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GS Paper: GS2-01.Indian Constitution-Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure of Constitution

  • Ninth Schedule of Indian Constitution

     

    read:

    [Burning Issue] SC judgement on Reservation not being a Fundamental Right

  • Reservation not fundamental right: SC refuses to hear pleas by TN parties

    What did the Hon’ble Supreme Court rule?

     

    • Article 16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting a discretion on the State Government to consider providing reservations, if the circumstances so warrant.
    • It is settled law that the State Government cannot be directed to provide reservations for appointments in public posts.
    • Similarly, the State is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions.
    • The judgment added that it is for the State Government to decide whether this was necessary.

    What do the precedents say?

    • There are several major Supreme Court judgments that have, in the past, ruled that Articles 15(4) and 16(4) does not provide a fundamental right per se.
    • A five-judge apex court bench, as early as 1962 in the R. Balaji v. the State of Mysore had ruled that Article 15(4) is an “enabling provision”, meaning that “it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary”.
    • The court was hearing a challenge to an order passed by the erstwhile state of Mysore reserving 68 percent of seats in engineering and medical colleges for educationally and socially backward classes and SCs and STs.
    • Five years later, in 1967, another five-judge bench in A. Rajendran v. Union of India reiterated this position, holding that the government is under no constitutional duty to provide reservations for SCs and STs, either at the initial stage of recruitment or at the stage of promotion.
    • Article 16(4), it said, does not confer any right on the citizens and is an enabling provision giving discretionary power to the government to make reservations.
    • The position went on to be reiterated in several other decisions, including the nine-judge bench ruling in Indra Sawhney v. Union of India (1992) and the five-judge bench decision in M Nagaraj v. Union of India (2006).

    What does the judgment mean?

    • Reservations are not rights: The latest judgment is a reminder that affirmative action programs allowed in the Constitution flow from “enabling provisions” and are not rights as such.
    • Not a new legal position: This legal position is not new. Major judgments- these include those by Constitution Benches-note that Article 16(4), on the reservation in posts, is enabling in nature.
    • The state is not bound to provide reservation: In other words, the state is not bound to provide reservations. But if the state provides reservations, it must satisfy the following two criteria-
      • For the backward class: It must be in favor of sections that are backward.
      • Inadequately represented: And inadequately represented in the services based on quantifiable data.

    Consequences of this judgment

    • Possibility of the unequal system: Some may even read into this an inescapable state obligation to extend reservation to those who need it, lest its absence renders the entire system unequal.
    • Possibility of perceptible imbalance: For instance, if no quotas are implemented and no study on backwardness and extent of representation is done, it may result in a perceptible imbalance in social representation in public services.

    Why reservation needed?

    • To correct the historical injustice faced by backward castes in the country.
    • To provide a level playing field for backward section as they can not compete with those who have had the access of resources and means for centuries.
    • To ensure adequate representation of backward classes in the services under the State.
    • For advancement of backward classes.
    • To ensure equality as basis of meritocracy i.e all people must be brought to the same level before judging them on the basis of merit.

    Argument Against Reservation

    • Reservation in state services led to divisions and enmity among government employees, vitiating the atmosphere at workplace.
    • Eradication, not perpetuation of caste was the objective of the reservation policy but Caste Based Reservation only perpetuate the notion of caste in society.
    • Reservation was introduced to ensure that the historically underprivileged communities were given equal access to resources but irrespective of the economic progress they continue to remain socially disadvantaged.
    • Reservation destroys self-respect, so much so that competition is no longer on to determine the best but the most backward.
    • Reservations are the biggest enemy of meritocracy which is the foundation of many progressive countries.
    • It has became a tool to meet narrow political ends through invoking class loyalties and primordial identities.
    • The dominant and elite class within the backward castes has appropriated the benefits of reservation and the most marginalised within the backward castes have remained marginalised.
    • Reservation has become the mechanism of exclusion rather than inclusion as many upper caste poors are also facing discrimination and injustice which breeds frustration in the society.

