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.
At the invitation of Chinese President Xi Jinping, PM Modi is attending the 14th BRICS Summit hosted by China in virtual format.
Discussions during the summit are expected to cover intra-BRICS cooperation in areas such as counter-terrorism, trade, health, traditional medicine, environment, IT and innovation, agriculture, technical and vocational training, and MSMEs.
Why in news?
China is keen for the grouping to explore expansion and include new developing country members.
Under the “BRICS Plus” format, the forthcoming summit is also expected to be attended by leaders of invited emerging countries.
What is BRICS?
BRICS is an acronym for the grouping of the world’s leading emerging economies, namely Brazil, Russia, India, China and South Africa.
The BRICS Leaders’ Summit is convened annually. It does not exist in form of organization, but it is an annual summit between the supreme leaders of five nations.
Its inception
On November 30, 2001, Jim O’Neill, a British economist who was then chairman of Goldman Sachs Asset Management, coined the term ‘BRIC’ to describe the four emerging economies of Brazil, Russia, India, and China.
He made a case for BRIC on the basis of econometric analyses projecting that the four economies would individually and collectively occupy far greater economic space and become among the world’s largest economies in the next 50 years or so.
How it has formed?
The grouping was formalized during the first meeting of BRIC Foreign Ministers on the margins of the UNGA in New York in September 2006.
The first BRIC Summit took place in 2009 in the Russian Federation and focused on issues such as reform of the global financial architecture.
Who are the members?
South Africa was invited to join BRIC in December 2010, after which the group adopted the acronym BRICS. South Africa subsequently attended the Third BRICS Summit in Sanya, China, in March 2011.
The Chairmanship of the forum is rotated annually among the members, in accordance with the acronym B-R-I-C-S.
The importance of BRICS is self-evident: It represents 42% of the world’s population, 30% of the land area, 24% of global GDP and 16% of international trade.
The five BRICS countries are also members of G-20.
Salient features of BRICS
(1) New front against western dominance
The BRICS is group of countries having total population of approximately 3.6 billion which makes 40% of world population.
Also, the cumulative economy of the group members aggregate to around 17 trillion in nominal term which is 22% of world economy in current context.
(2) Future power centres of the world
India and China are today the fastest growing economies and they are considered as future super power of world.
The group also has Russia the former USSR as a member which was one of the two super power until 1991 when it was disintegrated for various political and economic reason but still retain the hegemony of western, US led military dominance.
(3) New global order
In subsequent summits since its inception the group has taken various initiatives which have changed the world economic order.
The group pledged a corpus of $75 billion to IMF on precondition of voting rights reform in June, 2012 which is not only the end of US hegemony in institution but also a start of more democratic world order.
(4) New Development Bank
During its fifth summit at Durban, South Africa in 2013, the member countries agreed to create a new global financial institution which finally came into existence as New Development Bank in 2015.
The bank is today considered as rival of World Bank and the bank’s primary focus is to lend for various development projects in member and other developing countries.
(5) Contingent Reserve Agreement
To save members from immediate economic shocks the group has also agreed to Contingent Reserve Agreement.
The agreement provide protection to member countries against global liquidity pressure as all the members are developing economies.
They are prone to increased economical volatility in current globalized scenario and is considered as rival of International Monetary Fund.
(6) A bridge between North and South
The grouping has gone through a reasonably productive journey. It strove to serve as a bridge between the Global North and Global South.
(7) Sustainable and inclusive growth and development
Structural imbalances caused by the global financial crisis of 2008 and new threats to the global economy posed by trade war and unilateral economic sanctions are yet to be resolved.
The growing contribution of the BRICS to the world economy and the rising importance of the economic relations between the BRICS and other Emerging Market and Developing Countries (EMDCs) create an opportunity for new initiatives.
Importance of BRICS for India
(1) Geo-Politics
Global geopolitics today represents the case of a tug of war and India finds itself in the middle of it.
