Legal experts point out that Section 48 of FEMA requires that any amendment in the FEMA regulations to be tabled before Parliament for a minimum of 30 days. Former DIPP secretary Ajay Dua explains to CNBC-TV18 that the Lok Sabha Speaker is key to the House initiative on retail FDI.
Below is an edited transcript of the interview on CNBC-TV18.
Q: The TMC and the Left have issued notices against FDI in retail. So even if the Speaker does not admit their motion, will Section 48 of FEMA Rules be invoked by the Opposition to call for a debate and a vote on the matter?
A: A member cannot, just because a delegated authority regulation has been laid on him or her, raise the issue. The Speaker continues to have a critical role to play. In receipt of the notice the Speaker will announce a discussion on the regulations which have been laid on the table of the house. Only if the Speaker allows can a discussion take place.
The Speaker can refer it to a Subordinate Legislation Committee of the Parliament. Those members who are aggrieved or who wish to comment on it may do so before the Parliamentary committee.
Q: What can you expect as far as this issue is concerned in Parliament?
A: It is possible that if a large number of members want a discussion on the subject, the Speaker may agree to allow the discussion to take place. It could be that if the government sensing the sentiment of the House could say that it has no objection to have such a discussion take place in the Parliament in which case, the Speaker may accept the government's suggestion and allow the discussion to take place.
Q: In case this motion is admitted, what kind of a precedent will it set? Would all executive decisions be revisited in Parliament especially when they concern FEMA?
A: If both Houses decide to repeal the regulation which the Reserve Bank makes altogether, it will mean that henceforth no FDI in multi-brand retail will be allowed if the regulation is deleted by the Parliament. Parliament can amend, modify and bring about changes to what the government had proposed because Parliament is a body above the government. If that happens, two things will take place.
One, all that may have happened till the amendment has taken place or till the deletion of the law has come about, anything done is legal that cannot be questioned, that's very clearly spelt out in Article 48 of FEMA- past actions taken are not open to review, but future ones are.
Second, Parliament may well turnaround and say that since some members have an objection, both Houses of Parliament will decide by vote if any changes need to be brought in.
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