FEMA must de discussed, voted in both Houses: Kashyap

Subhash Kashyap, former secretary general, Lok Sabha and constitutional expert, talks on the process and the various scenario that could pan out in both Houses of Parliament if the government allows FDI in multi-brand retail.
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Dec 03, 2012, 10.09 PM | Source: CNBC-TV18

FEMA must de discussed, voted in both Houses: Kashyap

Subhash Kashyap, former secretary general, Lok Sabha and constitutional expert, talks on the process and the various scenario that could pan out in both Houses of Parliament if the government allows FDI in multi-brand retail.

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FEMA must de discussed, voted in both Houses: Kashyap

Subhash Kashyap, former secretary general, Lok Sabha and constitutional expert, talks on the process and the various scenario that could pan out in both Houses of Parliament if the government allows FDI in multi-brand retail.

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All Bill except money Bill require nod of both Houses.

- Subhash Kashyap (Constitutional Expert )

Subhash Kashyap, former secretary general, Lok Sabha and constitutional expert, talks on the process and the various scenario that could pan out in both Houses of Parliament if the government allows FDI in multi-brand retail.

Also read: Parties opposed to FDI, will vote against it: Prakash Karat

Below is the edited transcript of his interview to CNBC-TV18.

Q: Hypothetically, can a motion be phrased in such a way that even if the government looses the vote, it will not have to take backs its decision on allowing 51% FDI in multi brand retail? How crucial is the wording of the motion?

A: Suppose, the motion says that "the House is of the opinion that the decision in regards to foreign direct investment (FDI) may be reconsidered by the government or that the government may reconsider it on the following lines" then it means that the ball is back in the court of the government and government has to take a decision after reconsidering the matter.

There is no positive disapproval of the government decision.
The other possibility is that, the motion categorically disapproves of the government motion and expresses the opinion of the House against the decision taken by the government.

So, unless we know the precise language of the motion it will be difficult to comment. Even if the language shows disapproval, then also it does not legally affect the existence of the government. It does not amount to 'no confidence' in the government. It is an expression of the opinion of the House only with regard to a particular matter.

Q: Opposition parties have invoked Article 48 of Foreign Exchange Management Act (FEMA) and they insist on a vote to modify the FEMA notification on multi-brand retail that was tabled on Friday. While the Opposition parties want this to be taken up in both Houses of Parliament, the government insists that voting on FEMA will be only in Lok Sabha as it does not need a vote in Rajya Sabha. Is the government correct; is this an accurate representation of the rules?

A:  If you look at 234, 235 and 238, the rules of procedures in the Lok Sabha, they are very clear that the amendments have to be debated in both the Houses. If there is a disagreement then the amendment goes from one House to other and back to the other House. It is clearly laid down. However if the government has some rule in view, I have not seen any according to which it is enough to pass sub-ordinate legislation only in one House.

Q: If the voting on the FEMA notification is allowed only in the Lok Sabha, can the opposition parties approach the court if is not allowed in the Rajya Sabha?

A: Infact that would be the only alternative. If the government insists upon their view that it is enough to pass it in one House then the matter would have to go to courts. As it is a matter of interpretation, the courts will interpret it.

However, I think the government should be able to say under which rule they are making these assertions because on principle all legislation, which would include sub-ordinate legislation, has to be passed by both the Houses. The only exception is in the case of money bills where the Lok Sabha has some special rights. So with the exception of money bills, all bills and all legislation including sub-ordinate legislation, that is rules and regulations, must have the approval of both the Houses.

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