This has made difficult for India to carve a middle path for balancing its strategic interests between the U.S and the Russia-China axis.
Therefore, BRICS platform provides an opportunity for India to balance Russia-China axis.
(2) Global Economic Order
BRICS countries shared a common objective of reforming the international financial and monetary system, with a strong desire to build a more just, and balanced international order.
To this end, BRICS community plays an important role in the G20, in shaping global economic policies and promoting financial stability.
(3) Voice of Developing Nations
As the western countries are raising challenges on issues ranging from World Trade Organization to climate change, the developing countries are crippling under the onslaught of these policies.
In recent period, BRICS has emerged as the voice of developing countries, or the global south and playing a significant role in protecting the rights of developing countries.
(4) Multilateral reforms
India is actively pursuing its membership for United Nation Security Council (UNSC) and Nuclear Supplier Group (NSG).
China forms the major roadblock in pursuing such goals.
Therefore, BRICS provides an opportunity to actively engage with China and resolve the mutual disputes. It also helps in garnering support of other partner countries.
What are the challenges with the BRICS?
(1) Heterogeneity
It is claimed by critics that heterogeneity (variable/diverse nature of countries) of the BRICS nations with its diverse interests possess a threat to the viability of the grouping.
(2) China Centric nature of the group
All the countries in BRICS grouping trade with China more than each other, therefore it is blamed that as a platform to promote China’s interest.
Balancing trade deficit with China is huge challenge for other partner nations.
(4) Regional model
Amidst, global slowdown, trade war and protectionism, the critical challenge for the BRICS consists in the development of a new global model of governance which should not be unipolar but inclusive and constructive.
The goal should be to avoid a negative scenario of unfolding globalization and to start a complicated merging of the global growing economies without distorting or breaking the single financial and economic continuum of the world.
(5) In-effective
The five-power combine has succeeded, albeit up to a point.
However, China’s economic rise has created a serious imbalance within BRICS.
Also the group has not done enough to assist the Global South to win their optimal support for their agenda.
(6) Hostile members
The future of the group seems little gloomy as the two biggest economy India and China of the group are having various contentious issues between them.
The two countries are often seen as rival on various global forums which degenerate the confidence between each other.
(7) Sanctions on Russia
In recent times the global slowdown, sanction on Russia since it annexed Crimea and political instability in Brazil has also added burden on BRICS economy.
Russian participation has been seen through lens of its recent invasion of Ukraine aslo.
Priorities/Immediate goals of BRICS
(1) Reform of multilateral institutions
The first is to pursue reform of multilateral institutions ranging from the United Nations, World Bank and the International Monetary Fund to the World Trade Organization and now even the World Health Organization.
This is not a new goal. BRICS has had very little success so far, although strengthening multilateralism serves as a strong bond as well as a beacon.
(2) Resolve to combat terrorism
Terrorism is an international phenomenon affecting Europe, Africa, Asia and other parts of the world.
Tragic developments concerning Afghanistan have helped to focus attention sharply on this overarching theme, stressing the need to bridge the gap between rhetoric and action.
China, for example, feels little hesitation in supporting clear-cut denunciations of terrorist groups, even as its backing of Pakistan, which is heavily enmeshed with a host of international terrorist groups, remains steadfast.
(3) Promoting technological and digital solutions for the Sustainable Development Goals
Digital tools have helped a world adversely hit by the pandemic, and India has been at the forefront of using new technological tools to improve governance.
(4) Expanding people-to-people cooperation
However, enhancing people-to-people cooperation will have to wait for international travel to revive.
Interactions through digital means are a poor substitute.
Way Forward
The BRICS needs to expand its agenda for increasing its relevance in the global order.
A close examination of India’s record in BRICS reveals that New Delhi has used its membership to make a substantial contribution to the global financial architecture.
India is not a free-rider in a system of global governance dominated by the West, and continues to provide a vision of global governance.
