The disqualification conundrum (GS Paper 2, Polity and Governance)
Why in news?
- The disqualification of Rahul Gandhi from his membership of the Lok Sabha, which also means that he is not qualified to enter an electoral contest for a period that may potentially run up to eight years, has set off a debate on whether criminal conviction should entail immediate loss of a serving legislator’s membership.
- A petition has already been filed questioning the relevant provision in the Representation of the People Act, 1951, that prescribes disqualification on conviction for crimes that attract a prison term of two years and more.
Section 8(4) of the RPA, 1951:
- There is considerable discussion now as to whether the earlier protection enjoyed by serving legislators from immediate disqualification must be restored. Section 8(4) of the RPA, 1951, was struck down in 2013 by the Supreme Court in a landmark verdict in Lily Thomas versus Union of India.
- Section 8(4) of the Act was declared unconstitutional on the ground that Parliament lacked the legislative competence to enact it.
- The apex Court had cited Article 102 of the Constitution (and Article 191, the corresponding article for State Assembly and Legislative Council members) to lay down that Parliament was mandated to enact a common law prescribing what sort of situation would disqualify a person for both ‘being chosen as’ and ‘being a member’ of Parliament.
- Sub-section (4) of Section 8 said the disqualification will not take effect for three months for anyone who is an MP or an MLA on the date of conviction, and if during that period, an appeal is filed, the mere fact of filing the appeal will operate as a stay on disqualification until its disposal.
- The Court ruled that Parliament was not competent to have separate provisions for these two situations, as the constitutional mandate was to enact a single law.
- By creating one provision for the immediate disqualification of ordinary citizens and another one for deferred disqualification of legislators, Parliament had violated the constitutional mandate.
Arguments on practical consideration:
- During the hearing, the government defended the protection clause for sitting lawmakers with two arguments, the first of which was based on practical considerations.
- It contended that a regime may be surviving on a wafer-thin majority, and immediate disqualification of a member or two from the date of conviction may result in loss of majority and change of regime. It was necessary for the purposes of democracy to prevent the situation.
- The second consideration was that immediate disqualification may entail the conduct of a by-election. In the event of the conviction being set aside by an appellate court after a while, the by-election’s outcome cannot be reversed, and the exonerated former member will have no legal recourse for restoration of membership.
The argument on legal grounds:
- The government submitted that Parliament was not really making two different provisions concerning disqualification while enacting Section 8.
- What the protection clause envisaged was mere postponement of the time from which the disqualification comes into effect in case of serving legislators. It did not mean that lawmakers were subject to a different kind of disqualification for ‘being chosen as’ and ‘being members’.
- The Supreme Court rejected these arguments. It went on to hold that the remedy for someone suffering immediate disqualification was to file an appeal and seek a stay on conviction.
- It clarified that the disqualification will cease to operate from the date of stay of conviction by an appellate court. This has given rise to a different question altogether, one that may be relevant today in respect of those suffering disqualification as on date.
The relevancy of the date of stay:
- In most cases, there is no stay of conviction, as the Supreme Court has often said only suspension of sentence and grant of bail, pending appeal, were normal remedies, and stay of conviction should be given only rarely.
- The examples of political leaders who lost their membership of the legislature and went on to either succeed or lose in their appeal did not create any major controversy.
- For instance, the late J. Jayalalithaa, whose conviction for corruption resulted in loss of her office and membership in 2014, failed to get any stay of conviction. Therefore, a by-election was held after her seat was declared vacant. She succeeded in appeal before the Karnataka High Court and had to re-enter the Assembly and regain her office as Chief Minister only through a by-election.
- However, Lakshadweep MP Mohammed Faizal, who was convicted and sentenced to a 10-year prison term in January, managed to get a stay of conviction from the Kerala High Court. However, by then, the Lok Sabha secretariat had notified that his seat was vacant. The Election Commission even fixed a date for the by-election, but when he challenged this in the Supreme Court, the Commission said it would honour the court’s stay order. Yet, Mr. Faizal’s Lok Sabha membership is yet to be restored.
- The probable reason is that the date of conviction is the date on which the disqualification comes into effect, but the stay of conviction operates only from the day the stay is granted.
Conclusion & Way Forward:
- A simple way out is that the secretariat of the respective Houses should give effect to the order of stay on conviction fully, by restoring the legislator’s membership without further ado, until the appeal is disposed of.
- Another step that can be adopted as a matter of practice is for the secretariat to wait until the convicted member approaches higher courts for stay of conviction, and notify a vacancy only if the application is rejected.
- However, there may be some scope for the Supreme Court to re-examine some of the issues involved. Mr. Faizal’s case provides an opportunity to decide whether the legislative secretariat should wait for an appellate remedy before declaring a seat vacant.
- The issue of whether the President, or Governor in the case of State legislators, should formally declare a person disqualified as required under Article 103 and Article 192 instead of using the ‘automatic’ disqualification route is also open.
Heat action plans in India fail to identify vulnerable groups: study
(GS Paper 3, Environment)
Why in news?
