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GS Paper: Parliament & State Legislatures

  • What is a Private Member’s Bill?

    Opposition members protested against the introduction of a private member’s Bill on the repeal of The Places of Worship (Special Provisions) Act, 1991, in the Rajya Sabha.

    Private Member’s Bill

    • A private member’s Bill is different from a government Bill and is piloted by an MP who is not a minister. An MP who is not a minister is a private member.
    • Individual MPs may introduce private member’s Bill to draw the government’s attention to what they might see as issues requiring legislative intervention.

    Difference between private and government Bills

    • While both private members and ministers take part in the lawmaking process, Bills introduced by private members are referred to as private member’s Bills and those introduced by ministers are called government Bills.
    • Government Bills are backed by the government and also reflect its legislative agenda.
    • The admissibility of a Private Bill is decided by the Chairman in the case of the Rajya Sabha and the Speaker in the case of the Lok Sabha.
    • Before the Bill can be listed for introduction, the Member must give at least a month’s notice, for the House Secretariat to examine it for compliance with constitutional provisions and rules on legislation.
    • While a government Bill can be introduced and discussed on any day, a private member’s bill can only be introduced and discussed on Fridays.

    Has a private member’s bill ever become a law?

    • No private member’s Bill has been passed by Parliament since 1970.
    • To date, Parliament has passed 14 such Bills, six of them in 1956.
    • In the 14th Lok Sabha, of the over 300 private member’s Bills introduced, roughly four per cent were discussed, the remaining 96 per cent lapsed without a single dialogue.
    • The selection of Bills for discussion is done through a ballot.

    Back2Basics: Places of Worship Act, 1991

    • It was passed in 1991 by the P V Narasimha Rao-led government.
    • The law seeks to maintain the “religious character” of places of worship as it was in 1947 — except in the case of the Ram Janmabhoomi-Babri Masjid dispute, which was already in court.
    • The law was brought in at the peak of the Ram Mandir movement, exactly a year before the demolition of the Babri Masjid.
    • Introducing the law, then Home Minister S B Chavan said in Parliament that it was adopted to curb communal tension.

    What are its provisions?

    The objective of the law describes it as an Act to prohibit conversion of any place of worship.

    • It aims to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August 1947, and for matters connected therewith or incidental thereto”.
    • Sections 3 and 4 of the Act declared that the religious character of a place of worship shall continue to be the same as it was on August 15, 1947.
    • No person shall convert any place of worship of any religious denomination into one of a different denomination or section.
    • Section 4(2) says that all suits, appeals or others regarding converting the character of a place of worship, that was pending on August 15, 1947, will stand abated when the Act commences and no fresh proceedings can be filed.
    • However, legal proceedings can be initiated after the commencement of the Act if the change of status took place after the cut-off date of August 15, 1947.

    What does it say about Ayodhya, and what else is exempted?

    • Act does not to apply to Ram Janma Bhumi Babri Masjid.

    Besides the Ayodhya dispute, the Act also exempted:

    • any place of worship that is an ancient and historical monument or an archaeological site, or is covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958;
    • a suit that has been finally settled or disposed of;
    • any dispute that has been settled by the parties or conversion of any place that took place by acquiescence before the Act commenced.

    What has the Supreme Court said about the Act?

    • In the 2019 Ayodhya verdict, the Constitution Bench led by former CJI Ranjan Gogoi referred to the law and said it manifests the secular values of the Constitution and strictly prohibits retrogression.
    • In providing a guarantee for the preservation of the religious character of places, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past.
    • The law addresses itself to the State as much as to every citizen of the nation. Its norms bind those who govern the affairs of the nation at every level.
    • Those norms implement the Fundamental Duties under Article 51A and are hence positive mandates to every citizen as well.

    Why is the law under challenge?

    • A politician has challenged the law on the ground that violates secularism.
    • He has also argued that the cut-off date of August 15, 1947, is “arbitrary, irrational and retrospective” and prohibits Hindus, Jains, Buddhists, and Sikhs from approaching courts to “reclaim” their places of worship.
    • Such places, he argued, were “invaded” and “encroached” upon by “fundamentalist barbaric invaders”.
    • The right-wing politicians have opposed the law even when it was introduced, arguing that the Centre has no power to legislate on “pilgrimages” or “burial grounds” which is under the state list.
    • Another criticism against the law is that the cut-off is the date of Independence, which means that the status quo determined by a colonial power is considered final.

