Thursday, April 26, 2012

THE TWO HOUSES OF THE PARLIAMENT - POWERS AND RELATIONSHIP


THE TWO HOUSES OF THE PARLIAMENT - POWERS AND RELATIONSHIP


                                By K P C Rao.,
 LLB.,  FICWA., FCS
Practicing Company Secretary
kpcrao.india@gmail.com

“The dialogue between the two (Houses), besides improving legislation itself, helps educate public opinion by calling the attention of the public to the diverse viewpoints on the subject matter of the legislation. Sufficient opportunity is provided for the articulation of all possible objections to a Bill, for reconsideration of its terms to be better understood by the Government and the popular House. Legislation in bicameralism is thus likely to be a product of fuller thought”.
-Shri B.D. Jatti

Composition of Parliament

Parliament of India consists of three organs. The President, the Council of States (the Rajya Sabha),  and the House of the People (the Lok Sabha). Though the President is not a member of either House of Parliament yet like the British Crown, he is an integral part of the Parliament and perform certain functions relating to its proceedings.  The President of America is not an integral part of the Legislature. In India, the President summons the two houses of Parliament, dissolves the House of People and gives an assent of  Bills.

It is to be noted that though the Indian Constitution   provides for the parliamentary form of Government but unlike Britain, the Parliament is not supreme under the Indian Constitution. In India, the Constitution is supreme. In England, laws passed by the Parliament cannot be declared unconstitutional while the Indian Constitution expressly vests this power in the Courts.  The Indian Parliament is the creature of the Constitution and derives all its powers from the constitution.  It is not a sovereign body.

But for a few exceptions, both Houses of Parliament enjoy similar powers and status under the Constitution. In certain spheres, however, each House has been given some special powers which are not available to the other. Distribution of such powers is based mainly on the nature and composition of the House.

Predominance of Parliament in Legislative Field

No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person, shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
-Article 105(2)

The scheme of distribution of subject-matters  of  laws  between  the  Centre and   the    States, followed in the Constitution  emphasizes in many ways the general predominance  of  Parliament  in  the legislative field. While a State Legislature can make laws only for the whole or any part of the State territory, Parliament   has power to legislate   for   the   whole or any part of the territory of India.

The Seventh Schedule to the Constitution contains an elaborate enumeration of subjects distributed among three Lists defining legislative relations between Parliament and the State Legislatures. While Parliament has exclusive power to make laws with respect to the subjects included in the Union List, Legislature of the State has exclusive power to make laws (for such State) with respect to the matters enumerated in the State List. On matters included in the Concurrent List, both Parliament and State Legislatures can make laws. Further, Parliament enjoys exclusive power to make laws on subjects not mentioned in any of these three Lists.

Apart from the wide range of subjects allotted to Parliament and the State Legislatures in the Seventh Schedule to the Constitution, even in normal times Parliament can, under certain circumstances, assume legislative power over a subject falling within the sphere exclusively reserved for the States. If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament, the law made by Parliament, whether passed before or after the law made by the Legislature of the State, prevails and the law made by the Legislature of the State to the extent of repugnancy becomes inoperative.




The Rajya Sabha

The Rajya Sabha or the Council of the State is the Upper House of the Union Parliament.  The maximum membership of the Rajya Sabha is fixed at 250 of whom 12 shall be nominated by the President and the remainder i.e 238 shall be representative of States  and the Union Territories  [Art 80 (1)]

The representatives of States are elected by the members of the Legislative Assemblies in accordance with the system of proportional representation by means of the single transferable vote. The representatives from the Union Territories are chosen in such a manner a Parliament may by law determine.  The allocation of seats to each State or Union Territory and numbers of seats allocated to each in the Rajya Sabha are specified in the Fourth Schedule. The 12 nominated persons are chosen by the President from amongst the persons having special knowledge or practical experience in Literature, Science, Art and Social Service (Art 80 (3).  The nominated members do not participate in the election of the President of India.

