WHETHER THE PREAMBLE OF THE CONSTITUTION CAN BE AMENDED THROUGH A PRIVATE MEMBER BILL?

THE CONTEXT: A Bill to amend the Preamble to the Constitution has been introduced by a ruling party MP in the Rajya Sabha during the winter session of the Parliament (Dec 04, 2021) amidst protests by Opposition MPs. The winter session also saw the introduction of more than 150 Private Member Bills in the Parliament. In this article, we analyze the various aspects of the Private Member Bills with a special focus on the one introduced to amend the Preamble.

UNDERSTANDING THE MODALITIES OF THE PRIVATE MEMBER BILL

WHAT IS A PRIVATE MEMBER BILL?: 

• A Bill introduced in either House by a Member of Parliament, who is not a Minister, is a Private Member’s Bill.
• The MPs who intend to introduce private member bills have to notify the House Secretariat about the Bill at least a month before and these bills can only be introduced and discussed on Fridays.
• Currently, Private members’ bills have been capped at three bills/per session by an MP.
• If there are multiple private member bills scheduled for a particular Friday in the Lok Sabha, then the Parliamentary Committee on Private Member’s Bills and Resolutions classifies these bills based on their significance and urgency.

REQUIREMENT OF LEGISLATIVE COMPETENCE:

• The first and foremost requirement in the case of a Private Member’s Bill is that it should be within the legislative competence of the Parliament. In other words, the subject of the Bill should relate to the subjects included in the Union or Concurrent List contained in the Seventh Schedule of the Constitution of India.

ATTACHMENT OF MEMORANDUM OF DETAILS:

• Notices of Bills are required to be accompanied by copies of the text of the Bill, together with a Statement of Objects and Reasons, duly signed by the member giving notice.
• A Bill involving expenditure from the Consolidated Fund of India must also be accompanied by a financial memorandum inviting particular attention to the clauses involving expenditure.
• It must also give an estimate of recurring and non-recurring expenditures likely to be involved in case the Bill is passed into law.

THE MANDATE OF PRIOR RECOMMENDATION FOR INTRODUCTION:

• If the Bill cannot be introduced (Articles 3 and 274 ) without the previous sanction or recommendation of the President, the Bill should annex a copy of such sanction or recommendation.
• The notice is not valid until this requirement is complied with and hence cannot be introduced in the House.
• While Article 3 deals with the formation of new states or alteration of names or boundaries of existing States, Article 274 deals with Bills affecting taxation in which states are interested.

MANDATORY RECOMMENDATION FOR CONSIDERATION:

• A Bill which, if enacted, would involve expenditure from the Consolidated Fund of India, cannot be taken into consideration or referred to a Select/Joint Committee unless the member obtains the requisite recommendation of the President for consideration of the Bill under Article 117(3) of the Constitution.
• In the case of such Bills, members-in-charge should obtain the recommendation of the President beforehand to enable them to proceed further with the Bill.

CONSTITUTIONAL AMENDMENT:

• Bills seeking to amend the Constitution, apart from being subject to the normal rules applicable to Private Members’ Bills, have also to be examined by the Committee on Private Members’ Bills and Resolutions and only those Bills which have been recommended by the Committee are put down in the List of Business for the introduction.

COMMITTEE ON PRIVATE MEMBERS’ BILLS AND RESOLUTIONS

The Committee on Private Members’ Bills and Resolutions consists of not more than fifteen members nominated by the Speaker. The term of the Committee is one year. The Deputy Speaker is always included as a member and appointed Chairperson of the Committee. Private Members’ Bills and Resolutions are governed by Rules of Procedure and Conduct of Business in Lok Sabha and of the Directions by the Speaker.

The functions of the Committee on Private Members’ Bills and Resolutions are:

to examine every Bill seeking to amend the Constitution, a notice of which has been given by a private member, before a motion for leave to introduce the Bill is included in the List of Business;
to examine all Private Members’ Bills after they are introduced and before they are taken up for consideration in the House and to classify them according to their nature, urgency, and importance into two categories, namely, category A and category B;
to allot time to Private Members’ Bills and Resolutions for their discussion in the House; and
to perform such other functions in respect of Private Members’ Bills and Resolutions as may be assigned to it by the Speaker from time to time.

MAJOR PRIVATE MEMBER BILLS INTRODUCED IN THE WINTER SESSION OF THE PARLIAMENT

AMENDMENT TO THE PREAMBLE: Dealt with separately. Read Ahead.

REPEAL OF LABOUR CODES:

• The Private Member Bill was introduced in Rajya Sabha by an Opposition MP to repeal the four new Labour Codes being opposed by Trade Union Leaders and Labour law scholars alike.
• Private Bill introduced for repealing the four Labour Codes is called the Labour Codes (Repeal) Bill and it asserts that the new Codes have only diluted the provisions given by the previous Labour Acts, instead of fortifying them.
• Private Bill states that in addition to eliminating the shield of collective bargaining making it more difficult for the workers to assert their rights, the Labour Codes are intrinsically biased towards employers and corporates, emboldening them to violate the rights of workers.

