Diminishing the Role of Parliament: The Case of the Jammu and Kashmir Reorganisation Bill

As the proceedings started on the morning of 5 August, there were widespread apprehensions of a major move by the government as several political leaders in erstwhile Jammu and Kashmir (J&K), including two former chief ministers, were detained the previous night and there was a blackout of internet, telephone and other communication lines. The List of Business for the day only reflected four bills, along with papers, reports and a statement (Rajya Sabha 2019). One of the bills was the Jammu and Kashmir Reservation (Second Amendment) Bill, 2019, which extends 10% reservation for economically backward groups in educational institutions and public employment alongside the existing reservations in the state.

Papers and reports were tabled at 11 am as per the List of Business for the day (Verma 2019). The chairperson then stated that he had received a letter from the home minister about the Jammu and Kashmir Reservation Amendment Bill. The letter stated that the government wanted to propose more legislations on the “same subject.” Further, chairperson Venkaiah Naidu announced that he had waived the “rule requiring advance notice, circulation beforehand and all,” since the matter was important (Rajya Sabha 2019). In the following paragraphs, I will look at the relevant Rules of Procedure for the Rajya Sabha as well as the directions issued by the chairperson to see how they were applied on 5 August. Based on the evidence, I will argue that the chair might have exceeded his powers in waiving the requirements of rules. In addition, I also detail how the home minister did not respect the authority of the chair when the chair exercised his authority.

Rules and Procedures under Consideration

Rule 69 of the Rules of Procedure mandates that once a bill is introduced, a motion may be moved for it to be considered. However, members can make an objection to this motion if copies of the bill have not been made available to members at least two days prior to its introduction. This rule gives members of Parliament (MPs) time to study the bill and prepare to debate the bill as per its merits and demerits. The rule categorically states that "such an objection shall prevail” unless the chairman waives this requirement and allows the motion to be moved. Thus, it is within the chairperson's power to waive the requirement of a minimum two-day time period between the introduction and consideration of a bill. 

While Rule 69 talks about the procedure once a bill is introduced, Direction 20B talks about the procedure before introduction and provides that a bill has to be circulated at least 2 days prior to introduction (Rajya Sabha Secretariat 2014). The requirement of two days can be waived by the chairperson if reasons are given, but the chairperson cannot waive the requirement of prior circulation altogether. This means that a bill may be circulated 10 minutes before introduction, but there has to be prior circulation. The chair can make no exception for “prior circulation,” but can make exception for prior circulation of two days. Such an exception has to be made on a case-by-case basis and cannot be applied to any future bill. Thus, from a plain reading, neither the Rule nor the Direction in focus provide any power to the chairperson to waive the requirement for prior circulation altogether. 

Chain of Events 

What happened in the Rajya Sabha on 5 August was that the Jammu and Kashmir Reorganisation Bill was introduced without circulation. Even the Supplementary List of Business mentioning the bill was circulated to members after the bill was introduced. As identified by Derek O’Brien, a member of the Rajya Sabha from the All India Trinamool Congress, the bill was introduced at 11:07 am and the list of business reached Members at 11:18 am.

The chain of events, in brief, is as follows: Home Minister Amit Shah stated that in the Revised List of Business he has been permitted to introduce two resolutions and one bill, other than the business printed (Rajya Sabha 2019: 16). There was no Revised List for that day. He then read out the text of the resolution regarding Article 370. O’Brien asked “Where is it listed? Where is it in the List of Business?" (Rajya Sabha 2019: 18). Shah continued and read out the second resolution regarding the Reorganisation Bill. O’Brien and Tiruchi Siva, a member of the Rajya Sabha from the Dravida Munnetra Kazhagam, raised a point of order. The chair did not permit them and instead permitted Shah to introduce the Jammu and Kashmir Reservation Bill. However, Shah introduced a motion for the Reorganisation Bill. All of this happened amidst din and chaos. 

The members opposed this move and the chair clarified that only the reservation bill would be discussed since that was circulated in advance. The other bill would be discussed only after it was circulated. Parliamentary Affairs Minister Prahlad Joshi intervened and claimed that, historically, Rule 69 and Direction 20B were violated more than 33 times (Rajya Sabha 2019: 23). “It is not the first time that we are doing it,” he stated. Law Minister Ravi Shankar Prasad also intervened and claimed that Rule 266 gives the chair full powers to make exemptions (Rajya Sabha 2019: 24). Rule 266 is a residuary power that is applicable only for matters “not specifically provided for in the Rules.” It is under these powers that the chair issues directions. As argued previously, according to the rules and the directions the chair cannot waive the requirement for prior circulation of a bill altogether. However, Prasad invoked Rule 266 since he identified that there have been instances in the past where a bill has been introduced and passed on the same day. It is unclear whether a precedent exists for the circulation of a bill after it was introduced, and for it to be passed the same day it was introduced.  

