chairman mean that the Deputy Chairman declared that the Bills were deemed to have been passed by voice vote because eight Members of opposition benches caused disturbance in the well of the House and refused to go back to their respective seats? If that was so then what about those Members who were there in their respective seats and asking the Deputy Chairman in a high decibel voice for division and voting. Honourable Member Shri Tiruchi Siva was repeatedly pleading for division from his allotted seat in the House.

If the logic of the Chairman that due to disturbances by eight Members of opposition bench the Deputy Chairman declared that Bills were passed by voice vote, then it meant that the Deputy Chairman while dealing the Bills was actuated more by disturbances by a few Members than by the Article 100(1) of the Constitution providing for voting in the House to deal with the Bills. The Chairman of the Rajya Sabha must be mindful that Constitution cannot be dispensed with because of the disturbances in the House and Deputy Chairman cannot take the plea that because of pandemonium caused by some Members the constitutional provision of passage of Bills based on voting could not be followed. Therefore, the crucial point is that the passage of the farm Bills in the Rajya Sabha by voice vote without Deputy Chairman conceding to the demand of the Members for subjecting those Bills to division/voting is an egregious violation of the Constitution and rules of procedure.

Motions and Statutory Resolutions were passed without following procedure 

Several opposition members alleged that neither Motions and statutory resolutions including amendments to the Farm Bills moved by them were not even looked at by the Deputy Chairman much less considered while declaring the passage of those Bills by voice vote. If the allegations are found to be correct then the act of the Deputy Chairman in this regard constitutes an act of omission and is a major factor in attributing illegalities to the passage of Bills in the Council of States without following prescribed procedure. Such procedural irregularities and willful negation of the Constitution and principles of law making process constitute subversion of parliamentary democracy. And none other than the Deputy Chairman would be held accountable for such infractions and no justifications and defence in this regard from the so called high and mighty can hold good.

Violation of Parliamentary Convention 

The illegalities associated with the passage of the Farm Bills is also attributed to the violation of the convention of the Parliament according to which no business of the House is taken up once the scheduled time limit fixed for the sitting of the House is over. When the passage of the Bills were taken up by the Deputy Chairman on 20th September the House had exceeded the time fixed for sitting of the day. As per the parliamentary convention the Deputy Chairman should have taken the sense of the House for extension of the sitting for the day or the matter could have been taken up next day. The Leader of the Opposition Shri Azad urged the Deputy Chairman to follow the Convention and take the sense of the House for this purpose. He also said that extension of the sitting of the House is not done by the Chair. It was also said by Shri Ananda Shrma, a Member of the House that consensus cannot be determined by majority principle. But the Minister for Parliamentary Affairs stated that the time of sitting of the House should be extended till the disposal of the Farm Bills. Then the Deputy Chairman said that there is consensus for it. However, Deputy Chairman did not go by what the Leader of Opposition said. There was din in the House and in such situations the Chair normally should not have been taken up the Bills till order was restored. The Deputy Chairman however went ahead for the passage of the Bills by voice vote and without granting division in contravention of the provisions of the Constitution and rules and procedure .

NDA Government Imposed President’s Rule in Uttarakhand because its Assembly Passed Appropriation Bill by Voice Vote

The Government of India through the statements of Union Agriculture Minister and other Ministers defended the passage of the Bills on the basis of voice vote by willfully disregarding the Constitution, rules of procedure and parliamentary convention. It is ironic that the same Government of India under the leadership of Prime Minister Shri Modi had imposed President’s  rule under Article 356 of the Constitution in Uttarakhand by dismissing Congress Government led by Chief Minister Shri Harish Rawat in 2016, among other grounds, that the then Speaker of the Uttarakhand Assembly did not allow division or physical voting while dealing with the passage of the Appropriation Bill and allowed its passage by voice vote. It is strange that the NDA regime supported illegal passage of Farm bills by voice vote in the Rajya Sabha and disapproved the passage of Appropriation Bill in the Assembly of Uttarakhand in 2017 by the same voice vote method and, therefore, imposed President’s rule there. It clearly brings out their crash opportunism double standards. It may be mentioned that Appropriation Bill is always passed by voice vote after the legislature votes the grants. So there was nothing illegal about the passage of the Appropriation Bill by voice vote by Uttarakhand Assembly and yet NDA regime cited it as a ground to invoke Article 356 to impose President’s rule in that State. Both the Uttarakhand High Court and the Supreme Court declared the imposition of President’s Rule as null and void.

Decline of Scrutiny of Bills Since 2014

There is a larger context against which the passage of Farm Bills in such a hurry constitutes a huge problem. The law making process is a deliberative and consultative process. Therefore, the Bills which are called legislative proposals, are not only subjected to through deliberation and consultation in both the Houses of Parliament but also are referred to the Committees of Parliament where, as per parliamentary practice and convention, each provision of such Bills is examined without any partisan consideration. Not only all the aforementioned Farm bills were not referred to the appropriate Department Related Parliamentary Standing Committee at the time of its introduction, the requests of some opposition parties of Rajya Sabha including the Biju Janata Dal to refer the Bills to the Select Committee of the House were not put to vote in the House by the Deputy Chairman. The Rajya Sabha as a second Chamber is also a revisory Chamber. The legislations passed by the Lok Sabha should be subjected to deeper scrutiny in the revisory Chamber for streamlining them. Therefore, demand for reference by opposition Members that the Farm Bills should be referred to a Select Committee of the House embodies the idea of revision of those Bills passed by the Lok Sabha after due scrutiny.