- Following Prime Minister’s high-level recent meeting to review heatwave preparedness, a new report by the Centre for Policy Research on “How is India adapting to heatwaves?” indicates that the country is ill-prepared to face the heat.
Details:
- It analysed all the 37 heat action plans (HAPs) across 18 States, to evaluate how policy action is keeping up with the warming weather in India, and found that most plans are not built for local contexts.
- It found that nearly all of them fail to identify and target vulnerable groups, and are underfunded with weak legal foundations and are insufficiently transparent.
Why focus on heat waves?
- Extreme heat poses an unprecedented challenge to health and productivity, cautioned the centre adding that heatwaves (prolonged periods of extreme heat) have increased in frequency in recent decades due to climate change.
- Landmark heatwaves (1998, 2002, 2010, 2015, 2022) have each led to large death tolls (according to government estimates) and extensive economic damage by reducing labour productivity and affecting water availability, agriculture, and energy systems.
Status of Heat Action Plans (HAPs):
- Governments across India at the State, district, and municipal levels have responded by creating heat action plans (HAPs), which prescribe a variety of preparatory activities and post-heatwave response measures across government departments to decrease the impact of heatwaves.
- The current report analysed 37 heat action plans at the city (nine), district (13) and State (15) levels across 18 States.
- The report states that only two HAPs carry out and present vulnerability assessments (systematic studies to locate where the people most likely to be affected are in a city, district, or State).
- While most HAPs list broad categories of vulnerable groups (elderly, outdoor workers, pregnant women) and the list of solutions, they do not focus on these groups.
- Additionally, only three of the 37 HAPs identify funding sources and eight HAPs ask implementing departments to self-allocate resources, indicating a serious funding constraint.
- None of the HAPs reviewed indicate the legal sources of their authority. This reduces bureaucratic incentives to prioritise and comply with the HAPs’ instructions, said the report.
- It said that there is no national repository of HAPs and very few HAPs are listed online. It is also unclear whether these HAPs are being updated periodically.
Way Forward:
- India has made considerable progress by creating several dozen heat action plans in the last decade. But assessment reveals several gaps that must be filled in future plans.
- If it don’t, India will suffer damaging economic losses due to decreasing labour productivity, sudden disruptions to agriculture, and unbearably hot cities as heatwaves become more frequent and intense.
- Without implementation-oriented HAPs, India’s poorest will continue to suffer from extreme heat, paying with both their health and incomes.
Parliament passes Finance Bill
(GS Paper 2, Polity and Governance)
Why in news?
- The Parliament recently approved the Finance Bill 2023. The amended Finance Bill was approved by the Rajya Sabha by voice vote and recommended to the Lok Sabha, which had approved it earlier.
- The Rajya Sabha also returned Jammu and Kashmir Budget 2023-24 and appropriation bills to Lok Sabha without any discussion.
Securities Transaction Tax (SST):
- It was passed with an amendment to the rate of securities transaction tax to be levied on options.
- The amendment proposed that STT at the rate of 0.0625% shall be levied on the sale of options as against the current rate of 0.05%.
- The corrected rate hike for STT on options means a tax of Rs 6,250 on trade value of Rs. 1 crore instead of Rs. 5,000 earlier. This would be effective from April 1.
64 amendments:
- In all, the finance minister had moved 64 amendments to the Finance Bill including a provision to do away with the long term capital gains benefit for debt mutual funds that invest up to 35% of their proceeds in equity shares of domestic firms, as well as setting up the goods and services tax appellate tribunal.
Way Forward:
- The passage of the Finance Bill by both houses marked the completion of the Budgetary exercise.
What is a Finance Bill?
- As per Article 110 of the Constitution of India, the Finance Bill is a Money Bill. The Finance Bill is a part of the Union Budget, stipulating all the legal amendments required for the changes in taxation proposed by the Finance Minister.
- This Bill encompasses all amendments required in various laws pertaining to tax, in accordance with the tax proposals made in the Union Budget. The Finance Bill, as a Money Bill, needs to be passed by the Lok Sabha. Post the Lok Sabha’s approval, the Finance Bill becomes Finance Act.
Difference between a Money Bill and the Finance Bill:
- A Money Bill has to be introduced in the Lok Sabha as per Section 110 of the Constitution. Then, it is transmitted to the Rajya Sabha for its recommendations.
- The Rajya Sabha has to return the Bill with recommendations in 14 days. However, the Lok Sabha can reject all or some of the recommendations.
- In the case of a Finance Bill, Article 117 of the Constitution categorically lays down that a Bill pertaining to sub-clauses (a) to (f) of clause (1) shall not be introduced or moved except with the President’s recommendation. Also, a Bill that makes such provisions shall not be introduced in the Rajya Sabha.
Who decides the Bill is a Finance Bill?
- The Speaker of the Lok Sabha is authorised to decide whether the Bill is a Money Bill or not. Also, the Speaker’s decision shall be deemed to be final.