     

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  • No inner-party democracy

    Context

    The ousting of Boris Johnson as leader of the British Conservative Party is the latest in a series of coups periodically mounted by the party’s MPs. What is instructive about this whole process, however, is how much power ordinary MPs have over the Prime Minister.

    Lack of inner-party democracy in India

    • A Prime Minister in UK has to be able to maintain the confidence of his own backbencher MPs at all times or risk political oblivion.
    • If there is a sense that the leader is no longer acceptable to the country, then a well-oiled machine springs into action to protect the party’s electoral gains by providing fresh leadership.
    • In India, PM exercises absolute authority over party MPs, whose ability to even diverge slightly from the official government line on routine policy matters is almost non-existent.
    • Impact of anti-defection law: The Prime Minister’s power is strengthened by India’s unique anti-defection set-up, where recalcitrant MPs who do not manage to carry two-thirds of their colleagues with them can always be disqualified.
    • Lack of autonomy: In effect, MPs do not enjoy any autonomy at all to question and challenge their party leadership.
    • Prime Ministers or Chief Ministers at the State level are chosen by party high command, and then submitted to MPs/MLAs to be rubber stamped.

    Way forward

    • Strengthening local constituency party:  It is time for India to seriously consider empowering its elected representatives, to ensure accountability for party leadership.
    • MPs in the U.K. are able to act boldly because they do not owe their nomination to the party leader, but are selected by the local constituency party.
    • In India, however, it is the party leadership that decides candidates, with an informal consultation with the local party.
    • Amending anti-defection law: Neither do MPs in the U.K. stand a risk of disqualification if they speak out against the leader, a threat perpetuated in India through the anti-defection law.
    • These factors are the biggest stumbling blocks towards ensuring inner-party democracy in India.
    • System on the lines of 1922 Committee in UK: In U.K. where individual Conservative MPs write to the 1922 Committee (which comprises backbench MPs, and looks out for their interests) expressing that they have “no confidence” in their leader.
    • If a numerical or percentage threshold (15% of the party’s MPs in the U.K.) is breached, an automatic leadership vote is triggered, with the party leader forced to seek a fresh mandate from the parliamentary party.
    •  Of course, the only way such a model would work is if an exception is made to the anti-defection law.

    Conclusion

    Inner-party democracy is a essential for keeping the spirit of democracy alive. Westminster model dictates that control over candidates must shift from central party leaders to local party members.

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  • Curtailing ‘unparliamentary’ expressions could stifle voice of MPs

    Context

    The Lok Sabha secretariat recently released a booklet of unparliamentary words that will henceforth be banned and if used, will be expunged, it created an uproar among the opposing parties.

    Historical Background

    • In the early days of parliamentary functioning in England, members would challenge one another to a duel if they felt dishonoured by another member’s speech.
    • It led to the Speaker of the House of Commons removing the offending words from the written proceedings.
    • In 1873, the constitutional theorist Erskine May started recording words and expressions that the Speaker considered unparliamentary in an eponymous guide to parliamentary procedure.
    •  Later editions of the book laid down the principle of parliamentary language.

    Who decides the nature of a word

    • MPs have freedom of speech in Parliament.
    • But the presiding officers of Parliament have the final authority on what gets recorded in the day’s proceedings.
    •  MPs can also draw attention to any unparliamentary words and urge the chair to delete them.
    • Any reporting of the parliamentary discussion that includes the deleted portion is a breach of parliamentary privilege and invites the ire of the House.
    • Deleted words are then added by the parliament secretariat to its compilation of unparliamentary expressions.
    • Why context is important? In any language, the context in which an individual uses a word is critical.
    • “Context” means how the word is said, the circumstances in which it is said and when it is said.