    Way forward

    • Meanwhile, calls for reform and ret­hinking reservation policies get louder; one question is whether there’s a need to continue with reservation and if benefits have reached targets.
    • The challenge for India is that while many sections of the society remain disadvantaged, political action has resulted in the relative discrimination within reserved groups.
    • As the reservation pie grows larger, in effect, it becomes a method of exclusion rather than inclusion.
    • It is time that India has to make a critical assessment of its affirmative action programs.
    • Simplification, legislative sunsets, and periodic reviews should be important principles in the redesign.

  • Article 1 of the Indian Constitution

    The Supreme Court has ordered that a plea to change India’s name exclusively to ‘Bharat’ be converted into a representation and forwarded to the Union government for an appropriate decision.

    Note:

    Whenever such articles are in news, make sure to revise entire Part. Like in this case Part I –  Articles 1, 2, 3 and 4. See the B2b section.

    What is the issue?

    • The petition seeks an amendment to Article 1 of the Constitution, which says “India, that is Bharat, shall be a Union of States…”
    • It wants ‘India’ to be struck off from the Article.

    Article 1 of the Constitution

    • Article 1 in the Constitution states that India, that is Bharat, shall be a Union of States.
    • The territory of India shall consist of: The territories of the states, The Union territories and Any territory that may be acquired in future.

    The names of the States and the Unions have been described in the First Schedule. This schedule also holds that there are four Categories of State and territories – Part A, Part B, Part C and Part D.

    • Part A – includes the nine provinces which were under British India
    • Part B – princely states consisted of this category
    • Part C – centrally administered five states
    • Part D – Andaman and Nicobar Islands

    Abolishing of these schedules

    • In the seventh amendment of the Constitution in 1956, the distinction between Part A and Part B states was abolished.
    • Subsequently, states were reorganized on a linguistic basis.
    • As a result, several new states were formed, eg. Haryana, Goa, Nagaland, Mizoram etc. At present, there are 28 States and 8 UTs (corrected).

    Debate over name change

    • Bharat and India are both names given in the Constitution. India is already called ‘Bharat’ in the Constitution”.
    • The petition says that India is a name of foreign origin. The name can be traced back to the Greek term ‘Indica’.
    • The word ‘Bharat’ is closely associated with our Freedom Struggle as the cry was ‘Bharat Mata ki Jai’.
    • Chauvinists argue that the name change will ensure citizens to get over the colonial past and instil a sense of pride in our nationality.

    What 2016 ruling has to say?

    • The apex court had dismissed a similar petition in 2016.
    • Then CJI T.S. Thakur orally remarked that every Indian had the right to choose between calling his country ‘Bharat’ or ‘India’.
    • CJI said that the Supreme Court had no business to either dictate or decide for a citizen what he should call his country.

    Back2Basics

    Article 2

    • Article 2 states that the parliament may, by law, admit new states into the Union of India or establish new states on terms and conditions it deems fit.
    • For e.g. the addition of the State of Sikkim by the 35th (1974) and 36th (1975) constitutional amendments.

    Article 3

    • Article 3 empowers the parliament to form a new state by separation of a part of the territory of an established state or to unite two or more states or parts of states or by uniting any territory to a part of any state.
    • This article provides that area of any state can reduced or increased and alter the boundaries or change the name of a state.
    • Even though the state boundaries are subject to change, their area cannot be acquired by a foreign state.
    • There is also a saving clause in the article to protect the rights of the state.
    • The first condition is that no bill for the purpose can be introduced in either house except on the recommendation of the President of India.
    • Second, whether the proposal contains the alternation of the area, boundaries or name of the state mentioned, it has to refer by President to the Legislatures of concerned states, for expressing opinions.
    • Such opinion has to be expressed within a period specified by the President. In any case, the views expressed do not bind the decisions of either the President or the Parliament

    Article 4

    • This article specifies that the laws provided in article 2 and 3, admission/establishment of new states and alteration of names, areas and boundaries etc. of established states, are not to be considered amendments of the Constitution under article 368.
    • It means these can be passed without resorting to any special procedure and by a simple majority.