OTHER BILLS INTRODUCED IN RS:

• Among the other private member’s Bills introduced in the RS was the Women’s (Reservation in Workplace) Bill, Bill to amend the Tenth Schedule of the Constitution, setting a three-month limit on deciding matters of disqualification of members under the anti-defection law, and the Population Control Bill, 2021

ANTI LYNCHING BILL:

• The ‘Protection from Lynching Bill’ was introduced in LS by a Congress member Shashi Tharoor that provides for effective protection of constitutional rights of vulnerable persons, to punish acts of lynching, and to have designated courts for expeditious trial of such offenses.

EMPLOYEE WELFARE:

• The ‘Right to disconnect Bill” introduced in LS by an Opposition MP that seeks to establish an employees’ welfare authority to confer the right on every employee to disconnect from work-related telephone calls and emails beyond work hours and on holidays and the right to refuse to answer calls and emails outside work hours.

TAMING THE INTELLIGENCE AGENCIES:

• Another Opposition MP introduced a Bill in LS to regulate the functioning and exercise of the power of Indian intelligence agencies and to provide for coordination, control, and oversight of such agencies.

RAJYASABHA REPRESENTATION FOR THE UT OF CHANDIGARH:

• Demanding that the Union Territory be given representation in the Rajya Sabha, an MP had moved the Private Members’ Bill in LS, saying that the member of the Upper House can be elected by an electoral college consisting of elected members of the municipal corporation of Chandigarh.
• It was mentioned in the Bill that earlier, Delhi councilors used to elect a Rajya Sabha member when there was no Assembly there.

SIGNIFICANCE OF THE PRIVATE MEMBER BILLS

FULFILLING PRIMARY RESPONSIBILITY:

• The primary role of our MPs is to legislate. Yet lawmaking has in practice become the exclusive preserve of the government of the day.
• Through the private member Bills, the MPs are actually doing the work they are elected to do-legislation.
• This is a vehicle that is available to an MP to play his part as an active legislator, in addition to speaking on bills introduced by the government.

ESCAPE THE RIGOUR OF THE ANTI-DEFECTION LAW:

• The anti-defection law basically reduces our MPs to a headcount because the decision of the political party on any piece of legislation is supreme and binding on all MPs in the party.
• The private member Bill route provides a viable alternative for the MPs to present their and their constituencies’ views/needs, which may not attract the wrath of Schedule 10.

OUTLINING POSSIBLE SOLUTIONS:

• MPs choose to use the Private Member Bill route as one more way of demonstrating their competence in not just understanding an issue but also coming up with possible solutions through a legislative proposal.

DEMONSTRATING THE SENSE OF THE HOUSE:

• MPs also believe that this is an important way of signaling to the government the need for legislation on some critical issues.
• Even though the Bill may not be passed, it sometimes brings out the “sense of the House” on an important policy issue, which can then be taken up by the government.
• Before the voting age was reduced from 21 years to 18 years in 1989, there was a private member’s Bill that proposed such a change. The debate on the floor of the House showed that MPs across party lines were in support of such a move. That Bill was not passed, but the government later brought a bill to amend the Constitution to bring about this change.

INDIVIDUAL AND INSTITUTIONAL BENEFITS:

• If more MPs use these opportunities to demonstrate leadership on critical issues on the floor of the House, then it will ensure their effective participation and revitalize the institution of Parliament, which arguably has been losing its sheen.
• This would go some way in addressing the perception that MPs do not do any work once elected.
• This will also help individual MPs prove that they are not mere “rubber stamps” of the political party leadership.

WHAT ARE THE CHALLENGES FACED BY PRIVATE MEMBER BILLS?

Government Bills enjoy greater chances of being accepted by the House than Private Members’ Bills. By convention, the motion for the introduction of a Bill is not opposed. However, there have been instances when the motion for introduction was opposed and also negatived by the House. The chances of a Private Bill becoming the law is minuscule considering only 14 Private Member Bills have become law so far, the last one being the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Bill, 1968, which was passed in 1970.

Further, the government’s backing becomes a must for such a bill to be passed in both Houses, given the numbers are stacked in favor of the ruling party. Often, governments also don’t want to be seen as ceding legislative space to individual MPs. Secondly, there is a general decline in the quality of members entering the House, which has reduced the quality of legislative business. Thirdly, the party structure based on High Command, the ADL, Whip, etc. has undermined the role of individual MPs in the Parliamentary system. Lastly, the MPs are laymen and unlike the Government Bills, they have negligible access to experts’ advice(bureaucracy) and secretarial service, which act as a roadblock in drafting legislation.

