Lokpal bil: sense of house fogotten too soon? PUBLIC REPORTER
On August 27, 2011, the parliament of India pulled a fast one on Ralegaon Siddhi’s most famous resident Anna Hazare, the ever perplexed Team Anna and the millions of Indians who were watching Lok Sabha TV, waiting with abated breath for Anna to break his 12-day fast.
Pranab Mukherjee read out the ‘sense’ of the Lower House: “This House agrees ‘in principle’ on following issues — (i) Citizen's Charter, (ii) lower bureaucracy also to be under the Lokpal through appropriate mechanism, and (iii) establishment of Lokayuktas in the states.” Soon after learning of this development, Anna rejuvenated his senses by taking a sip of coconut water and honey from the hands of a dalit girl while Arvind Kejriwal posed for the camera with Vilasrao Deshmukh, the minister for science and technology.
On December 29, 2011, KV Narayanaswamy, minister of state for parliamentary affairs, reiterated that a fresh Lokpal Bill tabled by the government complied with the historic sense of the House. By repeatedly hailing it as a ‘resolution’, the UPA government claims that since their allies as well as the opposition were party to the ‘sense of the house’, they now have no right to oppose it.
After a perusal of the ‘Rules of Procedure and Conduct of Business in the Lok Sabha’ (available on the Lok Sabha website), it becomes clear that since there was no voting on the ‘sense of the house’ it was not binding on the government, the opposition or for that matter, the department related parliamentary standing committee on personnel public grievances, law and justice. These rules are not ultra vires the Constitution of India since Article 118(1) provides that "each House of Parliament may make regulations, subject to the provisions of this Constitution, its procedure and the conduct of its business".
According to Rule 171, “a resolution may be in the form of a declaration of opinion, or a recommendation; or may be in the form so as to record either approval or disapproval by the House of an act or policy of government, or convey a message; or commend, urge or request an action; or call attention to a matter or situation for consideration by government; or in such other form as the Speaker may consider appropriate.” According to Rule 181, “when any resolution involving several points has been discussed, the Speaker may divide the resolution, and put each or any point separately to the vote, as he/she may think fit.” The corresponding rules in the Rajya Sabha are also similar.
Since the sense of the house on the Lokpal Bill was not voted upon, it was not a resolution of the house and therefore, had no binding value. Leader of the Opposition in the Rajya Sabha noted that it was only an “in-principle” acceptance of the three points raised by Team Anna and that there was “no proposer, no seconder, and no voting” as is normally the case when a resolution is passed.
Resolutions may be broadly divided into three categories: A). resolutions which have statutory effect- (related to a provision in the Constitution or an Act of parliament). Such a resolution, if adopted, is binding on the Government and has the force of law; B). resolutions which the house passes in the matter of control over its own proceedings; C). resolutions which are expression of opinion by the house – since the purpose of such a resolution is merely to obtain an expression of opinion of the house, the government is not bound to give effect to the opinions expressed in these resolutions.
Thus, even if considered as a resolution, the sense of the house on the Lokpal does not have more than ‘recommendatory’ value.
Though the report of the department related parliamentary standing committee on personnel public grievances, law and justice and the consequent Lokpal and the Lokayuktas Bill, 2011 incorporates the sense of the house in one way or another, the UPA government had not right to argue that the TMC and its other allies have lost their right to raise the federalism question at this stage, based on the sole premise that they were present in the house on that fateful day.
The first lesson we as law students are taught is that the devil lies in the details of a piece of legislation, judgment and the like. People’s movements in the future must be more cautious when the government of the day draws on complex legal jargon.
Forty six years have passed since the recommendation for setting up the ombudsman institution by the administrative reforms commission and 11 such bills have been introduced in parliament since independence, but the ‘futuristic’ institution envisaged by Dr Singhvi is yet to become a reality throughout India.
(Kir is a student, Campus Law Centre, Faculty of Law, University of Delhi)