    Issues with addition of unparliamentary words

    • Effectiveness of measure: The first issues about the list is its effectiveness in maintaining decency in parliamentary debates.
    • Impact on the debate: The second that that needs to be considered is the effectiveness of such a list help in promoting or stifling discussion.
    • Role of technology: Technological advances have ensured that Parliament can no longer control how its proceedings are recorded and disseminated.
    • As a result, even if Parliament edits its record, the unparliamentary expression will be available online.
    • In such a scenario, a compilation of the words classified as unparliamentary will not deter an MP from using them.

    Conclusion

    Parliament is all about the cut and thrust of debate. And in a political discussion, a restriction of unparliamentary expression, without considering context, will unnecessarily stifle the voices of MPs.

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  • Parliamentary language in the digital age

    Context

    Language not only changes across region but also profession. Similarly, Parliament, too, has its own list of absurd and archaic phrases.

    Debate over expunged words

    • Today there is much debate on language again after the Lok Sabha Secretariat compiled a list of 151 words, which have been expunged in 2021 and 2020 in Parliaments across the Commonwealth countries and State Assemblies in India.
    • Many of these words may look harmless, but in a heated exchange between parliamentarians, they may not exactly be virtuous.
    • The current compilation has especially caused consternation among Opposition parties which see this as an attempt to restrict their vocabulary.
    • The government argues that this list is at best only “instructive” and not “definitive”.
    • The preface of the document states that the context in which these words were used is far more important than the words themselves.
    • Ultimately, the final call of whether a word is “unparliamentary” or not lies with the presiding officer of the House.
    • In the first two decades of the Indian Parliament, English was the primary language used for parliamentary work.
    • This changed as the social composition of Parliament changed from the 1970s onwards.
    • At present, as many as 30 languages are used by parliamentarians during speeches, with many insisting on speaking their mother tongue during crucial debates.
    • Perhaps, the next such compilation will also have words expunged from different regional languages.

    Challenges in digital age

    •  The proceedings of both Houses of Parliament are relayed in real time on TV channels and YouTube.
    • There have been instances where live transmission has been halted on the Chair’s orders.
    • To circumvent this, many members have recorded the proceedings on their mobile phone cameras.
    • There are many instances of the Chair intervening and expunging words or phrases that it finds “objectionable”.
    • Herein lies the problem. The order of the Chair is often relayed by late evening to reporters, but by then, the video clip would have already been circulated many times over.
    • Print reporters are careful and abide by the orders, but in a digital ecosystem, this is not easy.

    Conclusion

    The problems posed to the Parliament in terms of language and words should be dealt with keeping in focus the freedom of speech of the members.

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  • Reasons for splits and switches in political parties

    Context

    In Maharashtra, recently, and in Madhya Pradesh, a while ago, splits in the ruling party and a subsequent realignment of legislators inaugurated new governments.

    Challenges to the effectiveness of anti-defection law

    • Splits and switches are commonplace in legislatures across the globe, and India has witnessed at least three distinct waves.
    • The first wave occurred towards the latter half of the 1960s when challengers to the Congress attempted to displace it in the States.
    • An attempt to end defections: The next phase was inaugurated with an attempt to end the free movement and regulate the behaviour of legislators through the anti-defection law.
    • Law incentivise collective defection: While the law discouraged individual movement, it incentivised a collective movement of legislators since it laid down specific numbers to legitimise and validate party switches.
    • Defeating the purpose: When legislators switch in groups, the costs are shared, and the move also appears less opportunistic, which in many ways defeats the purpose of the legislation.
    • The third phase was inaugurated in 2014 when already-dominant parties began to use splits and switches to weaken and destroy their competitors.
    • Therefore, the current phase is bizarre when compared to the past because dominant parties appear to be actively cheering splits and shifts and having no respect for the basic rules of the game.
    • The anti-defection law and control of institutions are now weaponised by dominant parties to intervene in the internal working of Opposition parties, and sometimes make and break them.
    • Furthermore, legislators are switching support even if it does not count to the making or maintenance of governments.