  • Should Rajya Sabha be abolished?

    This article is about Rajya Sabha, the second chamber of our union legislature. Its utility was intensely debated in the Constituent Assembly. Now, after almost seven decades of its existence, we know that the house has proved its utility. So, what was the reasoning of those who were in support of its creation and what those who opposed its creation had on their mind? How bicameralism is connected to federalism? You’ll come to know the answers to these questions after reading the article.

    Historical background

    • The Rajya Sabha came into being on April 3, 1952 and held its first session on May 13 the same year.
    • The central legislature that came into being under the Government of India Act, 1919 was bicameral.
    • Under 1919 Act, Council of States had 60 members and Legislative Assembly had 145 members.
    • The membership and voting norms for the Council of States were restrictive.
    • These restrictions meant only wealthy landowners, merchants and those with legislative experience could enter it.
    • Women could neither vote nor seek membership.
    • The Government of India Act, 1935 proposed an elaborate and improved version of the second chamber, but this never materialised.
    • The Constituent Assembly, which was formed in 1947, after adoption of the Constitution became the Provisional Parliament and made laws till 1952.

    Bicameralism and the utility of second house

    • Bicameralism is a principle that requires the consent of two differently constituted chambers of Parliament for making or changing laws.
    • This principle came into operation in 1787 with the adoption of the U.S. Constitution.
    • At present, 79 Parliaments of the world (41% of the total number) are bicameral.
    • In The Federalist, the famous essay, it was stated that the second chamber enables a second and reflective expression of representative opinion besides checking the propensity to yield to the impulse of sudden and violent passions.
    • French philosopher Montesquieu who said, “The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting”.
    • Walter Bagehot later noted that the retarding chamber will impede minor instances of parliamentary tyranny, though it will not prevent or really impede revolution.

    Federalism and link with bicameralism

    • Federalism has been in vogue since ancient times when some states got together to confer the power of law-making on a central authority.
    • But modern federalism is entirely different given the complexity of geographical, regional, social and economic diversities marking the constituent units of a federation or a union.
    • It is more so in India. The U.S. is a federation and so is India — each unit has a set of unique features.
    • Federalism and bicameralism are linked because the federal character of a nation comprising constituent units can be reflected in, and secured by, a bicameral legislature.

    Debate in the Constituent Assembly over need for the second house

    • The proposal for the Rajya Sabha as a second chamber was subjected to serious argumentation and had a narrow escape.
    • Opponents’ stand: A member of the Constituent Assembly asserted that an Upper House was not essential and viewed it as a creation of imperialism.
    • Other member warned that such a chamber would only prove to be a “clog in the wheel of progress” of the nation.
    • The proponents’ stand: A supporter of idea felt that it would introduce an element of sobriety and second thought besides lending voice to the constituent units in the legislative scheme of things.
    • Ananthasayanam Ayyangar argued that a second chamber would enable the genius of the people to have full play besides checking hasty legislation.
    • Replying to the debate on the motion N. Gopalaswami Ayyangar had to make a strong case for the second chamber.
    • He argued that the most that we expect the Second Chamber to do is 1) to hold dignified debates on important issues 2) to delay legislation which might be the outcome of passions of the moment until the passions have subsided.

    Consider the question, “Examine the role played by the Rajya Sabha as a law-making body. Do you agree that the Rajya Sabha has been successful in fulfilling the role expected of it by the makers of our Constitution?”

    Conclusion

    The mandate of the Rajya Sabha, as can be gleaned from the Constituent Assembly debates and the experiences of other Parliaments, is legislation — to revise or delay legislation without proving a clog in the wheel of the progress; to represent the interests of the States as a federal chamber, and be a deliberative body holding high-quality debates on important issues.

  • Opportunity to strengthen the 73rd and 74th amendment

    The article brings to the fore untapped potential held by the panchayats and municipalities. However, there is a need for devolution in letter and spirit by the states to tap this potential. The article explains how the panchayats and municipalities could contribute effectively in the fight against Covid-19.