After the NDA Government assumed office in 2014 the convention of referring the Bills to appropriate Department Related Parliamentary Standing Committees was gradually diluted and now it is not followed at all. The obstinacy of NDA regime manifested in its stand against opposition initiative to refer the Farm Bills and several other Bills to Select Committee of the House clearly brought out its rigid stand against bipartisan legislative scrutiny of Bills. It is said that good scrutiny leads to good governance. The public policies embodied in numerous Bills including the Farm Bills deserve to be deliberated and discussed in parliamentary committees which have a rich legacy of examining Bills and functioning of the Government without their Members toeing party or ideological lines. Besides, when Bills are examined in Committees opinion of at least major stake holders are factored in while preparing reports and inputs from the larger public sphere are taken into account while formulating recommendations of such Committees. In denying examination and scrutiny of Farm Bills in the Select Committee of Rajya Sabha, as suggested by some of the opposition parties of the House, an invaluable opportunity was lost for fine tuning these public policies which have serious implications for farmers for disposing of their produce and earning their livelihood, dignity and self esteem.

Gandhi’s Champaran Satyagraha of 1917 and Protection of Farmers 

When the country is celebrating 150th birth anniversary of Mahatma Gandhi let us learn lessons from his historic Champaran Satyagraha, the first Satyagraha launched by him in India in 1917, for protecting farmers from exploitation of British planters who forced them to cultivate Indigo in good portions of their fertile land. It is instructive to note that the epoch making Champaran Satyagraha began with breaking of law by Gandhi. He took it forward through his deliberation, consultation and dialogue with all stakeholders- exploited farmers, British planters, common people, colonial bureaucracy and police. And it ended with framing of law by the British Government, in response to the core objective of Satyagraha, when the British Government framed the Champaran Agrarian Bill 1918 to put an end to centuries old forcible plantation of indigo by British planters in the land of helpless farmers. When the Bill was introduced in the Bihar - Odisha Legislative Assembly, some Members demanded that it should be referred to a Select Committee of the House for scrutiny and examination. The British Government conceded the demand and apart from getting it examined by Select Committee sent a copy to Mahatma Gandhi for his scrutiny. It is illuminating to learn that the scope of Champaran Satyagraha beginning with breaking of law and culminating in framing of law based on public reasoning and engagement with all stake holders through deliberation and consultation assumes enormous significance when Farm Bills were deliberately kept away from scrutiny of parliamentary committees and those were declared by Deputy Chairman of Rajya Sabha as passed by the House by voice vote in complete and calculated violation of the Constitution, rules of procedure and parliamentary Convention.

Money Bill Route Restricts Scope of Rajya Sabha to Examine Bills 

It is indeed tragic that deliberation and consultation, the foundational principles of law making process, is being dispensed with by the NDA regime when it employs its crude majority in the Lok Sabha to pass Bills, cobbles up a majority in the Rajya Sabha to enlist adequate support of their passage without submitting them to bipartisan scrutiny and examination in the Department Related Parliamentary Standing Committees or Select Committees of the House. It often takes the Money Bill route and as a result  the role of the Rajya Sabha to deal with money Bills get restricted in accordance with constitutional provisions.

Legislative Majority Needs to be Tempered by Prudence 

Mobilisation of public opinion in favour of a Bill or legislative proposal is a fundamental prerequisite for its effective implementation after it is enacted. Passing of a Bill and getting it enacted in face of opposition of people to it would lead to widespread disaffection against it. Passage of bills by a Government just because it has majority in the Parliament would mean framing of law by sheer application of crude legislative strength not tempered by prudence and values associated with moderation, accommodation and understanding.

On 13th December 1946 the Constituent Assembly took up the Objectives Resolution for discussion. There were two important groups missing in the Assembly. A debate ensued on whether to move the amendments or stall Constitution-making in their absence. Dr. Ambedkar very thoughtfully said,

«It may be that you have the right to do so. The question I am asking is this. Is it prudent for you to do so? Is it wise for you to do so? Power is one thing; wisdom is quite a different thing and I want this House to consider this matter from the point of view, not of what authority is vested in this Constituent Assembly, I want this House to consider the matter from another point of view, namely, whether it would be wise, whether it would be statesmanlike, whether it would be prudent to do so at this stage

The NDA Government has taken credit for passage of Farm Bills in the Rajya Sabha through voice vote. It has been done without adequate scrutiny and consultation with stakeholders and in violation of the Constitution, rules of procedure and convention of the Parliament. By no stretch of imagination passage of the Bills in violation of the Constitution can be called «wise», "prudent" or "statesmanlike."

* (The author was OSD and Press Secretary to President of India late Shri K R Narayanan, had a tenure in PMO as Director and served Rajya Sabha Secretariat as Joint Secretary )

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