    Argument against the split

    • Violation of trust: Switchers violate the trust relationship with their constituents as voters get something other than what they bargained for.
    • Difficulty in ensuring accountability: Assuming voters vote for parties and not candidates, the argument is that uncohesive parties make it difficult for voters to draw definitive lines of responsibility.
    • Consequently, it is difficult for voters to hold party governments accountable for their actions during elections.

    Why do legislators split and switch parties?

    • Changes and transformation in parties: While we keep track of party system change, we ignore the point that the component parts, parties which make up the system, too change and transform.
    • Parties constantly adapt new modes to sustain and find success for themselves.
    • Our popular image of a party is that of the classical mass party, which rises from societal movements and is essentially internally democratic.
    • This is what even the Election Commission of India imagines a party should be since many of its guidelines lay stress on the ‘democratic spirit’ and the need for transparency and participation in internal decision-making.
    • Centralised structure: Today’s parties are centralised vote-getting machines which primarily work to ensure the return of political leaders to office.
    • Focus on getting votes: Mass inputs and ideas do not matter, and it is the central leadership that counts. All party activities begin and end with elections.
    • Since parties are mainly concerned with electoral success, anyone who enjoys the confidence of the top leadership and can help increase the seat share is likely to get a ticket.
    • Dominance of financial power: Moreover, we now know that parties prefer candidates who bring in their own money, fund other candidates and raise resources for the party. All this puts the party on the ground in the shade.
    • Closeness of parties to state: the most significant change is that parties are more closely aligned with the state rather than civil society.
    • Parties as a source of services: Parties exchange material and psychological rewards, and goods and services the state provides for electoral advantage.
    • Voters also see parties as a supplier of services.
    • This connection pushes legislators and parties to be in government or at least close to the government.
    • On the supply side, the party on the ground no longer calls the shots; parties are election vehicles and a supplier of services. The party bond exists only as long as it ensures success for the legislator
    •  On the demand side, the voter does not appear to have any problem, as long as “services” are available.

    Conclusion

    Splits and switches are not seen as objectionable by legislators and are not punished by voters as well. Legislators will, therefore, be willing to do anything if the benefits exceed the costs.

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  • Parliamentary Committee opposes Mediation Bill

    The Parliamentary Standing Committee on Law and Justice has recommended substantial changes to the Mediation Bill.

    Mediation Bill, 2021

    • Mediation is a voluntary dispute resolution process.
    • It is an informal, confidential, flexible, and non-binding process in which an impartial person called a “mediator” helps the parties to understand the interests of everyone involved, and their practical and legal choices.
    • The Bill requires persons to try to settle civil or commercial disputes through mediation before approaching any court or tribunal.
    • Agreements resulting from mediation will be binding and enforceable in the same manner as court judgments.

    Key features of the Bill

    (1) Pre-litigation mediation

    • Parties must attempt to settle civil or commercial disputes by mediation before approaching any court or certain tribunals.
    • Even if they fail to reach a settlement through pre-litigation mediation, the court or tribunal may at any stage refer the parties to mediation if they request for the same.

    (2) Disputes not fit for mediation

    • The Bill contains a list of disputes which are not fit for mediation.
    • These include disputes: (i) relating to claims against minors or persons of unsound mind, (ii) involving criminal prosecution, and (iii) affecting the rights of third parties.
    • The central government may amend this list.
    • It will apply to mediations conducted in India: (i) involving only domestic parties, (ii) involving at least one foreign party and relating to a commercial dispute (i.e., international mediation).

     (3) Mediation process

    • Mediation proceedings will be confidential, and must be completed within 180 days (may be extended by 180 days by the parties).
    • A party may withdraw from mediation after two sessions.
    • Court annexed mediation must be conducted as per the rules framed by the Supreme Court or High Courts.

    (4) Mediators

    • Mediators may be appointed by: (i) the parties by agreement, or (ii) a mediation service provider (an institution administering mediation).
    • They must disclose any conflict of interest that may raise doubts on their independence.
    • Parties may then choose to replace the mediator.

    (5) Mediation Council of India

    • The central government will establish the Mediation Council of India.
    • The Council will consist of a chairperson, two full-time members (with experience in mediation or ADR), three ex-officio members (including the Law Secretary, and the Expenditure Secretary), and a part-time member from an industry body.
    • Functions of the Council include: (i) registration of mediators, and (ii) recognising mediation service providers and mediation institutes (which train, educate, and certify mediators).