THE PRIVATE MEMBER BILL TO AMEND THE CONSTITUTION

 

FEATURES:

• The Bill, titled the Constitution (Amendment) Bill, 2021, seeks to substitute “EQUITABLE” for the word “SOCIALIST” in the Preamble to the Constitution.
• For the words “EQUALITY of status and of opportunity”, the Bill seeks to substitute the following:
• “EQUALITY of status and of opportunity to be born, to be fed, to be educated, to get a job and to be treated with dignity,
• ACCESS to information technology and all its implications, irrespective of caste, creed, social status or income.”
• For the words “FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation”, the Bill seeks to substitute the following, namely: –
• “FRATERNITY assuring the dignity of the individual and the community and the unity and integrity of the Nation
• HAPPINESS, assuring a high gross domestic happiness.”

CONTROVERSY:

• The opposition parties have claimed that Amendment to the Preamble is an attack on the very edifice of the Constitution, “adding that the Bill had not got the President’s prior consent.
• They wanted the Bill to be disallowed because Preamble is part of the “basic structure” of the Constitution and cannot be amended. Amendment to the Preamble is an attack on the edifice of the Constitution, they added.
•  Scholars point out that as the Bill aims to achieve equality of status and opportunity to be born, fed, and educated, apart from guaranteeing jobs and access to information technology, it is possible to suggest that it will involve expenditure from the Consolidated Fund of India, and therefore, will require the President’s recommendation in terms of Article 117(3) of the Constitution.
• It can also be suggested that these promises in the Preamble would involve revenue mobilization through taxation and, therefore, impinge on the states’ interests in the federal set-up. The rigor of Article 274 may, therefore, be attracted, barring the introduction of such a Bill.

CAN THE PREAMBLE BE AMENDED THROUGH A PRIVATE MEMBER BILL?

Before answering this question, it must be to analyze the current position of the Preamble vis-à-vis the Constitutional Amendment. While in the Berubari Union in 1960, the SC held that the Preamble is not a part of the Constitution, in Kesavanada Bharati 1973, it reversed its opinion. The majority in the Kesavananda Bharati case held that the Preamble is a part of the Constitution, and it can be amended, but, Parliament cannot amend the basic features of the Preamble. The court observed, “The edifice of our Constitution is based upon the basic element in the Preamble. If any of these elements are removed, the structure will not survive, and it will not be the same Constitution and will not be able to maintain its identity. The Preamble is amended once in 1976 through the 42nd Amendment Act, which in essence came after the 1973 ruling of the SC. Thus, the Preamble was amended even when it was the part of Basic Structure of the Constitution.
Now the question is whether, through a Private member Bill, the Constitution can be amended. A Private Member can introduce a CAB and is not barred from it except that s/he has to satisfy some conditions as discussed at the beginning of this Article. As the Constitution can be amended in three ways, it depends on the nature of the CAB introduced by the Private Member and the subsequent support/majority they get in passing it into a Constitutional Amendment Act. As also subject to judicial scrutiny as to whether such amendments fall foul of the Basic Structure. Having said that, the attempt to amend the Preamble at this juncture where there is a general lack of faithfulness to the Constitution, especially among the governing class, would be seen as another step towards tinkering with the original Constitution. In any case, the Preamble is neither a source nor a limitation on the power of the executive. Thus such proposed amendments will not serve any purpose but only lead to a political slugfest and legal challenges.

THE WAY FORWARD:

• The Private Member Bills have immense scope for furthering and deepening the participation of individual MPs in the parliamentary process and democratic governance. Thus, the MPs must utilize these opportunities fully, which will contribute towards enhancing the quality of lawmaking.
• The government of the day must have an open mind towards these Bills so that MPs will be encouraged to pilot them, which will reduce the dependency of the government over the administration for lawmaking.
•  It is necessary to provide expert advice, secretarial assistance, knowledge support, etc., for the MPs in a sustained manner. This will help improve the understanding of the MPs concerning critical issues and raise their capacity to formulate relevant legislative proposals.
• It goes without saying that using the Private Member Bill route for scoring political brownie points or to garner publicity will create a negative climate and will undermine the sanctity of this instrument of democracy.

THE CONCLUSION: It is a healthy sign that more than 150 Private Member Bills have been introduced in the 2021 Winter session of the Parliament. But, the chance for success of any of them is highly doubtful given the history. This must be changed. The Private Member Bills are vehicles to channel the grassroots issues into legislative proposals and actual laws. Thus, the governments must encourage and actively support this process. However, using this tool for personal aggrandizement, publicity, or further ideological considerations, as is seen in the Preamble amendment saga, needs to be eschewed.

QUESTIONS:

• What are Private Member Bills? To what extent it can be said that this device has been helpful for MPs from the opposition side to influence the policy decisions of the government of the day.
• “The instrumentality of Private Member Bills serves no purpose as none of them has been passed by the Parliament in the past five decades” Critically Examine
•  “As the Preamble of the Constitution does not confer any right on the citizen, the attempt to add lofty ideals through Amendments is nothing but a waste of political energy and Parliamentary resources”. Comment.

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