Special Powers of Rajya Sabha

Rajya Sabha which represents the States enjoys certain special powers under the Constitution. Article 249 of the Constitution provides that Rajya Sabha may pass a resolution, by a majority of not less than two-thirds of the members present and voting, to the effect that it is necessary or expedient in the national interest that Parliament should make a law with respect to any matter enumerated in the State List. Then, Parliament is empowered to make a law on the subject specified in the resolution for the whole or any part of the territory of India. Such a resolution remains in force for a maximum period of one year but this period can be extended by one year at a time by passing a further resolution.

Again, under article 312 of the Constitution, if Rajya Sabha passes a resolution by a majority of not less than two-thirds of the members present and voting declaring that it is necessary or expedient in the national interest to create one or more All India Services common to the Union and the States, Parliament has the power to create by law such services.

Under the Constitution, President is empowered to issue Proclamations in the event of national emergency (article 352), in the event of failure of constitutional machinery in a State (article 356), or in the case of financial emergency (article 360). Normally, every such Proclamation has to be approved by both Houses of Parliament within a stipulated period. Under certain circumstances, however, Rajya Sabha enjoys special powers in this regard. If a Proclamation is issued at a time when Lok Sabha has been dissolved or the dissolution of Lok Sabha takes place within the period allowed for its approval, then the Proclamation can remain effective if a resolution approving it is passed by Rajya Sabha.
The Lok Sabha

The Lok Sabha is a popular House.  Its members are directly elected by the people. The maximum number of its membership is fixed at 550 out of whom ,(a) not more than 530 are elected by the votes in the States ,(b) not more than 20 to represent the Union Territores (Art.81).  Under Art. 331 the President may nominate not more than two members of the Anglo-Indian Community if in his opinion that community is not adequately represented by the Lok Sabha.  The representatives of the States are elected directly by the people of the State on the basis of adult franchise.  The representatives of the Union Territories shall be elected in the manner prescribed by Parliament by law. Every citizen of India, male or female who is not less than 18 years of age and is not disqualified on the grounds of non-residence, unsoundness of mind, crime or corrupt or illegal practice, is entitled to vote at election of the Lok Sabha ( Art. 326).

Special Powers of Lok Sabha

Lok Sabha enjoys special powers in regard to the 'collective responsibility' of the Government and in financial matters. The Constitution provides that the Council of Ministers shall be collectively responsible to the House of the People (Lok Sabha). The power to control the purse also lies with Lok Sabha. A Money Bill has to be introduced only in Lok Sabha. Similarly, Demands for Grants of the various Ministries are also made to, discussed and voted in Lok Sabha.

Relationship of the Two Houses

As mentioned earlier, a Money Bill can be introduced only in Lok Sabha. After it is passed by that House, it is transmitted to Rajya Sabha for its concurrence or recommendation. The power of Rajya Sabha in respect of such a Bill is limited with regard to the duration of its retention and making amendments thereto.

Rajya Sabha has to return such a Bill to Lok Sabha within a period of fourteen days from its receipt. If it is not returned to Lok Sabha within that time, Bill is deemed to have been passed by both Houses at the expiration of the said period in the form in which it was passed by Lok Sabha. Again, Rajya Sabha cannot amend a Money Bill directly; it can only recommend amendments in such a Bill. Lok Sabha may either accept or reject all or any of the recommendations made by Rajya Sabha. If Lok Sabha accepts any of the recommendations made by Rajya Sabha, the Bill is deemed to have been passed by both Houses with the amendments so recommended and accepted.

If, however, Lok Sabha does not accept any of the recommendations of Rajya Sabha, the Money Bill is deemed to have been passed by both Houses of Parliament in the form in which it was passed by Lok Sabha without any of the amendments recommended by Rajya Sabha.

Apart from a Money Bill, certain other categories of Financial Bills also cannot be introduced in Rajya Sabha but there is no other limitation on the powers of Rajya Sabha with regard to such Bills and Rajya Sabha has powers to reject or amend such Financial Bills like any other Bill.