    (6) Mediated settlement agreement

    • Agreements resulting from mediation (other than community mediation) will be final, binding, and enforceable in the same manner as court judgments.
    • They may be challenged on grounds of: (i) fraud, (ii) corruption, (iii) impersonation, or (iv) relating to disputes not fit for mediation.

    (7) Community mediation

    • This may be attempted to resolve disputes likely to affect the peace and harmony amongst residents of a locality.
    • It will be conducted by a panel of three mediators (may include persons of standing in the community, and representatives of resident welfare associations).

    Issues highlighted by the Parliamentary Committee

    • Compulsion: The panel cautioned against making compulsory pre-litigation mediation.
    • Scope for Delay: Making pre-litigation mediation mandatory may actually result in delaying of cases.
    • Judicial intervention: The provision to give higher courts the power to frame rules for mediation was also questioned.
    • Narrower scope: The members questioned the non-applicability of the provisions to non-commercial disputes involving the Government and its agencies.
    • No bar of experienced professionals: The MCI, established to regulate the profession of mediators, may not have representation of practising mediators with adequate experience.
    • Prior approval from centre: The MCI requires prior approval from the central government before issuing regulations related to its essential functions.  It is not clear why such prior approval is required.
    • Domestic conduct of mediation: The Bill applies to international mediations only if they are conducted in India and not outside.

    Why need a law on Mediation?

    • Fast: Because the amount of time necessary for the parties and therefore the Mediator to organize for the mediation is significantly way less as that needed for trial or arbitration, a mediation of dispute can occur relatively early.
    • Flexible: There exists no set formula for mediation. Different Mediators employ different styles. Procedures are often modified to satisfy the requirements of a specific case.
    • Cost Efficient: Because mediation generally requires less preparation, is very less formal than trial or arbitration, and may occur at an early stage of the dispute.
    • Brings Parties Together: Parties can save and sometimes rebuild their relationship like during a family dispute or commercial dispute.
    • Convenient: The parties can control the time, location, and duration of the proceedings to large extent. Scheduling isn’t subject to the convenience of courts.
    • Creative: Resolutions that aren’t possible through arbitration or judicial determination could also be achieved.
    • Confidential: What’s said during mediation are often kept confidential. Parties wishing to avoid the glare of publicity can use mediation to stay their disputes low-key and personal
    • Control: The parties control the result of the mediation and either party has the advantage of terminating the mediation, if it’s felt that it’s not within the interest of the said party.

     

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  • Do not weaken the anti-defection law

    Context

    The political developments in Maharashtra throw up troubling questions about how the political class is weakening the anti-defection law.

    Background of the anti-defection law

    •  It was enacted as the Tenth Schedule of the Constitution of India, in 1985, under Rajiv Gandhi’s premiership.
    • The law as it was enacted provided for the disqualification of a legislator belonging to a political party if he voluntarily gave up his membership of his party or if he defied the whip of his party by voting contrary to its directions in the legislative house.
    • Two exceptions: Initially, there were two exceptions provided in the schedule which would exempt a legislator from disqualification.
    • 1] Split: The first exception was a split in their original political party resulting in the formation of a group of legislators.
    • If the group consisted of one third of such legislators of that party, they were exempted from disqualification.
    • This exception was deleted from the schedule through a Constitution Amendment Act of 2003 because of frequent misuse.
    • 2] Merger: The second exception was ‘merger’ which can be invoked when the original political party of a legislator merges with another party and not less than two thirds of its legislators agree to such a merger.