For BRICS to remain relevant over the next decade, each of its members must make a realistic assessment of the initiative’s opportunities and inherent limitations.
BRICS should promote comprehensive development of all states — both big and small — and enhanced mutually beneficial cooperation among them on the basis of shared interests.
Democratization of international issues i.e agreements on global agendas should be reached with the widest and equal participation of all stakeholders and be based on universally recognized legal norms.
The principle of respect for cultural and civilization diversity of the world should be a top priority.
BRICS nations should strive for peaceful and politico-diplomatic settlement of crisis and conflict in various regions of the world.
This week the Wall Street Journal and the New York Times both reported on India emerging as a major buyer of Russian oil.
Background of rising fuel prices due to Ukraine crisis
A significant fallout of Russia’s invasion of Ukraine has been the rising cost of petroleum.
In response to the invasion, Western countries, including the United States and Europe, have imposed an array of sanctions against Russia.
Reduced purchases from Russia: Europe and the United States have seen the price of oil steadily rise after they reduced their purchases from Russia.
For now, Russia has been able to mitigate the impact of sanctions by selling crude, oil and coal at reasonable prices in greater volumes to newer bulk buyers like India, to combat Europe trying to wean itself off Russian crude.
Why India increased purchase of Russian oil
India has chosen a different route.
Cope with rising fuel prices: We are the third-largest importer and consumer of oil in the world and have increased our purchase of Russian oil to cope with rising oil prices elsewhere.
We are also refining crude oil or turning it into products like jet fuel and diesel and selling it to Europe and other nations.
Curb inflation: Importing Russian crude also helps us curb inflation that has been made worse by rising fuel prices.
Halting the fall of the rupee: Procuring discounted Russian oil is an effort by the government to bring down prices and halt the decline in the value of the Indian rupee.
India’s behaviour is governed by our best interest, which is the most important element of any astute foreign and economic policy.
Issues with purchasing oil from Russia
The European Union has announced a ban against insuring ships carrying Russian oil, to commence this December.
Insurance ban: Countries like India, China and Turkey that are increasing their oil purchases from Russia have six months to find a work-around to the insurance ban by using non-European insurance companies.
European companies own most of the ships carrying Russian oil to India.
These insurance sanctions will impact the companies that own these ships as well.
Dependence for batteries: Apart from geopolitical changes in the world indicating the rise of China, there is a major change: Electric vehicles and electric batteries substituting for non-renewable resources like petroleum and diesel.
India cannot afford to be dependent on an unhindered supply of electric batteries from China, given geopolitical considerations and border disputes between the two nations.
Way forward
To weather the new electric era that will no doubt be dotted with territorial wars and national security concerns, India would do well to preempt shortages in the arena – by putting in place factories which will build the electric batteries that will power our futures.
What the invasion of Ukraine has taught us is that we need to be more self-reliant and have in-house energy sources.
Conclusion
India needs to factor in the implications of comprehensive western sanctions as it increases its purchase of discounted Russian oil.
The National Mobile Monitoring Software (NMMS) app seeks to improve citizen oversight and increase transparency in NREGA works. This causes significant difficulty for NREGA workers.
About NMMS app
National Mobile Monitoring Software (NMMS) App was launched by the Minister of Rural Development on May, 21 2021.
The National Mobile Monitoring App is applicable for the Mahatma Gandhi NREGA workers for all the States/ Union Territories.
This app is aimed at bringing more transparency and ensure proper monitoring of the schemes.
The main feature of the app is the real-time, photographed, geo-tagged attendance of every worker to be taken once in each half of the day.
The app helps in increasing citizen oversight of the programme.
Issues with the use of the app
While such an app may be useful in monitoring the attendance of workers who have fixed work timings, in most States, NREGA wages are calculated based on the amount of work done each day, and workers do not need to commit to fixed hours.