    Cooperative federalism amid COVID-19

    • An unintended but welcome consequence of the struggle against COVID-19 is that the “confrontational federalism” is on the decline with the revival of “cooperative federalism”.
    • There is a realisation that there is no way the COVID-19 situation can be tackled except through a measure of cooperation between the Centre and the states.
    • Consultative process: The Centre is offering flexibility to states to adopt guidelines to their respective circumstances and states are accepting guidelines from the Centre.
    • A principal reason for Kerala’s amazing performance in “flattening the curve” is their robust system of effective devolution. Such devolution helped the Kudumbashree programme to function in association with the panchayats.

    The concept of 3 tier devolution: Centre-State-Panchayats

    • Article 243G provides that state legislatures “may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government”. 
    • This means state governments cannot and must not treat panchayats as extensions of the state government but as “institutions of (local) self-government”.
    • The logic of “cooperative federalism” is that states must function not as implementation arms of the central government but as autonomous units within the federation.
    • By the same logic panchayats too must be conceived not as an extension of state governments but as “units of self-government”. 
    • It is thus that panchayats need to be brought into the three-tier devolution system envisaged in the Constitution: Centre-State-Panchayats (and municipalities).

    How could devolution help in the fight against Covid-19?

    • In line with the rising cooperation between the Centre and the states, the focus should be on further devolution in keeping with the constitutional obligations under the 73rd and 74th amendments.
    • The starting point could best be Entry 23 of the Eleventh Schedule that reads, “Health, sanitation, including hospitals, primary health centres and dispensaries”
    • Entry 23 is among the list of 29 subjects illustratively set out for devolution to the panchayats, subject to conformity legislation being enacted by state legislatures.
    • All state legislation has included this subject for devolution.
    • Therefore, empowering the panchayats in this regard with functions, finances and functionaries is now a statutory obligation under state law under Article 243G.
    • With the migrant workers returning to their native villages, it is important to fully involve village panchayats and municipalities as “institutions of self-government” – 243W in the anti-COVID-19 campaign.
    • Entry 28 of the Eleventh Schedule mentions the “public distribution system” as among the subjects for devolution.
    • There are many other entries in the Schedule that are relevant to this exercise.
    • There is an army of 32 lakh elected representatives in the panchayats and about two lakh more in the municipalities to contribute in the fight against Covid-19.
    • Well over a third of them, some 10-12 lakh, are drawn from the Scheduled Castes and Tribes and, therefore, in touch with the most destitute in every village and town.
    • There are some 14 lakh women who have established themselves by election as village leaders. 
    • Imagine a constructive role such women can play as “front-line workers” in the battle against the coronavirus.
    • The most important requirement is planning to receive the migrant labour influx.
    • Last-mile delivery can only be comprehensively ensured by empowered panchayats and municipalities reporting to their respective gram sabhas and ward sabhas mandated under Articles 243 A and 243 S.
    • Planning for withstanding the ingress of COVID-19 requires the full deployment of the mechanisms for district planning envisaged in Article 243 ZD.

    Consider the question asked by the UPSC in 2018-“Assess the importance of the Panchayat system in India as a part of local government. Apart from government grants, what sources the Panchayat can look out for financing developmental projects?”

    Conclusion

    As the cooperative federalism underlines India’s fight against Covid-19, devolution to the third tier –panchayats and municipalities would give a much needed fillip to the fight against Covid-19.

    Back2Basics: 73rd and 74th Amendments

    • 73rd and 74th Constitutional Amendments were passed by Parliament in December, 1992.
    • Through these amendments local self-governance was introduced in rural and urban India.
    • The Acts came into force as the Constitution (73rd Amendment) Act, 1992 on April 24, 1993 and the Constitution (74th Amendment) Act, 1992 on June 1, 1993.
    • These amendments added two new parts to the Constitution, namely, 73rd Amendment added Part IX titled “The Panchayats” and 74th Amendment added Part IXA titled “The Municipalities”.
    • The Local bodies–‘Panchayats’ and ‘Municipalities’ came under Part IX and IXA of the Constitution after 43 years of India becoming a republic.