    Interpretation of term ‘merger’ and issues with it

    • It is this second exception contained in paragraph four of the schedule which has been taken recourse to by a large number of legislators across States and even in Parliament to defect to the ruling party.
    • These legislators interpreted for themselves the term ‘merger’ to mean the merger of two thirds of legislators.
    • Now, the same is being repeated in Maharashtra.
    • But there is a little difference here.
    • It appears that the dissidents of Shiv Sena believed that if they get the two third number they can form a separate group and topple the government and then form a government with the help of the Bharatiya Janata Party.
    • The law imposes the condition of merger of the original political party.
    • However, a recent judgment of the Goa Bench of the Bombay High Court ( Girish Chodankar vs The Speaker, Goa State Legislative) that held that the merger of two thirds of Members of the Legislative Assembly is deemed to be the merger of the original party seems to have given them a ray of hope.
    • So, the legal position is if the dissidents do not merge with another party they will be disqualified now or later.

    Question of disqualification

    • Disqualification petitions have been filed by the Shiv Sena against 16 of the dissidents under paragraph 2(1)(a) on the ground that they have voluntarily given up the membership of the party.
    • The question of whether they have voluntarily given up the membership of the party is decided on the basis of the conduct of a member.
    • In Ravi S. Naik vs Union of India (1994), the Supreme Court had said “an inference can be drawn from the conduct of a member that he has voluntarily given up the membership of the party.

    Weakening the anti-defection law

    • Unprincipled defection: The ongoing developments in Maharashtra have once again brought before the country the reality of what the Supreme Court also described as the political evil of unprincipled defection.
    • But the order of the Supreme Court, on June 27, on petitions from the dissidents in the Shiv Sena, gives undue advantage to the dissident legislators.
    • The Court has granted them a longer time to submit replies than the rules mandate.
    • This order is going to set in motion certain political developments which will resurrect in a big way what the Supreme Court characterised as political evil.
    • The intervention by the Supreme Court too has thrown up some crucial question.
    • Kihoto Hollohan case: The first question is whether the Court can intervene at a stage prior to the decision by the Deputy Speaker.
    • A Constitution Bench of the Supreme Court had held in Kihoto Hollohan (1993) that judicial review cannot be available prior to the making of a decision by the Speaker nor at an interlocutory stage of the proceeding.
    •  The notice of no-confidence against the Deputy Speaker has added another piece to the jigsaw puzzle.
    • Nabam Rebia case: The Supreme Court had held in Nabam Rebia (2016) that the Speaker shall not decide the disqualification cases till the no-confidence motion against him is disposed of.
    • The House rules clearly say that the notice of no-confidence against the Speaker/Deputy Speaker needs to be admitted in the first place which is done only by the Speaker.
    • But it is the House which takes the final decision on the motion. If the notice of no-confidence does not contain specific charges, it can be disallowed by the Speaker. 
    • Further, the notice can be given only if the House is summoned.
    • When the notice was given, the Assembly was not convened. So, the notice against the Deputy Speaker can have no validity under the rules.

    Conclusion

    The law, though not perfect, is a serious attempt to strengthen the moral content of democracy. There will be shortcomings in this Bill but as we see and identify those shortcomings we should try to overcome them.

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  • The anti-defection law — political facts, legal fiction

    Context

    The ongoing political crisis in Maharashtra, and many others before it, are grim reminders of what the Tenth Schedule can and cannot do.

    About 10th Schedule

    • In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution.
    • But its enactment was catalyzed by the political instability after the general elections of 1967.
    • This was the time when multiple state governments were toppled after MLAs changed their political loyalties.
    • The purpose of the 1985 Constitution Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected.
    • The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.

    Provisions of the 10th Schedule

    • Instances of floor crossing have long gone unchecked and unpunished.
    • In part, this can be attributed to the exemption given to mergers between political parties which facilitate bulk defections.
    • Disqualification provision: The second paragraph of the Tenth Schedule allows for disqualification of an elected member of a House if such member belonging to any political party has voluntarily given up membership of their party, or if they vote in the House against such party’s whip.
    • Exceptions: Paragraph 4 creates an exception for mergers between political parties by introducing three crucial concepts — that of the “original political party”, the “legislature party”, and “deemed merger”.
    • What is the legislature party?  It means the group consisting of all elected members of a House for the time being belonging to one political party.
    • Original political party: An “original political party” means the political party to which a member belongs (this can refer to the party generally, outside of the House).
    • Paragraph 4 does not clarify whether the original political party refers to the party at the national level or the regional level.