From all this, however, it does not follow that Rajya Sabha has nothing to do in matters relating to finance. The Budget of the Government of India is laid every year before Rajya Sabha also and its members discuss it. Though Rajya Sabha does not vote on Demands for Grants of various Ministries – a matter exclusively reserved for Lok Sabha. However, members of Rajya Sabha are also represented in the Department-related Parliamentary Standing Committees which inter alia consider Demands for Grants of the related Ministries/Departments. The Appropriation Bill and the annual Finance Bill also pass through Rajya Sabha which can make recommendations that may or may not be accepted by Lok Sabha.

In the sphere of law making, both Houses enjoy equal powers as originating and revising chambers. All Bills (other than Money Bills or Finance Bills) including the Constitution Amendment Bills, may originate in either House of Parliament. A Bill introduced by the Minister is known as the Government Bill and a Bill introduced by a private member is known as private member's Bill. 

The procedure for the passage of the Bills is similar in both the cases. A Bill has to pass through three stages known as the first reading, second reading and third reading, in each House of Parliament and receive the assent of the President before it becomes an Act of Parliament. A Bill shall not be deemed to have been passed by Parliament, unless it has been agreed to by both Houses, either without amendment or with amendments agreed to by both Houses.
The Council of Ministers

Originally Article 74(1) provided that “ there shall be a Council of Ministers with the Prime Minister as its head to aid and advise the President in the exercise of his functions”. After the 42nd Amendment, 1976, the language of Article 74(1) is as follows:- There shall be a Council of Ministers with the Prime Minister as its head to aid and advise the President, who shall, in exercise of his functions act in accordance with such advice.”  According to Article 75(1) The Prime Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Prime Minister.

Maximum number of Ministers

 The amendment has added two new clauses – Clause (IA) and (IB) of Art.75 of the Constitution.  The new clause 1A provides that the total number of ministers including Prime Minister, in the Council of Ministers shall not exceed 15 per cent of the total number of members of the House of people.

Principle of Collective responsibility

The basic principle of Parliamentary form of Government is the principle of collective responsibility. In England, this principles works on well established conventions.  In India this Principle is ensured by marking specific provisions in the Constitution Article 75(3) provides that the Council of Ministers shall be collectively responsible to the Lok Sabha .  The principle or collective responsibility means that the Council of Ministers is as a body responsible to the Lok Sabha for the general conduct of affairs of the Government.  The Council of Ministers work as a team and all decisions taken by the Cabinet are joint decisions of all its members.  No matter whatever be their personal difference of opinion with the cabinet, but once a decision has been taken by it, it is the duty of each and every Minister to stand by it and support it both in the Legislature and outside. 

Minister’s individual responsibility

Along with the principle of collective responsibility, the principle of individual responsibility to each minister to the Parliament also works. Every Minister is responsible for the acts of the officers of his department.  He has to answer question regarding the affairs of his department in the Parliament.  He cannot throw the responsibility of his department either on his officials or another Minister. 

Functions of the Parliament

The most important function of the Parliament is the making of the laws. The legislative procedure is initiated in the form of a Bill.
Ordinary Bill
An ordinary Bill i.e Bill other than Money Bill and Financial Bills may originate in either House of the Parliament.  The Bill must be passed by both the Houses of Parliament and then only it can be sent for President’s assent.  It becomes a law when it is assented to,  by the President.  Each House has laid down a procedure for the passage of a Bill.  According to the procedure of a House a Bill has to pass through three stages commonly known as Readings. ‘First Reading’, ‘Second Reading’  and  ‘Third Reading’. At first stage the Bill is introduced in the House. At this stage no discussion takes place. The second is the consideration stage when the Bill is discussed clause by clause. At this stage amendments may be moved. At the third reading stage a brief general discussion of the Bill takes place and the Bill is finally passed.  When the Bill is passed by one House it is sent to the other House, where a similar procedure is repeated.  If there is any disagreement between the Houses over any Bill, the Bill cannot be deemed to have been passed. If the two Houses do not agree a deadlock is created.  To resolve such a deadlock the Constitution provides the method of joint sitting of the Houses.