Disproportionately affects women: NREGA has historically had a higher proportion of women workers (54.7% in FY 2021-22) and has been pivotal in changing working conditions for women in rural areas.
Due to the traditional burden of household chores and care work on women, the app is likely to disproportionately affect women workers.
Lack of stable network: There are challenges of implementation with the NMMS as well.
A stable network is a must for real-time monitoring; unfortunately, it remains patchy in much of rural India.
NREGA Mates impacted: The app has adversely impacted NREGA Mates as well.
The role of a Mate was conceptualised as an opportunity to empower local women to manage attendance and work measurement in their panchayat.
To be a Mate, one needs to have a smartphone.
This new condition disqualifies thousands of women who do not own smartphones from becoming Mates.
Erosion of transparency: The app claims to “increase citizen oversight” by “bringing more transparency and ensuring proper monitoring of the schemes, besides potentially enabling processing payments faster”.
With no physical attendance records signed by workers anymore, workers have no proof of their attendance and work done.
No clarity provided on corruption: While ostensibly the NMMS’s focus on real-time, geo-tagged attendance could be one way of addressing this corruption, the MoRD has not provided much clarity on either the magnitude of this corruption or the manner in which the NMMS addresses it.
No parameters: There are no parameters established to assess the app’s performance, either on transparency, or on quicker processed payments.
Way forward
Social audits: Social audits are citizen-centric institutions, where the citizens of the panchayat have a direct role and say in how NREGA functions in their panchayat.
Audits have worked well in the past, allowing the local rights holders to be invested in decisions, and hold the administration accountable themselves.
Conclusion
The NMMS has very clear problems that will make it increasingly difficult for workers to continue working under NREGA, eroding the right to work that underwrites the NREGA Act.
So, Yasharth Shekhar, AIR 12 ranker will be LIVE on Saturday for a 1-1 session. He will be taking your questions and will personally resolve each one of your doubts. So, put up your question for Yasharth Shekhar below and set up a reminder for 5 pm coming Saturday.
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In a significant curtailment of women’s rights, the US Supreme Court overturned Roe v. Wade, a 1973 landmark decision giving women in America the right to have an abortion before the foetus is viable outside the womb — before the 24-28 week mark.
What is Roe vs. Wade Case: Upholding the Right to Abortion
Roe, short for Jane Roe, is the pseudonym for a Texas woman who in 1970 sought to have an abortion when she was five months pregnant.
Texas then had ban on abortions except to save a mother’s life. The case then went to the US Supreme Court (SCOTUS).
The 7-2 majority opinion of the SCOTUS written in 1973, paved the way for the recognition of abortion as a constitutional right in the US considering foetal viability.
[Foetal viability is the point at which a foetus can survive outside the womb, at the time considered to be around 28 weeks, but today is closer to 23 or 24 weeks owing to advances in medicine and technology.]
Right to Abortion Judgment: Key takeaways
Based on the Roe vs Wade case, the framework of regulations that applied towards the right to abortion:
Almost no limitations could be placed on that right;
Only limitations to abortion rights that were aimed at protecting a woman’s health were permitted; and in the third trimester,
State governments had greater leeway to limit the right to abortion except for cases in which the life and health of the mother were endangered.
What is the debate?
The abortion debate is the ongoing controversy surrounding the moral, legal, and religious status of induced abortion.
The sides involved in the debate are the self-described “pro-choice” and “pro-life” movements.
Pro-choice emphasizes the woman’s choice whether to terminate a pregnancy.
Pro-life position stresses the humanity of both the mother and foetus, arguing that a fetus is a human person deserving of legal protection.
Why is the judgement overturned?
Foetuses feel the pain: If the foetus is beyond 20 weeks of gestation, gynaecs assume that there will be pain caused to the foetus.
Biblical gospel: The Bible does not draw a distinction between foetuses and babies. By the time a baby is conceived, he or she is recognized by God.
