In passing the contentious Farm Bills, the presiding officer of Rajya Sabha denied conducting division vote on account of the ruckus in the House and passed the Bill through a voice vote, violating Article 105 of the Constitution in the process.
The recent deadlock between the farmers and the Government results from the new farm laws that have been enacted. While the farmers have launched an all-out protest to demand the rolling back of the farm laws, the Government has maintained a firm stance that these bills are enacted to ensure farmers’ welfare. The three Farm Bills, Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, and the Essential Commodities (Amendment) Act, 2020, were passed in the Rajya Sabha by voice vote. The apparent issue with voice-vote is its inaccuracy since the Speaker bases its decision of the majority opinion upon the loudness of the contesting parties’ shouting. Hence, it is not ideal for conducting important issues except in cases where voting is so one-sided that it is a mere formality. In this case, the presiding officer turned down the demand for division vote because of ruckus and impropriety in the House.
Such a method was adopted because the NDA doesn’t enjoy majority in the Rajya Sabha and without the consensus of regional parties, the Government could not get the Bill passed through the division vote. Its major allies like AIADMK and Shiromani Akali Dal (SAD) opposed the bills, with AIADMK recommending the Bill to be sent to the Select Committee for review. Moreover, its traditional allies like Biju Janata Dal (BJD) and Telangana Rashtra Samithi (TRS) were also in support of referring the bills to the Select Committee for review.
The presiding officer’s actions have several repercussions on legislators’ rights and the efficacy of the Rajya Sabha as an institution. This article aims to explore the grounds under which the presiding officer’s actions could be subjected to judicial review. By looking at the public-choice theory, the article explicates the role of placing checks and balances upon the Legislature’s powers leading to increased transaction costs and reducing rent-seeking agreements.
VIOLATION OF FREEDOM OF SPEECH UNDER ARTICLE 105
Article 105(1) and (2) confers qualified freedom of speech on the Members of the House as a Parliamentary privilege. It is no doubt of very great importance and substance because the essence of a Democratic form of Government is that Members of Legislature must be given complete freedom of expression when matters are brought up for discussion.
The Constitution envisages Freedom of Speech to citizens under Article 19(1)(a) as a fundamental right. However, an additional right envisaged in Article 105(1) for the Members of the Parliament, separate from Article 19(1)(a), reflects the importance of debates and discussions in Parliament as viewed by the Constitutional Drafters. This right reflects the fundamental value that free and fearless explication of critique is the basis of democracy since members of the Parliament represent citizens’ voice and interests. A vote, by voice or expression, or with the aid of a mechanical device, is an extension or substitute for speech. Therefore, it is covered under the ambit of Article 105(1). Restriction or denial of speech in any form is a transgression of the constitutional rights of the Members of Parliament and therefore, is subject to Judicial Review.
In passing the contentious Farm Bills, the presiding officer of Rajya Sabha denied conducting division vote on account of the ruckus in the House and passed the Bill through a voice vote. Moreover, the request of members for conducting division vote was denied, and thus, such members could not register their vote or critique the passing of the Bill. Since the vote is an extension of freedom of expression, the denial of division vote to the Legislators is in gross violation of Article 105(1) and makes a legitimate ground for Judicial Review.
Additionally, Article 105(2) cannot be interpreted to mean that action of Parliament cannot be investigated in a court, and the judiciary is not restricted from probing the justifiability of the Legislature’s action trespassing on constitutional rights, subject to the limitations envisaged under Articles 122 and 212. An example must be taken from the decision of the South African Court, in Mazibuko v. Sisulu, Speaker of National Assembly, which held that there is no question of the court’s power to intervene to safeguard the constitutional rights of Members to engage in the business of the Parliament. It is not out of place to mention that courts in South Africa are restricted by the common law principle of non-intervention in the internal affairs of the Parliament and separation of powers. According to the court, such intervention becomes necessary where the National Assembly, which must advocate and advance participatory and representative democracy, threatens or violates any freedom. This case holds a significant value for India, where the Parliament’s actions are also exempted from judicial review under Article 105(2). Thus, as the supreme guardian of the Constitution, the courts are obliged to ensure through the principle of legality that the other governmental organs employ their powers within the limits of their constitutional authority.
PRESIDING OFFICER VIOLATED THE RULE OF MAJORITY
Article 100(1) read with Article 107(2) implies that all the ordinary Bills at any sitting of any House of Parliament must be ascertained by the majority votes of members present and voting. This mandates that a majority of votes is necessitated for passing a Bill. Since the Constitution itself does not envisage any procedure for determining the majority, it allows the Parliament to enact the rules of the House under Article 118(1), subject to other provisions of the Constitution.
Rule 252 of the Rules of Procedure and Conduct of the Business in the Rajya Sabha prescribes the usage of voice vote while laying down that when a member demands division vote after the declaration of results by voice vote, the presiding officer has to allow and conduct division vote. The bills mentioned above were passed without determining the majority votes as prescribed by Article 100(1) and 107(2) of the Constitution and without adhering to the opposition demands for division vote as prescribed by Rule 252 of Rules of Procedure.
The Supreme Court has ruled in the context of Lok Sabha that the judiciary can scrutinise the Speaker’s decision if it violates the rules or procedures of Parliament. Therefore, the motion of passing farm Bills without acceptance of division vote by the Deputy Chairman is in gross violation of the Rules of Procedure and the Constitution, and thus, it must be subjected to Judicial Review.