Joint Session of House

According to Article 108 when a Bill passed by one House and sent to the other House:

1)     is rejected by the House; or
2)     the House disagrees as the amendment to be made in the Bill; or
3)     the other House does not pass the Bill and more than six months have passed the President may summon a joint session of both the Houses.

President’s assent

No Bill can become a law without the assent of the President even if it has been passed by both Houses of Parliament.  Article 111 says that when a Bill has been passed by both Houses of Parliament, it is sent to the President for his assent. The President may either:

a)     give his assent to the Bill ,or
b)     he may withhold his assent, or
c)     he may return a Bill if it is not a Money Bill to the House for reconsideration with or without a message suggesting such amendments as he may recommend.  When a Bill is so returned, the Houses shall reconsider in the light of the Presidential message.  However, if the Bill is again passed by the Houses with or without amendment and presented to the President for assent, the President shall not withhold  his assent.


Money Bill

Article 110 (1) defines that a Money Bill is a Bill which contains only provisions with respect to all or any of the specified matters.

Financial Bills

Financial Bills are of three kinds

1.      Money Bills – Article 110 (1)
2.      Other Financial Bills – Article 117(1)
3.      Bills involving expenditure- Article 117 (3)

Distinction between Money Bills, Financial Bills and Bills involving expenditures 

A Money Bill is a Bill which contains only mattes mentioned Article 110 (1).  A Financial Bill, apart from dealing with one or more of the matters mentioned in Article 110(1) deals with other mattes also. Thus a Financial Bill is a Money Bill to which provisions of general legislations are also added apart from one or more matters of Article 110 (1).  All Money Bills are financial Bills but all financial bills are not Money Bills.

Annual Financial Statement-Budget (Article 112)

 According to Article 112 the President shall in respect of every financial year cause to be laid before both the Houses of Parliament an annual financial statement commonly known as the Budget. This Statement gives out the estimated income and expenditure for that year. This estimated expenditure is shown separately under two heads (a) the sums charged upon the Consolidated Fund of India and (b) the sums required to meet other expenditure out of the Consolidated Fund of India.  The expenditure or revenue account should also be distinguished from the other expenditure.

Discussion and voting on Budget

 According to Article 113 the expenditure which is charged on the Consolidated Fund of India shall not be submitted to the vote of Parliament.

Appropriation Bills

No money can be taken out from the Consolidated Fund of India unless the Appropriation Act is passed (Art 114 (3).  Therefore, after the demands for grants under Art 113 are passed by the Lok Sabha, a Bill known as Appropriation Act is introduced in the Lok Sabha.  The Bill specifies all the grants made by the Lok Sabha, the expenditure charge on the Consolidated Fund of India as shown in the previous statement before Parliament.

Votes on Account / Votes on Credit and Exceptional Grant

 Before the appropriation Act is passed no money is to be withdrawn from the Consolidated Fund of India. But the Government may need money to spend before it is passed. Accordingly, under Article 116 (a) the Lok Sabha can grant a Limited sum from the consolidated Fund of India to the Executive to spend till the Appropriation Act is passed by Parliament.  Under clause (b) the Lok Sabha can make a grant for meeting an unexpected demand upon the resources of India when on account of the magnitude or the indefinite character of the service, the demand cannot be stated with details ordinarily given in the Annual Financial Statement.  

Parliamentary Control over Financial matters

In financial mattes Parliament has effective control.  The Annual Budget is presented to Parliament and passed by it. Appropriation Bills and the Financial Bills are also passed by Parliament.  Unless the appropriation Bill is passed no money can be withdrawn by the government from the Consolidated Fund of India. 

Parliamentary Committees: To have effective control over the government activity on a regular and continuing  basis various Parliamentary Committees are established so that grants for various ministers are scrutinized by the elected representatives well before they are presented to the Parliament for its approval. 

Language to be used in Parliament

The Proceedings in Parliament shall be conducted in Hindu or in English. But the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha, as the case may be may permit any member who cannot adequately express himself in Hindi or in English to address the House in his mother tongue.