Abortions cause psychological damage: Young adult women who undergo abortion may be at increased risk for subsequent depression.
Abortions reduce the number of adoptable babies: Instead of having the option to abort, women should give their unwanted babies to people who cannot conceive. Single parenthood is also gaining popularity in the US.
Cases of selective abortion: Such cases based on physical and genetic abnormalities (eugenic termination) is overt discrimination.
Abortion as a form of contraception: It is immoral to kill an unborn child for convenience. Many women are using abortion as a contraceptive method.
Morality put to question: If women become pregnant, they should accept the responsibility that comes with producing a child. People need to take responsibility for their actions and accept the consequences.
Abortion promotes throwaway culture: The legalization of abortion sends a message that human life has little value and promotes the throwaway culture.
Racial afflictions: Abortion disproportionately affects African American babies. In the US, black women are 3.3 times as likely as white women to have an abortion.
Arguments in favour for Abortion Rights
Upholding individual conscience and decision-making: The US Supreme Court has declared abortion to be a fundamental right guaranteed by the US Constitution.
Reproductive choice empowers women: The choice over when and whether to have children is central to a woman’s independence and ability to determine her future.
Foetal viability occurs post-birth: Personhood begins after a foetus becomes “viable” (able to survive outside the womb) or after birth, not at conception. Abortion is the termination of a pregnancy, not a baby.
No proof of foetal pain: Most neuroscientists believe that the cortex is necessary for pain perception. The cortex does not become functional until at least the 26th week of a foetus’ development.
Preventing illegal abortions: Access to legal, professionally-performed abortions reduces maternal injury and death caused by unsafe, illegal abortions.
Mother’s health: Modern abortion procedures are safe and do not cause lasting health issues such as cancer and infertility.
Child’s health: Abortion gives pregnant women the option to choose not to bring fetuses with profound abnormalities to full term.
Prevents women’s exclusion: Women who are denied abortions are more likely to become unemployed, to be on public welfare, to be below the poverty line, and to become victims of domestic violence.
Reproductive choice protects women from financial disadvantage: Many women who choose abortion don’t have the financial resources to support a child.
Justified means of population control: Many defends abortion as a way to curb overpopulation. Malnutrition, starvation, poverty, lack of medical and educational services, pollution, underdevelopment, and conflict over resources are all consequences of overpopulation.
Way forward
A search for the middle path perhaps the right of a woman to choose what to do with the foetus has to be balanced with the right of the foetus to survive.
It is only that a foetus does not have the ability to exercise an option while the person who carries it does.
Rather than banning abortion, lawmakers must focus on counselling, employment security, social welfare, and financial support to persuade pregnant women to give birth to their children.
We must achieve some degree of protection for the unborn by obtaining voluntary recognition of personal responsibility and respect for the personhood of the unborn.
Back2Basics: Medical Termination of Pregnancy (MTP) Act
Abortion in India has been a legal right under various circumstances for the last 50 years with the introduction of Medical Termination of Pregnancy (MTP) Act in 1971.
The Act was amended in 2003 to enable women’s accessibility to safe and legal abortion services.
Abortion is covered 100% by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion.
The idea of terminating your pregnancy cannot originate by choice and is purely circumstantial. There are four situations under which a legal abortion is performed:
If continuation of the pregnancy poses any risks to the life of the motheror mental health
If the foetus has any severe abnormalities
If pregnancy occurred as a result of failure of contraception (but this is only applicable to married women)
If pregnancy is a result of sexual assault or rape
These are the key changes that the Medical Termination of Pregnancy (Amendment) Act, 2021, has brought in:
The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. But this termination would need the approval of two registered doctors.
All pregnancies up to 20 weeks require one doctor’s approval. The earlier law, the MTP Act 1971, required one doctor’s approval for pregnancies upto 12 weeks and two doctors’ for pregnancies between 12 and 20 weeks.
Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.
There is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.