    Salient Features

    • Basic units of democratic system-Gram Sabhas (villages) and Ward Committees (Municipalities) comprising all the adult members registered as voters.
    • Three-tier system of panchayats at village, intermediate block/taluk/mandal and district levels except in States with population is below 20 lakhs (Article 243B).
    • Seats at all levels to be filled by direct elections [Article 243C (2)].
    • Seats reserved for Scheduled Castes (SCs) and Scheduled Tribes (STs) and chairpersons of the Panchayats at all levels also shall be reserved for SCs and STs in proportion to their population.
    • One-third of the total number of seats to be reserved for women. Onethird of the seats reserved for SCs and STs also reserved for women. One-third offices of chairpersons at all levels reserved for women (Article 243D)
    • Uniform five year term and elections to constitute new bodies to be completed before the expiry of the term. In the event of dissolution, elections compulsorily within six months (Article 243E).

  • Kesavananda Bharati Case (1973): The judgment that upheld basic structure of India’s constitution

    Exactly 47 years ago, the Supreme Court passed its landmark judgment in Kesavananda Bharati vs State of Kerala, considered among the most significant constitutional cases in India’s judicial history.

    Major judgments of the Supreme Court are mentioned in the newscard. Aspirants are advised to memorize them all with thier key features. UPSC may ask a prelim question mentioning all these judgements and asking which of them are related/not related to the Amendments in the Constitution.  Right from the Shankari Prasad Judgment (1951) to the Ayodhya Judgement (2019), note down all important judgements.

    Background

    Amending  the Constitution

    • The Constitution of a country is the fundamental law of the land. It is based on this document that all other laws are made and enforced.
    • Under some Constitutions, certain parts are immune from amendments and are given a special status compared to other provisions.
    • Since the Indian Constitution was first adopted, debates have raged as to the extent of power that Parliament should have to amend key provisions.

    Early years of Absolute Power

    • In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad (1951) and Sajjan Singh (1965).
    • The reason for this is believed to be that in those initial years, the apex court had reposed faith in the wisdom of the then political leadership when leading freedom fighters were serving as Parliamentarians.
    • In subsequent years, as the Constitution kept being amended at will to suit the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament’s amending power could not touch Fundamental Rights, and this power would be only with a Constituent Assembly.

    Parliament could make any amendment

    • Article 13(2) reads, “The State shall not make any law which takes away or abridges the right conferred by this Part (Part-III) and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
    • In both the cases, the court had ruled that the term “law” in Article 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368.
    • This means Parliament had the power to amend any part of the constitution including Fundamental rights.

    The tussle between Parliament and the judiciary

    • In the early 1970s, the government of then PM Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath.
    • In RC Cooper, the court had struck down Indira Gandhi’s bank nationalization policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.

    Background for the Kesavananda Bharati Case

    • All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case.
    • Here, relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.
    • Since Golaknath was decided by eleven judges, a larger bench was required to test its correctness, and thus 13 judges formed the Kesavananda bench.
    • Critics of the doctrine have called it undemocratic since unelected judges can strike down a constitutional amendment. At the same time, its proponents have hailed the concept as a safety valve against majoritarianism and authoritarianism.
    • Noted legal luminaries Nani Palkhivala, Fali Nariman, and Soli Sorabjee presented the case against the government.
    • The majority opinion was delivered by CJI S M Sikri, and Justices K S Hegde, A K Mukherjea, J M Shelat, A N Grover, P Jaganmohan Reddy, and H R Khanna. Justices A N Ray, D G Palekar, K K Mathew, M H Beg, S N Dwivedi, and Y V Chandrachud dissented.

    A closer win

    • By a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament.
    • The basic structure doctrine has since been regarded as a tenet of Indian constitutional law.

    The judgment in Kesavananda Bharati

    • The Constitutional Bench, whose members shared serious ideological differences, ruled by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’ of the Constitution.
    • The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.
    • The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part.
    • Since then, the court has been adding new features to this concept.