ARBITRARY ACTIONS OF THE CHAIRPERSON
The decision of presiding officer of Rajya Sabha is inconsistent with the scheme of the Constitution. The Chair of the Rajya Sabha is the undisputed custodian of the esteem and integrity of the House. As a presiding officer, he ensures that pertinent constitutional provisions, conventions, rules and practices are adhered to in the proceedings of the House. He ensures propriety is maintained in the House and is the guardian and custodian of rights and privileges of the House and its members. For this argument, it is essential to examine the importance of bi-cameralism in a constitutional democracy.
Bi-cameral legislatures play a significant role in constitutions of a federal nature. As an institutional structure, the Rajya Sabha has been established to reflect the pluralism of the nation as well as its culture, diversity and preferences. Moreover, the Rajya Sabha is envisaged to be a reactive, demos-limiting House that functions as a “cooling chamber” for and a look over on the majoritarian Lok Sabha.
The Chair’s decision on whether bills should be passed by voice or division vote is not just a matter of procedure, but severely impacts the role and functioning of the Upper House and, therefore, working of the federal polity. There is an undisputed trust placed on the Chairman, which is based on the expectation that s/he will not weaken the existence of a co-ordinate body in a bicameral Legislature. By passing the Bill by means of a voice vote and disallowing the demands of a division vote, the Chair not only restricted the role of the Upper House but also denuded the efficacy of an institution created in accordance with the Constitution. Such an outcome is arbitrary, capricious, and must be subjected to judicial scrutiny to ensure that our Constitution’s federal features are not transgressed.
A similar concern was echoed by J. Chandrachud in K.S. Puttaswamy v. Union of India, where the Speaker’s power of declaring a bill as a money bill was challenged. The judge opined that decision of the Speaker to declare an ordinary bill as a money bill transgresses on the role of the Rajya Sabha as an institution of deliberation and discussion. Such actions clearly limit the functioning of the Upper House and must not be immune from judicial review. Therefore, it is submitted that the decision of presiding officer to pass a bill through voice vote must be subjected to judicial review since it infringes stated constitutional provisions as well as the basic structure of the Indian Constitution.
JUDICIAL REVIEW NOT LIMITED BY ARTICLE 122
Judicial Review of the Farm Bills passed through voice vote is not limited by the restrictions contained under Article 122(1) of the Constitution. This provision prohibits the judiciary from scrutinising the validity of the proceedings in Parliament because of “irregularity of procedure”. Moreover, Article 122(2) confers exemption for officials and members of the House of Parliament whose powers are vested under the Constitution for overseeing the conduct of the business or regulating procedure, from being subject to the court’s jurisdiction in exercise of such powers. However, Article 122 makes it practicable for a member to raise any question in the court of law against proceedings inside either House of Parliament if such impugned proceedings suffer from illegality, not mere procedural irregularity. Applying the principle of “expressio unius est exclusio alterius” (non-inclusion of a ground means exclusion of the same), it is amply clear that any prohibition on interference in parliamentary proceedings by court on the grounds of “irregularity of procedure” does not implicitly exclude judicial review by reason of illegality or unconstitutionality.
As examined earlier, the act of disallowing division vote to members is in clear violation of their rights as members under Articles 100(1), 105, and 107(2). Additionally, the actions of the presiding officer transgress upon the role of Rajya Sabha as an institution, and thus, violate the basic structure of the Constitution. The violation of above-mentioned articles and infringement of federal character of the state through bypassing Rajya Sabha would fall under the umbrella of “illegality/unconstitutionality”, not mere procedural irregularity. Therefore, any endeavour to read a restriction into Article 122 to limit the court’s jurisdiction to scrutinise the proceedings of Parliament on the touchstone of unconstitutionality, as against irregularity would be tantamount to doing injustice to the text of the Constitution.
ECONOMIC PERSPECTIVE THEORY SUPPORTS JUDICIAL REVIEW
Analysing the situation from an econo-legal perspective could help make efficient and rational decision-making. Jonathan Macey argues that interest groups’ inclination to pursue rent-seeking legislation is directly proportionate to the transaction costs incurred in enacting the same. If there are no Checks and Balances (CABs), political activities would be directed towards rent-seeking activities – money being spent on horse-trading and bribing, among others. Therefore, wasting exchequer money could be used for common benefit. So, subjecting them to increased transaction costs by placing the judiciary as the final authority to scrutinise the Speaker’s partisan behaviour will increase transaction costs. For instance, a speaker passing an ordinary bill as a money bill would be unwilling to get disqualified and demand big chunks of money or higher ranks in political offices.
Establishing judicial review would shift the supply curve to the right (transaction costs increases as rent-seeking activities rise). As a result, the price of enacting rent-seeking legislations will rise (because judicial review will subject the Government to increased costs). Therefore, the Government’s rent-seeking activities will reduce, as shown in the figure below.
While the courts have retained a protectionist stance towards conduct in the Legislature, the recent controversy originated in the Rajya Sabha and the recent outcry over these bills might prompt the judiciary to delve into the propriety of the conduct of officials and members of the Parliament. In a federal country like India, the Rajya Sabha is an important institution to keep a check on the majoritarian powers of the Government in the sense that the Upper House is competent to vote and reject all the bills originating in the Lower House and thus, serves a reactive role. Its efficacy should not be denuded by restricting members’ rights to vote and express their concerns in the House. Therefore, Judicial Review will ensure that Principles of Bicameralism are never transgressed upon during arbitrary action in the proceedings of the House.
 The seats breakdown for NDA in Rajya Sabha is – BJP (93), AIADMK (9), JDU (5) and some other parties totalling to 118 out of 245.
 Durga Das Basu, Constitution of India (9th edn, Lexis Nexis 2015) vol 8, 2241.
 Majority cannot be determined in voice vote since the vote in not recorded as opposed to division vote where votes of the members are officially recorded.
Cover Image Credits: Gayathri N.