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Congress MP Shashi Tharoor’s private member bill decriminalizing homosexuality was voted out even before it was introduced in the Lok Sabha. This was unfortunate since it deserved a discussion at the very least.

By Devender Singh Aswal


One often hears of Bills of private members being introduced in parliament. But what is the fate that awaits them? Well, only a few even come up for consideration and are eventually passed.  In many cases, a Bill, once in discussion, may be carried forward to the next session till discussed conclusively and “talked out” (withdrawn) or passed. Fourteen private member Bills were passed by Parliament between1952-1970. Currently the Rights of Transgender Persons Bill, 2014 piloted by XTiruchi  Shiva  MP  and  passed  by  the  Ra-jya  Sabha  is  under  consideration by the Lok Sabha.

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 It’s seldom that a Bill is voted out by the House even before its introduction. Ordinarily, this is not opposed as no democratic government would like to be seen imposing fetters on discussions in Parliament. If a motion for leave to introduce a Bill is opposed, the Speaker allows brief statements from the member who opposes the motion, and may, without further debate, put the motion for introduction to vote.

THWARTED

Surprisingly, on March 11, when the Indian Penal Code (Amendment), Bill 2016 was sought to be introduced, it met with stout opposition. As Congress MP Shashi Tharoor sought the leave of the House to introduce the Bill, Nishikant Dubey, BJP member from Godda (Jharkhand), demanded a division. No explanatory statements were made about the grounds for opposition. The House proceeded to decide the question before it by recording the votes. As Speaker Sumitra Mahajan put the motion to vote, it was defeated by 58 to 14. Of the 73 people present, one abstained.

NEW DELHI, NOV 26 (UNI):- Congress membersShashi Tharoor coming out at Parliament House on the first day of Winter session, in New Delhi on Thursday. UNI PHOTO-49U
NEW DELHI, NOV 26 (UNI):- Congress membersShashi Tharoor coming out at Parliament House on the first day of Winter session, in New Delhi on Thursday. UNI PHOTO-49U

The moot point is what was so abhorrently obnoxious or constitutionally outrageous with the Indian Penal Code (Amendment) Bill, 2016 that even the demerits of the Bill were not allowed to be touched upon before the motion to introduce was voted and negative? The Bill sought to substitute Section 377 of the IPC which makes voluntary carnal intercourse against the order of nature (read homosexuality) a serious punishable offence to the extent that the offender may be punished with imprisonment for life.

Tharoor’s private member Bill sought to decriminalize consensual sexual acts between consenting adults in private rather than leaving it to interference or interpretation. The Bill also sought to give statutory basis to the progressive judgment of the Delhi High Court in the Naz Foundation vs Government of NCT of Delhi in 2009. It termed Section 377 as an egregious relic of the colonial power rooted in the dated notion of Victorian morality which viewed homosexuality as the worst of crimes.

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https://peacedevelopmentnetwork.files.wordpress.com/2009/11/dr-lm-singhvi-house-of-lords-may-21-2007-30.jpg

The Bill aimed to remove an unwarranted nuisance from the statute book, to safeguard public health and to reinforce the fundamental rights of dignity, autonomy and privacy in keeping with the core fundamental rights enshrined in articles 21, 14 and 15 of the Constitution.

One may debate the statement of objects and reasons of the Bill, and the ostensible intension of the member to raise a debate around the issue. But the Bill deserved discussion though eventually, given the general fate of the Bills of private members, such Bills are talked out. But unfortunately, the legislative proposal was aborted and the debate thwarted as the Bill could not be introduced as the majority negatived the motion seeking the leave of the House.

 

According to well established parliamentary convention, the motion for introduction is not ordinarily opposed. Those who intend to oppose introduction have to write to the Speaker in advance and submit the ground of such opposition. While ascertaining the will of the House on the introduction of the Bill, if there is opposition, the member, who moves the motion and the member who opposes, is permitted by the Chair to make a brief explanatory statement for and against, thereafter the motion is put to vote.

However, in case the ground of opposition raises the vital issue of legislative competence of Parliament to enact such a law, the Speaker permits full discussion. For instance, in 1963, when the motion for leave to introduce the Official Language Bill was moved, Dr LM Singhvi opposed the motion on the ground that it contravened the Constitution. The Speaker permitted discussion with respect to the legislative competence of the House, as the Chair cannot decide the question of legislative competence. Thereafter leave was granted to introduce the Bill.

Similarly, the motion for introduction of the Constitution (24th Amendment) Bill, 1970 relating to privy purses and privileges of former rulers of Indian states was opposed on the ground that it was violative of the Constitution. A discussion on the legislative competence of the House was allowed to enact the proposed legislation. After the Law Minister replied to the points raised, the Speaker ruled that Parliament was competent to enact the legislation. Thereafter, leave was granted and the Bill introduced.

TALKED OUT

The Bills of Private Members are eventually talked out to avoid a floor test at the stage of passing since it would be voted out. In parliamentary parlance, all members, except ministers, are private members. Under the Rules of Business, two and half hours in the Lok Sabha and the entire later half in the Rajya Sabha, of every alternate Friday are earmarked for the Bills of private members.

To prevent introduction of a legislative proposal so as to scuttle debate in Parliament is a matter of serious worry as it militates against the ideals of a liberal democracy. It also hinders legislative reforms and dents the image of Parliament as the highest forum of debate and discussion. A member is, first and foremost, a legislator and when the government is unable to fill the legislative want in a given field, the private members can play catalyst by articulating a wide array of public opinion in Parliament by bringing legislative proposals.

The obvious purpose is to expose inadequacies in the legal system and to elicit attention of the government to plug the loopholes by amending the extant law or to enact a new legislation and fill the legislative void.

In that context it was unfortunate that Shashi Tharoor’s private member bill was talked out.

—The writer is author of Parliamentary Questions and additional secretary, Lok Sabha

BOX ITEM: “World’s largest hypocrisy”

My late father, Chandran Tharoor, used to tell me more than five decades ago that India is not just the world’s largest democracy, it is also the world’s largest hypocrisy. The wisdom and accuracy of his perception was again on display when my second attempt to introduce a Private Member’s Bill to amend Section 377 of the Indian Penal Code was defeated in the Lok Sabha yesterday.

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Here was the spectacle of a parliamentary democracy refusing to entertain debate – the ruling party using its brute majority to defeat a motion without even a discussion. How can a deliberative legislature in what claims to be the temple of democracy dismiss an issue out of hand without even hearing the arguments in its favour or against it?

And to add to the hypocrisy, nowhere in over two thousand years of recorded texts is there any evidence that the Indian ethos was intolerant of sexual difference or gender orientation.

In proposing to amend Section 377, I had explained that we shouldn’t have a law on the books that can be used to oppress and harass innocent people conducting their personal lives in private. What two people do to express their love and desire for each other should be strictly between them.

Many MPs from several parties who had promised support simply didn’t show up: it was clearly more important for them to do other things on a Friday afternoon, including travelling to their constituencies for the weekend, than to vote for this Bill.

As I back off my efforts, I am proud of having tried, and happy that the ball is now firmly in the Supreme Court.

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