    How Paragraph 4 of the 10th Schedule deals with mergers?

    • Paragraph 4 is spread across two sub-paragraphs, a conjoint reading of which suggests that a merger can take place only when an original party merges with another political party, and at least two-thirds of the members of the legislature party have agreed to this merger.
    • It is only when these two conditions are satisfied that a group of elected members can claim exemption from disqualification on grounds of merger.
    • The second sub-paragraph (of Paragraph 4) says that a party shall be “deemed” to have merged with another party if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.
    • However, in most cases there is no factual merger of original political parties at the national (or even regional) level.
    • Creation of legal fiction: Paragraph 4 seems to be creating a “legal fiction” so as to indicate that a merger of two-third members of a legislature party can be deemed to be a merger of political parties, even if there is no actual merger of the original political party with another party.
    • In statutory interpretation, “deemed” has an established understanding.
    • The word “deemed” may be used in a law to create a legal fiction, and give an artificial construction to a word or a phrase used in a statute.
    • In other cases, it may be used to include what is obvious or what is uncertain.
    • In either of these cases, the intention of the legislature in creating a deeming provision is paramount.

    Merger exception and issues with it

    • The merger exception was created to save instances of the principled coming together of political groups from disqualification under the anti-defection law, and to strike a compromise between the right of dissent and party discipline. 
    • In the absence of mergers of original political parties, the deeming fiction could, presumably, be used as a means to allow mergers of legislature parties.
    • Encouraging defection: Reading Paragraph 4 in this manner would empower legislature parties to solely merge with another party, and thus, practically ease defection.

    What if sub-paragraphs are read conjunctively?

    • For a valid merger then, an original political party has to first merge with another political party, and then two-thirds of the legislature party must support that merger.
    • Given the politics of current times, stark differences in parties’ respective ideologies, and deep-seated historical rivalries, it is unimaginable how a merger between major national or regional parties would materialise.

    Way forward

    • Remove Paragraph 4: In a situation where either reading of Paragraph 4 in its current form yields undesirable results, its deletion from the Tenth Schedule is a possible way forward.
    • The Law Commission in 1999 and the National Commission to Review the Working of the Constitution (NCRWC) in 2002 made similar recommendations.
    • Revisiting by Supreme Court: Till that happens, an academic revisiting of the Tenth Schedule by the Supreme Court, so as to guide future use of the anti-defection law, is timely and should happen soon.

    Conclusion

    Neither of these two interpretations of Paragraph 4complements the ‘mischief’ that the Tenth Schedule was expected to remedy — that of curbing unprincipled defections. Amending it is the need of the hour.

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  • Political crisis in Maharashtra underscores ineffectiveness of anti-defection law

    Context

    The political crisis in Maharashtra has brought focus back on the anti-defection law. By all accounts, the law has failed to shore up the stability of elected governments.

    About Anti-defection law

    • The Anti-Defection Law under the Tenth Schedule of the Constitution punishes MPs/ MLAs for defecting from their party by taking away their membership of the legislature.
    • It gives the Speaker of the legislature the power to decide the outcome of defection proceedings.
    • It was added to the Constitution through the Fifty-Second (Amendment) Act, 1985 when Rajiv Gandhi was PM.
    • The law applies to both Parliament and state assemblies.

    How provisions of the law are being thwarted?

    • There are many ways to thwart provisions of the law:
    • The Speaker can sit on the defection pleas for the term of the assembly;
    • The beneficiary party can facilitate accretion of defectors to hit the magic two-thirds threshold.
    • The voters don’t seem to care about punishing the defectors either.

    Is an amendment to the law a solution?

    • Some have thus argued that the way forward is to amend the anti-defection law to fill these lacunae by mandating time-bound decisions by the Speaker and disqualifying defectors from standing for the next election as well.
    • These proposed amendments like the original law want to consolidate power without necessarily putting in the requisite politics.

    Why amendment to the law will not solve the problem

    •  Politicians are adept at subverting institutional processes for their own ends and there are many possibilities for payoff for defectors outside of elected office alone.
    • Moreover, politics has a rich history of exercise of power by proxy and the disqualified representative may simply choose to have a family member stand in their stead.
    •  The anti-defection law and proposed amendments approach the issue of defections from the prism of denying power to the defector, a framing which repeatedly comes up short in the face of a bigger and/or more punitive power.