Parameswaran Iyer, a senior official who helmed the Swachh Bharat Abhiyan, will be the new Chief Executive Officer (CEO) of the NITI Aayog.
What is the news?
Iyer replaces Amitabh Kant, who completes his term in the office on June 30.
Kant was appointed CEO of the National Institutions for Transforming India (NITI) Aayog on February 17, 2016, for two years.
He got three extensions during his tenure.
Do you know?
Under Mr. Kant, the NITI Aayog helped the Centre launch several programmes such as Digital India and Make in India.
What is NITI Aayog?
The NITI Aayog serves as the apex public policy think tank of the GoI.
It was established in 2015, by the NDA government, to replace the Planning Commission which followed a top-down model.
It advises both the centre and states on social and economic issues.
It is neither a constitutional body nor a statutory body but the outcome of an executive resolution. It was not created by the act of parliament.
Composition of NITI Aayog
The Prime Minister of India is the chairperson/chairman of the NITI Aayog.
The PM appoints one Vice-Chairperson, who holds the rank of a cabinet minister.
It includes the Chief Ministers of all the states and Union territories.
It has Regional Councils for looking after contingencies in regional areas. It is convened and chaired by the Prime Minister of India and includes concerned chief ministers and Lt. Governors.
The Prime Minister nominates Personalities with skilled knowledge, who are experts in particular domains as special invitees.
There are full-time members who hold the rank of ministers.
There is a maximum of two Part-time members who are invited from leading organisations, universities, and research centres.
The Prime Minister also appoints one Chief Executive Officer (CEO) who holds the rank of a Secretary.
Aims, Agenda, and Objectives of NITI Aayog
The purpose with which NITI Aayog was formed in place of the Planning Commission was a far-sighted vision. It was important to boost the development of India in the emerging global scenario. The objectives are:
To generate a platform for national development, sectors and strategies with the collaboration of states and centre.
To boost the factor of cooperative federalism between the centre and the states. For national development, it is necessary for both wings to work in synergy.
To develop such mechanisms which work at the ground root level for progressive growth. A nation develops when its regions and states develop.
To work on long term policies and strategies for long-term development. To set up a system for monitoring progress so that it can be used for analysing and improving methods.
To provide a platform for resolving inter-departmental issues amicably.
To make it a platform where the programmes, strategies, and schemes can be monitored on a day to day basis, and it could be understood which sector needs more resources to develop.
To upgrade technological advancements in such a manner that focus can be made on iNITIatives and programmes.
To ensure India’s level and ranking at the worldwide level and to make India an actively participating nation.
To progress from food security towards nutrition and standardised meals and focus on agricultural production.
To make use of more technology to avoid misadventures and corruption in governance.
To make the working system more transparent and accountable.
NITI Aayog – Seven Pillars of Effective Governance
NITI Aayog works on principles like Antyodaya (upliftment of poor), inclusion (to include all sections under one head), people participation, and so on.
NITI Aayog is a body that follows seven pillars of governance. They are:
To look after pro-people agenda so that the aspirations and desires of no one are compromised.
To respond and work on the needs of citizens.
Make citizens of the nation involve and participate in various streams.
To empower women in all fields, be it social, technical, economic, or other.
To include all sects and classes under one head. To give special attention to marginalised and minority groups.
To provide equal opportunity for the young generation.
To make the working of government more accountable and transparent. It will ensure less chance of corruption and malpractices.
Try this PYQ from CSP 2019:
In India, which of the following review the independent regulators in sectors like telecommunications, insurance, electricity, etc.?
Ad Hoc Committees set up by the Parliament
Parliamentary Department Related Standing Committees
Finance Commission
Financial Sector Legislative Reforms Commission
NITI Aayog
Select the correct answer using the code given below:
We all aspirants are closely observing what has been happening in the state of Maharashtra.
Now the rebel leader has moved the Supreme Court against the disqualification notice issued by the deputy speaker to him and some other rebel legislators, calling the action “illegal and unconstitutional” and seeking a stay on it.