    ‘Basic structure’ since Kesavananda

    • The basic structure doctrine was first introduced by Justice Mudholkar in the Sajjan Singh case (1965).
    • Major features were notably propounded by Justice Hans Raj Khanna in 1973.
    • The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, etc.
    • An example of its application is SR Bommai (1994), when the Supreme Court upheld the dismissal of the governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.

  • No 100% quota for Scheduled Areas

    • A Constitution Bench of the Supreme Court held it unconstitutional to provide 100% reservation for tribal teachers in schools located in Scheduled Areas across the country.
    • The Bench was answering a reference made to it in 2016 on whether 100% reservation is permissible under the Constitution.

    Reservation in India is a system of affirmative action by the State that provides representation for historically and currently disadvantaged groups in Indian society in education, employment and politics. The 10% EWS quota this year has raised the inevitability for a possible mains question.

    No 100% quota

    • The apex court held that it is an obnoxious idea that tribals only should teach the tribals.
    • Merit cannot be denied in toto by providing reservation observed the judgement.
    • Citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.

    Invoking Indira Sawhney judgment

    • The court referred to the famous Indira Sawhney judgment (Mandal case- Indra Sawhney v. Union of India 1992), which caps reservation at 50%.
    • The court held that 100% reservation is discriminatory and impermissible.
    • The opportunity of public employment is not the prerogative of few.
    • A 100% reservation to the Scheduled Tribes has deprived SCs and OBCs also of their due representation.

  • Institutional fixes and the need for ethical politics

    The article discusses the recent event in Madhya Pradesh where a group of legislature resigned bringing down the government. A most important issue arising out such incidents is circumventing of the laws made to avoid such things from happening. Several such issues along with their solutions are described here.

    New method to bypass the anti-defection law

    • The political activities in Madhya Pradesh represent a new method of bypassing the anti-defection law and toppling elected governments.
    • The government in Karnataka was brought down in July last year in a similar manner with 17 MLAs of the ruling coalition resigning and joining the BJP.
    • What method was used? Under this novel method, a set of legislators of the party in power is made to resign from the Assembly to reduce the total strength of the House enough for the opposition party to cross the halfway mark to form the government.
    • In the ensuing by-elections, the members who resigned were then fielded as ruling party candidates (most of whom have been re-elected in the case of Karnataka).
    • The same practice is likely to be repeated in Madhya Pradesh soon.

    A question based on anti-defection law and its implication for healthy debate in the parliament was asked in 2013. And that issues still persist. So, take note of these issues.

    Exploiting the loophole in the Tenth Schedule

    • This method of mass defection circumvents the provisions of the Tenth Schedule of the Constitution (better known as the anti-defection law)
    • What is the Tenth Schedule? The tenth schedule prescribes the grounds for disqualification of legislators: voluntarily giving up party membership and voting or abstaining to vote against party directions.
    • Resignation is not mentioned as a ground for disqualification.
    • However, the Speaker in Karnataka disqualified them for the rest of the Assembly’s term, thereby barring them from contesting the by-polls.
    • While the Supreme Court upheld the disqualification.
    • It stuck down the bar from contesting by-polls.
    • In Madhya Pradesh, since the Speaker has accepted the resignation of the MLAs, the defectors can in any case contest the by-polls.

    Damaging the underpinnings of democracy

    • The recurrence of this model of defection signals the exploitation of the inherent weaknesses of the anti-defection law.
    • While solo legislators jumping ship might have reduced now, “horse-trading” seems to have gone from retail to wholesale.
    • This threatens the underpinnings of India’s electoral democracy since such surreptitious capture of power essentially betrays the people’s mandate in a general election.

    Kihoto case is an important case in relation to the anti-defection law.

