• Friday, May 30th, 2014

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBNarendra Modi’s Government is all set to brace the first Lok Sabha session (16th Lok Sabha) on June 4-11 after coming into power. This would enable the Government to spell out crucial Policies and their implementation strategy. This would be more on the side of introductory session where preliminary formalities like swearing the new MPs, appointment of the Speaker, addressing of the Joint Session of the two Houses of Parliament by President Pranab Mukherjee, discussion on the Presidential address, etc would be undertaken. Prime Minister Mr. Narendra Modi will give his reply to the motion of thanks on the Presidential address at the end of the discussion. The Modi Government will have a separate budget session towards the June-end or early-July to present its first full budget.

Everything may go very smooth except the recent Ordinance on Telecom Regulatory Authority of India (TRAI) that cleared the way for appointment of Mr. Nripendra Mishra in the Prime Minister’s Office (PMO) as Modi’s Principal Secretary. The Congress Party contends that the Ordinance for Nripendra Misra’s appointment smacks of “Impropriety”.  It contends that Nripendra Misra, as a former chairman of TRAI was ineligible to join the Government in any position because Section 5(8) of the TRAI Act, 1997, explicitly forbids it.

Some contend that instead of waiting to amend the TRAI Act, 1997 in Parliament, and explaining why it felt the legal bar on post-retirement jobs was too sweeping, the Government issued an Ordinance, so that Misra could report to work. The episode frames a seeming impatience with legal requirements in a case that involves an individual rather than an urgent point of principle. The Modi Government invoked an emergency power given to the Executive to meet an emergent situation, for an individual appointment.

Some also contend that this step of the Government could be the first instance where a Government at the Centre promulgates an ordinance even before proving its majority on the floor of the House, which, incidentally, is a mere formality for the Modi government, with the BJP itself having a simple majority in the Lok Sabha.

Though the BJP, which leads the ruling NDA having 66 members in the Rajya Sabha, has downplayed the controversy raised by the Congress, which leads the UPA having 86 members in the Upper House, experts believe that if the government fails to enlist support of floating parties like the AIADMK (10), BSP (14) and the BJD (5), it will have no option but to convene a Joint Sitting of both the Houses to get the Parliamentary nod on the Ordinance paving way for the appointment of Mr. Misra as principal secretary to the Prime Minister.

The Modi Government is in a minority in Rajya Sabha and if it fails to get the nod of the Upper House on TRAI ordinance, options are still open under Article 108 of the Constitution for a Joint Session of the Parliament to approve it. Article 108(1) of the Constitution provides that if after a Bill has been passed by one House and transmitted to the other House-

(a) The Bill is rejected by the other House; or

(b) The Houses have finally disagreed as to the amendments to be made in the Bill; or

(c) more than six months elapse from the date of the reception of the Bill by the other House without the Bill being passed by it, the President may, unless the Bill has elapsed by reason of a dissolution of the House of the People, notify to the Houses by message if they are sitting or by public notification if they are not sitting, his intention to summon them to meet in a joint sitting for the purpose of deliberating and voting on the Bill:

Provided that nothing in this clause shall apply to a Money Bill.

Article 108(3) provides that where the President has under clause (1) notified his intention of summoning the Houses to meet in a joint sitting, neither House shall proceed further with the Bill, but the President may at any time after the date of his notification summon the Houses to meet in a joint sitting for the purpose specified in the notification and, if he does so, the Houses shall meet accordingly.

Article 108(4) provides that if at the joint sitting of the two Houses the Bill, with such amendments, if any, as are agreed to in joint sitting, is passed by a majority of the total number of members of both Houses present and voting, it shall be deemed for the purposes of this Constitution to have been passed by both Houses: Provided that at a joint sitting-

(a) If the Bill, having been passed by one House, has not been passed by the other House with amendments and returned to the House in which it originated, no amendment shall be proposed to the Bill other than such amendments (if any) as are made necessary by the delay in the passage of the Bill;

(b) If the Bill has been so passed and returned, only such amendments as aforesaid shall be proposed to the Bill and such other amendments as are relevant to the matters with respect to which the Houses have not agreed; and the decision of the person presiding as to the amendments which are admissible under this clause shall be final.

(5) A joint sitting may be held under this article and a Bill passed thereat, notwithstanding that dissolution of the House of the People has intervened since the President notified his intention to summon the Houses to meet therein.

Article 123 of the Indian Constitution empowers the President to promulgate ordinance when Parliament is in recess. As per sources in the Rashtrapati Bhawan the Ordinance regarding Mishra was duly approved by the President Pranab Mukherjee. So there is no “Constitutional Infirmity” with the Ordinance in question. The only question remains about the “Propriety” of Executive action in this regard. That is, at most, a “Moral Issue” and not a Constitutional/Legal one.

There is no doubt that Mr. Mishra is “Qualified and Experience Personnel” and his tremendous expertise would prove handy for not only the PMO but the Country at large. There is also no doubt that “National Interests” should prevail over any “Technical Arguments”. In the ultimate analysis we must analyse what “Potential Benefits” the appointment of Mr. Mishra can bring to our great Nation. I have no doubt whatsoever that the duo of Mr. Nripendra Mishra and Mr. Ajit Kumar Doval can bring “Unforeseen Rewards” for India and they should be allowed to work in a “Free and Non Controversial Manner”. Even those opposing the appointment of Mr. Mishra have no doubt about his caliber and competencies and they are just challenging the way he has been appointed.

If there is any “Constitutional Infirmity” with the Ordinance, then it must be challenged before the Supreme Court of India. If not, then the Ordinance must be challenged before the Parliament of India. However, “Political Impropriety” is hardly a reason and ground to derail the good work and reforms that the duo of Mr. Nripendra Mishra and Mr. Ajit Kumar Doval can bring to India. Of course, this is my “Personal Opinion” and others may disagree with me in this regard.

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