Precisely why the actions in Rajya Sabha lacked presumptive legitimacy

The passage of two of the three farm bills (now Acts) last month, find no legal basis in the framework of rules and conventions accepted by the Rajya Sabha. Such a departure is not only unusual, but also unprecedented.

 

The mode of passage of two bills, namely the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020, and the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Bill, 2020 in the Rajya Sabha on 20th September, 2020, was unusual. The concerned opposition members contended that division, a means of voting, was mandatory as per the rules. The Deputy Chairman Harivansh N. Singh presiding over the session (by virtue of Art. 91[2], the Constitution of India) rebuts this by stating that a division should be sought from the seat. He stated: “…that as per rules and practice, in order to have a division, two things are essential. Firstly (sic) there should be a demand for division and equally important that there should be order in the house”.1 Moreover, he contended that approaching the Chair to make such a demand is also impermissible. On this basis, Mr. Singh claims that he was entitled to disregard the challenge to the ‘result’ of voice votes. However, his position is wholly untenable in view of the rule books.

This is not to say that the presiding officer lacks discretion to overrule a demand of division. Voting in legislative bodies occurs by framing a motion moved by a member in the form of a close ended question. Voting by voice is the compulsory first mechanism for deciding this. It requires members to orally indicate their position. The question is asked twice. The speaker gauges the strength of numbers aurally, each round (Rule 252, Rajya Sabha Rules read with RS Practice and Procedure-[Abstract Series]). 2 3Voting by division, on the other hand, occurs when both a categorical counting of votes and registering those voters on record, takes place. Upon the first challenge to the results of a voice vote, however, the rules mandate the Presiding Officer to simply take a categorical headcount of voters on either side of the fence, without recording their names [Rule 252(3)]. This process precedes division and follows the first round of voice-votes. Speaker doesn’t have discretion to do away with the categorical headcount rule. Only on this headcount taking place can then the demand of division be disregarded by him [Rule 252(4)(b)]. In this case, the headcount did not take place, mandating a division when the challenge was raised the second time. The state of the order in the house does not appear to be a pre-condition anywhere in the said rule. If anything, voting by division in a din is an argument in favour of and not against it.

But the more fundamental contention raised by Mr. Singh is that the demand of division was made by members out of their respective seats. The contention is factually suspect since C.P.I(M) M.P. K.K. Ragesh has claimed to have sought division from his seat.4 Or that the Speaker interpreted members leaving their seats to approach him to be ‘disorder’ by default. But even assuming either to be true for a moment, the irregularity would still stand. One of the accepted means to secure a turn to speak is to ‘catch the eye of the Speaker’. 5 6 As the name suggests, the convention permits the members to stand in their place and seek permission to speak on a motion. This is to be read with past precedents in the House which allowed variations in its application. In its compilation, ‘Rulings and Observations’, the House cites a permissible deviation when a member was permitted to speak on a Reporter’s functional microphone in the Well of the House.7 8 Notably, the microphones of the members were turned off at the relevant time on the day the bills in question were passed.9 In order to raise a challenge to the voice vote, amidst a rally of voices, it is reasonable to assume that a member would be free to approach the Chair in such a case.

In this light, the Deputy Chairman could have disregarded the challenge only if the pertinent rule was suspended. The rule of suspension in the Rajya Sabha Rules (Rule 267), like most of the others in the book, has an equivalent in the Lok Sabha Rules (Rule 388).10 In his book Memoirs of a Parliamentarian, former Lok Sabha Speaker, Late Somnath Chatterjee has stated the invocation of this rule to be an extremity. Suspension of rules happened in circumstances like those existed in 1962 and 1971, where the Question Hours to ministers were put to a pause.11 The third instance was on 21st July, 1975 when most of the Lok Sabha Rule book was successfully suspended by a motion of the Government (but that too not without division).12 Since then, the Speakers have been mostly uncompromising in their stand to oppose any rule suspension. (For instance, see 13, 14, 15, and 16.  Also see the exceptions in 17 ) To sum up: barring its specific and approved suspension by way of a motion under Rule 267, no rule can be otherwise disregarded. Secondly, taking away the applicability of a rule is subjected to a very high standard in both the Houses, demonstrated by the cases of Rule 267. With this subtext, inferred grounds such as raising the challenge from allocated benches do not seem to be the appropriate standard for refusing compliance with Rule 252(3).

Please note that in adherence with the separation of powers principle, procedural concerns of a legislative body are held to be outside the Indian judiciary’s domain. Indian courts have rejected what is known as the ‘exclusive cognizance’ doctrine,17 which regards the formative stage of a legislation to be a judicial pariah.18 Instead, if an issue brought to the Court’s notice relates to a Constitutional injunction, the Court will intervene. For instance, selection/floor test of a government from a directly elected House 19, or deliberation of an enactment outside its purview 20. The issue we are concerned with does not fall in this category. Issues as regards voting generally come under the domain of Parliamentary privileges. This essentially means that the circumstances surrounding a Member’s exercise of her vote in the House, or its impact, are not questionable outside the same. Matters related to a Members’ right to vote per se, then, cannot be subjected to judicial review 21. However, the act of opposing Bills and their deliberation still need to withstand the test of democratic propriety. In Erskine May’s Treatise on the Law, privileges, proceedings and usage of Parliament, voice voting without any form of division is condemned as an irregularity in procedure (even though permitted by the rules). 22 This may not be specified in the Rajya Sabha Rules, but, i) upon a challenge to voice votes, and ii) in an evident state of disorder in the House, this principle should hold a priori. Interestingly, a common law exception to the principle of ‘exclusive cognizance’ exists in the Australian Constitution. Rajya Sabha’s Australian counterpart, the Senate, does not get to tinker with its rules on majority voting on legislative deliberations, as stipulated by Section 23 of its Constitution. 23 The implication being, Courts of law get some latitude in matters relating to the voting rights of the Senate Members. This preferential treatment of the chamber with indirectly elected representatives was brought to preserve the ‘geographically distributed majority underlying the composition of the Senate’. 24

The members of deliberative bodies have been given a wider right to speech and expression since the House cannot function effectively without their unimpeded services. The right to challenge the means of deliberation is its concomitant. The benefit of doubt in interpreting such a rule, therefore, should be given to the party demanding higher scrutiny of the business before the House.


ABOUT THE AUTHOR

Yash S. Sinha

Schengen

Yash graduated from N.L.S.I.U, Bengaluru in the year 2019 and has been assisting an advocate based out of Delhi since then. Presently working all the tiers in both Constitutional and a few statutory Courts there, he intends to settle his practise in Election, Taxation, Economic offences, and Constitutional laws at the Appellate/Original side levels. Views/opinions regarding his write up can be shared here.

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