    Time to reframe the anti-defection law

    • In this context, it is important to examine whether the anti-defection law fulfils any purpose.
    • This law raises fundamental concerns regarding the role of a legislator in a parliamentary democracy.
    • Issues with the law: It denies the legislator the right to take a principled position on a policy matter and reduces her to an involuntary supporter of the whims of party bosses.
    • Challenge to the constitutionality: The constitutionality of the Tenth Schedule was challenged for violating the Basic Structure of Constitution with regard to parliamentary democracy and free speech.
    • Judicial review of the Speaker’s decision: The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) in a 3-2 verdict upheld the law while reserving the right of judicial review of the Speaker’s decision.

    What are the shortcomings in the anti-defection law?

    • Restriction on the freedom of legislator: The anti-defection law, on the one hand, severely restricts the freedom of a legislator and makes her a slave of party whips.
    • Failure in preventing the horse-trading: On the other hand, it has not been able to meet its primary objective of preventing horse-trading and continues to be circumvented to bring down elected governments.
    • This calls for reforms that address concerns at both ends of the spectrum.

    Following two are the solutions offered here. They are important from Mains point of view. As solutions are often asked for the pressing issues.

    Dinesh Goswami Committee and other suggestion

    • Restrict the scope of the binding whip: For addressing the first issue, as the Dinesh Goswami Committee also suggested, the scope of the binding whip should be restricted to a vote of confidence.
    • For addressing the second issue, it is best to institutionalise the Karnataka Speaker’s decision to bar the defected members from contesting in the ensuing by-poll, if not for a longer period.
    • This will disincentivise MLAs from jumping ship.
    • These reforms would require a constitutional amendment to the Tenth Schedule, an uphill task under the current circumstances.

    Conclusion

    We are facing a deeper challenge of the corrosion of India’s parliamentary system, for even in jurisdictions without such anti-defection laws, we do not see “horse-trading” and “resort politics”. Hence, beyond institutional fixes, we also need a popular articulation of an ethical politics that causes the public to shun such political manoeuvres.

    Back2Basic: What is the Tenth Schedule?

    • The Tenth Schedule was inserted in the Constitution in 1985.
    • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
    • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
    • This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
    • The law applies to both Parliament and state assemblies.
    • Exceptions under the law: Legislators may change their party without the risk of disqualification in certain circumstances.
    • The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
    • In such a scenario, neither the members who decide to merge nor the ones who stay with the original party will face disqualification.
    • Is there any time limit to decide on the matter? The law does not specify a time period for the Presiding Officer to decide on a disqualification plea.
    • Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

  • Supreme Court upholds “Right to discuss COVID-19”

    The Supreme Court has upheld the right to free discussion about COVID-19, even as it directed the media to refer to and publish the official version of the developments in order to avoid inaccuracies and large-scale panic.

    Right to Discuss

    • The Right to Discuss falls under the purview of the right to freedom of speech and expression.
    • Article 19(1)(a) of the Constitution of India states that all citizens shall have the right to freedom of speech and expression.
    • It ensures all citizens the liberty of thought and expression.
    • The exercise of this right is, however, subject to “reasonable restrictions” for certain purposes being imposed under Article 19(2) of the Constitution of India.
    • These restrictions are imposed in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

    Why such a move?

    • The court was responding to a request from the Central government that media outlets, in the “larger interest of justice”, should only publish or telecast anything on COVID-19 after ascertaining the factual position from the government.
    • Any deliberate or inaccurate reporting by the media, particularly web portals, had the serious and inevitable potential of causing panic in a larger section of the society.
    • Any panic reaction in the midst of an unprecedented situation based on such reporting would harm the entire nation.
    • Creating panic is also a criminal offence under the Disaster Management Act, 2005.

  • What is Finance Bill?

    The Parliament has passed the Finance Bill 2020 with 40 amendments without any discussion.

    Highlights of the Bill

    • Among the important amendments included was one enabling the government to raise additional excise duty on petrol by up to Rs 18 per litre and diesel by up to Rs 12 per litre when required.
    • Amendments enabling the taxation of NRIs’ India-controlled income above Rs 15 lakh, and another extending the DDT exemption to REITs and Infrastructure Investment trusts were passed.
    • The Bill also changes the definition of ‘Resident’, as stipulated under the Income Tax Act.
    • Presently, a person is considered a resident of India, i.e. their global income is taxable in India if they are in the country for more than 182 days a year. This has now been reduced to 120 days.
    • The amendments also include provisions for levying TDS of 1 per cent on e-commerce transactions.