Past Precedents and “Exceptions”

In the book Practice and Procedure of Parliament, M N Kaul and S L Shakdher note that in the cases of finance bills and "secret” bills, where copies of bills are circulated after introduction, the next motion (for consideration and passing) can only be made when members have had copies of the bill made available to them for at least two days. This requirement can be waived by the speaker after “taking all facts into consideration as also the sense of the house” (Kaul and Shakdher 2016: 625). The authors cite the example of the Reserve Bank of India (Amendment) Bill, which was introduced as a secret bill in 1959. While a minister attempted to explain why the bill needed urgent attention, the house decided to consider it only on the following day. It was postponed further since members took objection to its consideration. The speaker is known to waive the requirement of prior circulation and permit introduction and passing on the same day only in the case of Appropriation Bills (to appropriate funds out of Consolidated Fund of India) because of the urgency (Kaul and Shakdher 2016: 625). 

In the years prior to 1952, circulating bills in advance was not the norm since, generally, members did not oppose bills at the time of introduction (Devi and Gujar 2017). However, many members started suggesting that bills should be circulated “so that they had some idea of the bills before they were called upon to give or refuse permission for the introduction.” As the practice of prior circulation evolved, an interesting example emerged which the current home minister should learn from. In 1956, the Draft State Reorganisation Bill and related proposals (to amend the Constitution) were referred to the state governments. Though the bill and proposals were at the draft stage, the then Home Minister G B Pant chose to share their versions in Parliament (Rama Devi and Gujar 2017: 677). 

Catching the Opposition Unawares

There are no specific rules and procedures in both the Lok Sabha and Rajya Sabha when it comes to “secret bills.” However, based on media reports, the Modi government wanted to introduce the bill in the Rajya Sabha in the manner they did so as to catch the opposition unawares (Moneycontrol 2019). They were confident that the bill would pass in the Lok Sabha, but were concerned that this would give the opposition in the Rajya Sabha a day to strategise. While the contents of the Budget and Finance Bill are also kept secret, commentators have questioned whether this colonial legacy should even be followed anymore (Dhar 2018). However, in the case of the Jammu and Kashmir Reorganisation Bill, it seems that the purpose was to out-manoeuvre the opposition.

When the chair realised what had happened, he clarified that he had asked Shah only to introduce the Reservation Bill as that had been circulated. The chair asked Shah to introduce the statutory resolutions and bill again after circulation. Instead, Shah read out the statutory resolutions. This prompted Vaiko from the Marumalarchi Dravida Munnetra Kazhagam to say "It is killing of democracy, it should not have been permitted … Emergency days have come back” (Rajya Sabha 2019: 35). The two statutory resolutions and the two bills were then opened for discussion together. The discussion mostly centred around Article 370 and a few members spoke of the provisions of the bill. Ghulam Nabi Azad, the leader of the opposition argued that the Reorganisation Bill was a 57-page bill, and that even for a one-page bill there are fights over the submission of amendments (Rajya Sabha 2019: 144).  The chair had earlier permitted members to submit amendments till 12:30 pm and later extended this deadline to 2:30 pm. Agitated by the limited time given, O’Brien called the process a “procedural harakiri” (Rajya Sabha 2019: 235).  

Other members of the Rajya Sabha also raised questions on the process. Ram Gopal Yadav from the Samajwadi Party questioned the move of converting the state of J&K to a union territory, and admitted that he could only read some parts of the bill because it was introduced in haste. Binoy Viswam from the Communist Party of India (Marxist) argued that the “bill came to the House in a conspiratorial manner” (Rajya Sabha 2019: 182). Kapil Sibal from the Indian National Congress claimed that some provisions of the bill were against the law, but did not elaborate. He also argued that the process cannot be called democratic if a minister introduces a bill at 11 am and expects the house to have a good debate on it. It would not be possible since members would not have read it (Rajya Sabha 2019: 216–17). 

To counter the concerns raised by the members, C M Ramesh from the  Bharatiya Janata Party made detailed claims about the conditions under which the Andhra Pradesh Reorganisation Bill was passed. According to him, the doors of the Lok Sabha were closed, every member of Parliament from Andhra Pradesh was removed, and television coverage was stopped. Ramesh argued that the Jammu and Kashmir Reorganisation Bill was not passed in a similar undemocratic manner as all parties and leaders participated in the debate (Rajya Sabha 2019: 205–06). This is an ironic comparison given that it is clear that rules and procedures of the Rajya Sabha were violated. While replying to the debate, though Shah did not respond to all the procedural improprieties mentioned by members, he reiterated Ramesh’s claim. 

Finally, all the clauses—103 in total—and all the five schedules were put to vote together. No member submitted any amendments and the bill was passed. Rule 69 of Rajya Sabha procedures read with Direction 20B issued by the chairperson of the Rajya Sabha was violated. What transpired in the Rajya Sabha on 5 August is unprecedented as far as this author’s research shows. It is, perhaps, safe to say that on that day members of the Rajya Sabha voted on a bill that they could not even read, analyse, or discuss, and approved the conversion of the state of J&K into two union territories.