Here is how Parliament can scrap Section 377
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Here is how Parliament can scrap Section 377

Hint: India’s two biggest political parties have to agree with each other for a change.

By Anuka Roy and Hansa Malhotra

Published on :

Arun Jaitley has surprised everyone by coming out in support of scrapping Section 377. But we are twice bitten and very shy – and rather doubtful that the government or any of our elected representatives would put their weight behind decriminalising homosexuality in India.

They have a chance to prove us wrong in the near future, though.

Shashi Tharoor, on November 29, announced on Twitter that he’s going to introduce a Private Member’s Bill to scrap Section 377 in Parliament. Tharoor said he has submitted the Bill 10 days ago and hopes it will be taken up for discussion. While this is a great step forward, there are more than a few hurdles that the Bill will have to cross before it can become an Act – and Section 377, history.  Here, we track the route that the Bill has to go through, examine the many obstacles it will face, and assess the circumstances under which it can be passed in both houses of the Parliament.

First, what is a Private Member’s Bill?

Every Member of Parliament, who is not a minister, is called a Private Member.

In Lok Sabha, generally on Friday, the last two-and-half hours are reserved for discussion of Private Member’s Bills.

  • A one month’s notice along with a copy of the Bill and statement of objective and reason has to be given by the member-in-charge of the Bill. The Speaker can allow a shorter notice period under certain circumstances.
  • Bill, if enacted, involves expenditure from Consolidated Fund of India. So, a financial memorandum estimating the expenditure involved has to be attached to the Bill.
  • After the Bill is complete, it is printed and circulated to all members of Lok Sabha at least two days before introduction.

There is a three-step process after this, starting with what is called the “1st Reading”.

This Committee consists of 15 members and the Deputy Speaker is its Chairman. The Committee is nominated by the Speaker. The functions of the Committee are to allot time to Private Members’ Bills and Resolutions, to examine Private Members’ Bills seeking to amend the Constitution before their introduction in Lok Sabha, 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 the two categories.

The worst thing that can happen to the Bill at this stage is if it is voted into category B – least urgent. Here, it might languish forever, collecting dust till everyone forgets about it, or in this case, till Ramdev finds a cure for homosexuality.

If by some miracle of political intervention, the Bill gets categorised into the most-urgent category, then it takes its baby steps into the big bad world of Bill passing.

2nd Reading

The second reading may seem like a walk in the park, but it isn’t. The Select Committee (where most Bill usually go) is expected to submit its report in three months. However, that may get delayed and it could take as long as six, nine, 12 months, or even more (someone was really obsessed with the number three).

But if the report is submitted on time, the Bill along with the report is tabled in the House. At this stage, amendments can be moved but those “which seek to defeat the purpose of the Bill” are not allowed.

During the voting in the House, if there’s an objection to a clause in the Bill, then it’s sent back to the Select Committee for corrections and the process starts again. One step forward and three steps back. This is going to be a very slow walk to the finish line.

3rd Reading

After the clause–by-clause dissection, the Bill is put to vote as a whole. This is the single-most critical step that will decide the fate of the Bill.  Since this one is not a Constitutional Amendment Bill, it would require a simple majority to be passed. Which essentially means a little more than 272 members have to vote in its favour. The BJP alone has 280 seats in the Lok Sabha – and hence the terms are quite clear. For Tharoor’s Bill to pass, it has to get near unanimous support from the BJP.  Congress’ 45 MPs will never have a better chance to do a noble deed.  (And, of course, it will be great if 219 of the other members support the Bill.)

Mr Jaitley, we hope you’re paying attention. The ball is in your party’s court – Section 377 can only go if you, the BJP, wants it to. And please spare us the “not-the party-line-my-personal-opinion” charade.

If the majority is feeling satrangi, then congratulations! The Bill has moved to the Rajya Sabha.

The math in the Upper House, which has a strength of 245, is much more complex though. Four seats are currently vacant. For the Bill to pass, at least 123 members have to vote in its favour. The Congress, with 67 seats, is the single largest party here, followed by the BJP at 48.  Together they account for 115 seats. So the two along with about 130 members from other parties must come together if Section 377 is to go – or at least for it to have any real chance.

The Rajya Sabha is also free to suggest amendments. However if the amendments are not acceptable to the originating House, a joint sitting of both Houses is called and Bill is then put to vote. And, if they don’t reach a consensus, the Bill is stuck in limbo.

If everything goes well, and both Houses pass the Bill, it is sent to the President. He can either agree to it and sign off the Bill or can send it back to originating house with recommendations. That rarely happens, and we hope it won’t in this case either.

Tharoor’s Bill has a long and bumpy way ahead. If it doesn’t reach its desired destination, you at least know whom to blame: both the Congress and the BJP. It’s worth remembering that back in 2008, Parliament passed 17 Bills in just 12 minutes, as Justice Santosh Hegde pointed out. Clearly there is a way if there is a will.

Update: The piece erroneously mentioned the Bill was a Constitutional Amendment Bill. The error has been corrected.

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