    What is a Finance Bill?

    • As per Article 110 of the Constitution, the Finance Bill is a Money Bill.
    • The Finance Bill is a part of the Union Budget, stipulating all the legal amendments required for the changes in taxation proposed by the Finance Minister.
    • This Bill encompasses all amendments required in various laws pertaining to tax, in accordance with the tax proposals made in the Union Budget.
    • The Finance Bill, as a Money Bill, needs to be passed by the Lok Sabha — the lower house of the Parliament. Post the Lok Sabha’s approval, the Finance Bill becomes Finance Act.

    Difference between a Money Bill and the Finance Bill

    1) Money Bill

    • A Money Bill has to be introduced in the Lok Sabha as per Section 110 of the Constitution. Then, it is transmitted to the Rajya Sabha for its recommendations.
    • The Rajya Sabha has to return the Bill with recommendations in 14 days.
    • However, the Lok Sabha can reject all or some of the recommendations.

    2) Finance Bill

    • In a general sense, any Bill that relates to revenue or expenditure is a Financial Bill.
    • The Finance Bill is introduced in Lok Sabha.
    • Rajya Sabha can recommend amendments in the bill. However, the bill has to be passed by the Parliament within 75 days of introduction.

    >Types of Finance Bills

    Type I

    • Financial Bill Cat-1 is a bill which contains any of the matters specified in Article 110 but does not exclusively deal with such matters.
    • For example- a bill which contains a taxation clause, but does not deal solely with taxation under Article 117 (1), has two features in common with a money bill.
    1. It cannot be introduced in the Rajya Sabha.
    2. It can only be introduced in Lok Sabha with the prior recommendation of the President.(Similarities)
    • But has one feature uncommon that is, not being a Money Bill, the Rajya Sabha has the same power to reject or amend such Financial Bill subject to limitation.

    Type II

    • It is a finance bill which merely involves expenditure and does not include any of the matters specified in Article 110.
    • It is an Ordinary Bill and may be initiated in either House and the Rajya Sabha has full power to reject or ament it.
    • It is thus apparent that all Money Bills are Financial Bills but all Financial Bills are not Money Bills.

    Who decides the Bill is a Finance Bill?

    • The Speaker of the Lok Sabha is authorised to decide whether the Bill is a Money Bill or not.
    • Also, the Speaker’s decision shall be deemed to be final.

    Why Finance Bill is needed?

    • The Union Budget proposes many tax changes for the upcoming financial year, even if not all of those proposed changes find a mention in the Finance Minister’s Budget speech.
    • These proposed changes pertain to several existing laws dealing with various taxes in the country.
    • The Finance Bill seeks to insert amendments into all those laws concerned, without having to bring out a separate amendment law for each of those Acts.
    • For instance, a Union Budget’s proposed tax changes may require amending the various sections of the Income Tax law, Stamp Act, Money Laundering law, etc.
    • The Finance Bill overrides and makes changes in the existing laws wherever required.

    What changes can be made via Finance Bill?

    • The most awaited changes in the tax proposals in the Union Budget usually pertain to personal income tax.
    • For taxpayers across the country, the most awaited moment is when the Finance Minister’s speech announces an increase in minimum income threshold, or declares any changes in income tax slabs to make it less costly, or other exemptions.
    • In addition, there might be changes in the rules, procedures, and deadlines for filing tax returns or the payment of tax itself.
    • For instance, there might be a change in the amount of penalty for missing the deadline. Those proposed changes would typically need to be brought in via amending the Income Tax Act.
    • Among other changes, the FM may propose in the Union Budget with regard to the rates or processes for payment or administration of stamp duty levied on various instruments.
    • Such a change would need to be brought in via an amendment to the Stamp Act.
    • Since the introduction of GST, there is no amendment to indirect taxes in the Union Budget, since that is under the purview of the GST Council.