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GETTING AHEAD OF CONSTITUTIONAL PRACTICES

Focus: GS-II Governance

Introduction

  • The Rajasthan High Court’s order staying the anti-defection proceedings initiated by the Assembly Speaker against the rebel legislators raises important constitutional issues.
  • A petition challenging the issuance of notices by the Speaker to the rebel MLAs turned into one challenging the constitutionality of Para 2(1)(a) of the Tenth Schedule to the Constitution (anti-defection law).

Rules framed under the Tenth Schedule

  • These rules were first framed by the Lok Sabha Speaker in 1985 and adopted by more or less all the State Legislatures.
  • Rule 6 of the Lok Sabha rules deals with the filing of the petition and the forwarding of the same by the Speaker to the Member concerned and related matters.
  • The rule requires the petitioner, and not the Speaker, to satisfy himself about the reasonableness of the ground for disqualification.
  • Rule 7 says that on receipt of the petition, the Speaker shall consider whether the petition complies with the requirements of Rule 6.
  • If he finds that the petition does not meet all the requirements, he shall dismiss it.
  • If it complies with all the requirements, he shall forward the copy of the petition and the annexure to the concerned Member and require him to submit his comments within seven days of the receipt of the copy of the petition.
  • Only through a proper hearing will the Speaker be able to know whether reasonable grounds exist for disqualification.
  • Staying the Speaker’s action is unprecedented and unheard of at the ‘notice’ stage and it will stymie the operation of the Tenth Schedule because any Member can go to court and obtain a stay and put a stop to the proceedings.

Date of the Assembly session

  • Summoning the Assembly is a routine constitutional function of the Governor.
  • As per the normal procedure, once the Cabinet decides to call the session on a particular date, that decision is conveyed to the Governor who signs the summons order and sends it back the same day or the next day.
  • Under Article 174 of the Constitution, the Governor summons the Assembly, but the Governor can act only on the advice of the Council of Ministers.
  • The Governor, being a constitutional head, does not exercise any of the executive powers except where the Constitution assigns him certain functions to be performed in his discretion.
  • The Nabam Rebia case makes it clear that so long as the Chief Minister enjoys majority support in the Assembly, the Governor has no discretional powers and is bound to accept the decisions of the Cabinet in regard to the date of commencement of the session.
  • In Shamsher Singh v. State of Punjab (1974), the Supreme Court said: “The Governor has no right to refuse to act on the advice of the Council of Ministries. Such a position is antithetical to the concept of ‘responsible government’.”

The 21-day period

  • The Constitution does not provide for any 21-day period between summoning and commencement.
  • In 1960s, the Rules Committee of the Lok Sabha recommended that the gap between the date of summons and of the commencement of the House should be 21 days.
  • This was thought of as necessary as the collection, collation and scrutiny of information relating to Questions, at different levels of bureaucracy, before it was placed in the House, was a time-consuming job.
  • Although Parliament changed it to 15 days later, many State Legislatures continue with the 21-day period. It is not an inflexible rule, and says “unless the Speaker otherwise decides”.

-Source: The Hindu

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