Restrictions on discussion in Parliament

 Article 121 prohibits any discussion in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except when resolution is presented to the parliament for the removal of the Judge. The object of this article is to ensure the independence of judiciary.

Courts not to inquire into proceedings of Parliament
Article 122 lays down that the validity of any proceedings in Parliament cannot be called in question in any court on the ground of any alleged irregularity of procedure.  No officer or member of Parliament who has authority to regulate the procedure or the Conduct of business of or of Parliament who  has authority  to regulate the procedure or the conduct of business or for maintaining order in the House is subject to the jurisdiction of any court in respect of the exercise by him of those powers.   The Court cannot issue a writ against the Speaker from presiding over a meeting of the House or stop the passage of a Bill.[1] The Courts cannot go into the question as to the validity of the proceedings in the House of Parliament[2]
Legislative   Process
 *Since the inception of Department - related Standing Committees, a new practice has evolved. Nowadays, generally, Bills are referred to the concerned Department-related Committees for examination and report thereon by the Presiding Officers once they are introduced in the House.
There is a possibility of disagreement between the two Houses on a Bill. Such a disagreement may arise when (i) a Bill passed by one House is rejected by the other House; or (ii) the Houses have finally disagreed as to the amendments to be made in the Bill; or (iii) more than six months elapse from the date of reception of the Bill by the other House without the Bill being passed by it. To resolve the deadlock on a Bill between the two Houses, the Constitution makes provision for the joint sitting of both Houses which may be summoned by the President. If at the joint sitting of the two Houses, the Bill is passed by the majority of the total number of members of both Houses present and voting, it shall be deemed to have been passed by both Houses.
There is no provision for a joint sitting of both Houses on Money Bills. In the history of Indian Parliament, there have been three occasions when both Houses have sat for a joint sitting to resolve such a deadlock.

Both Houses possess equal powers with regard to a Constitution Amendment Bill. A Bill to amend the Constitution has to be passed by each House of Parliament separately by a majority of the total membership of the House and by a majority of not less than two-thirds of the members of that House present and voting. Some of these Constitution Amendment Bills also require to be ratified by the Legislatures of not less than one-half of the States. There is no provision for a joint sitting with regard to a Constitution Amendment Bill if a deadlock were to arise between the two Houses either due to rejection of such a Bill in one House or both Houses not agreeing to the amendments to be made in such a Bill.
As mentioned, Ministers may belong to either House of Parliament. The Constitution does not make any distinction between the Houses in this regard. Every Minister has the right to speak in and take part in the proceedings of either House but he is entitled to vote only in the House of which he is a member.
Similarly, with regard to powers, privileges and immunities of the Houses of Parliament, their members and Committees thereof, the two Houses are placed on equal footing by the Constitution.
Other important matters in respect of which both Houses enjoy equal powers are election and impeachment of the President, election of the Vice-President, approving the Proclamation of emergency and the Proclamation regarding failure of constitutional machinery in States and in respect of receiving reports and papers from various statutory authorities, etc.
It is thus clear that except in the case of collective responsibility of the Cabinet and certain financial matters (which fall in the domain of Lok Sabha only), both Houses enjoy equal powers. Emphasising that neither House of the Indian Parliament was superior to the other and that each House had to perform the specific functions allotted to it by the Constitution, Shri Jawaharlal Nehru, the first Prime Minister of India, once observed:
“To call either of these Houses an Upper House or a Lower House is not correct. Each House has full authority to regulate its own procedure within the limits of the Constitution. Neither House, by itself, constitutes Parliament. It is the two Houses together that are the Parliament of India… There can be no constitutional differences between the two Houses because the final authority is the Constitution itself. The Constitution treats the two Houses equally except in financial matters which are to be the sole purview of the House of the People.”
Over the years, both Houses have functioned in a spirit of cooperation and the disagreements between the two have been few and far between either in regard to legislation or otherwise.


[Published in the Corporate Secretary of ICSI, during September,2012]




[1] Chhotey Lal v State of U.P. AIR 1951 All 258
[2] Smt. Indira Nehru Gandhi v Raj Narayan AIR 1975 SC 2399

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