    Way forward

    • Parties need to project power: Within this framework, if political parties want to resist defections, they must be able to project (imminent) power themselves.
    • Parties need to address organisational issues: At the same time, political parties must address organizational and ideological infirmities which have made them susceptible to mass defections in the first place.
    • Ideological clarity: Political parties need ideological clarity and the ability to attract individuals with a sense of purpose and not love for power alone.
    • This ideological depth if reflected in the party organization and its political programs will give members the ability to withstand lean periods of power.
    • Inner-party democracy: Political parties are failing to create intra-party forums where grievances can be expressed and resolved on an ongoing basis.
    • Internal mechanisms for inner-party democracy – from elections to deliberative forums – are ultimately at the discretion of the party leadership.
    • Scrap anti-defection law: Scrapping the anti-defection law would provide some institutional leverage to express intra-party dissidence and while it may be more chaotic in the short-term would lead to greater stability and political strength in the long-term.
    • Contributed to polarisation: The anti-defection law has undermined not just the very principle of representation but has also contributed to polarization in our country by making it impossible to construct a majority on any issue outside of party affiliation.
    • Avoid ceding political power to the judiciary: Political parties are repeatedly giving primacy to legal instead of political battles since these issues inevitably end up in court.
    • This repeated ceding of political power to the judiciary is a serious deviation from the democratic paradigm and must be checked.

    Conclusion

    Anti-defection law has failed to prevent the defections and subsequent toppings of the several state government. Scrapping it could provide leverage to express intra-party dissidence.

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  • Upper House, a question

    Context

    This article seeks to re-articulate a question pertaining to the composition of the Council of States.

    Historical background and CAD over the issue of second chamber

    • Lokanath Misra led the charge against a federal second chamber in the Constituent Assembly stating that there was not need for the second chamber and also that it will not serve any useful purpose.
    • Shibban Lal Saksena, was equally emphatic: He said that as per their experience, the Upper House acts as a clog in the wheel of progress.
    • They were not the only ones who had concerns. Other members expressed them too in different contexts during the Constituent Assembly debate on draft Article 67.

    Issues with the role of Rajya Sabha

    • Unable to protect the interest of the States: Article 1(1) of the Indian Constitution states “India, that is Bharat, shall be a Union of States.”
    • Therefore, the primary responsibility of a Council of States would be to protect the interests of the states vis a vis the Union.
    • There is hardly any empirical evidence that substantiates that the Rajya Sabha has measured upto the task ever since it came into existence on April 3r 1952.
    • No focus on states: From 1952 to 2003, at least there was a veneer of a state focus when it was mandatory that any citizen desirous of contesting a Rajya Sabha election had to be an elector from that particular state.
    • By amending Section 3(1) of the Representation of People’s Act 1952 and doing away with the domicile requirement, the Government removed this fig leaf also in 2003.
    •  A five-judge bench did not uphold tha challenge to this judgement.
    •  This amendment and the subsequent judgment buried the earlier practice of individuals entering the Rajya Sabha from anywhere based upon rather dodgy but still some form of domicile credentials.
    • All states do not have bicameral legislature: Twenty-four states have unicameral legislatures, that is, only one legislative body, and only six states are bicameral.
    • If the bulk of the states can make do with one House why not the Centre?
    • Rajya Sabha as continuous house argument: It is also argued that the Rajya Sabha is a continuous House as opposed to the Lok Sabha that gets mandatorily dissolved every five years if not sooner.
    • That can be fixed with a simple amendment to Article 83 (2) that should state that “Lok Sabha would remain in existence till the time its successor body/house is not constituted.
    • Article 83 (1) would stand deleted and consequential amendments can be carried out to other parts of the Constitution.

    Conclusion

    It would be instructive to keep in mind that the Basic Structure doctrine enunciated by the Supreme Court in Re: Kesvananda Bharti holds parliamentary democracy to be basic structure, not bicameralism.

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