What is 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.
Cases consider under the anti-defection law
The law covers three scenarios with respect to shifting of political parties by an MP or an MLA.
(1) Voluntary give-up
The first is when a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House against the wishes of the party.
Such persons lose his seat.
(2) Independent members
When a legislator who has won his or her seat as an independent candidate joins a political party after the election.
In both these instances, the legislator loses the seat in the legislature on changing (or joining) a party.
(3) Nominated MPs
In their case, the law gives them six months to join a political party, after being nominated.
If they join a party after such time, they stand to lose their seat in the House.
Covering independent members
In 1969, a committee chaired by Home Minister Y B Chavan examined the issue of defection.
It observed that after the 1967 general elections, defections changed the political scene in India: 176 of 376 independent legislators later joined a political party.
However, the committee did not recommend any action against independent legislators.
A member disagreed with the committee on the issue of independents and wanted them disqualified if they joined a political party.
In the absence of a recommendation on this issue by the Chavan committee, the initial attempts at creating the anti-defection law (1969, 1973) did not cover independent legislators joining political parties.
The next legislative attempt, in 1978, allowed independent and nominated legislators to join a political party once.
But when the Constitution was amended in 1985, independent legislators were prevented from joining a political party and nominated legislators were given six months’ time.
Powers to disqualification
Under the anti-defection law, the power to decide the disqualification of an MP or MLA rests with the presiding officer of the legislature.
The law does not specify a time frame in which such a decision has to be made.
As a result, Speakers of legislatures have sometimes acted very quickly or have delayed the decision for years — and have been accused of political bias in both situations.
Issues with the Anti-defection cases these days
Generally, when doubts are cast on the CM that he has lost the majority, the opposition and the Governor would rally for a floor test.
Now, this may seem like an administrative act. But loopholes around the law has brought politics into the picture. Let us understand the various ground situations involved:
1) Defection proceeding
A Supreme Court Bench is scheduled to hear an appeal filed by the Rajasthan Assembly Speaker’s office challenging the State High Court order to defer anti-defection proceedings against former Deputy CM.
The petition said the HC has crossed its jurisdiction by asking the Speaker to put off his decision on the disqualification notices issued to dissident MLAs.
The High Court’s interim order granting extended time to rebel MLAs to file their replies to anti-defection notices amounted to a violation of Article 212 (courts not to inquire into the proceedings of the legislature).
The petition said that judicial review of ongoing anti-defection proceedings was limited.
The petition referred to the Constitution Bench judgment of the top court in the Kihoto Hollohan case in 1992 in this context.
Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a prior action would not be permissible.
Nor would interference be permissible at an interlocutory stage of the proceedings, the verdict says.
2) Summoning the house
Rajasthan Governor returning the fresh proposal by the state Cabinet – seeking to convene a session of the Assembly has raised fresh legal questions on the powers of the Governor. But a Constitution Bench judgment of the Supreme Court has held that a Governor is bound to convene a meeting of the Assembly for a floor test on the recommendation of the Cabinet.
Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…”
However, the phrase “as he thinks fit” is read as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the cabinet.
Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.
The Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker (2016) expressly said that the power to summon the House is not solely vested in the Governor.
The court has highlighted that Article 163 of the Constitution does not give the Governor a “general discretionary power to act against or without the advice of his Council of Ministers.
The discretionary powers are limited to specified areas like giving assent or withholding/referring a Bill to the President or appointment of a CM or dismissal of a government that has lost confidence but refuses to quit, etc.
3) Floor test
Now, we know that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority.
In fact, on numerous occasions, including in the 2016 Uttarakhand case, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
In 2016, the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker expressly said that the power to summon the House is not solely vested in the Governor.
4) Time Limit for defection plea
The Anti-defection 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.
5) Deciding on merger or split
The Tenth Schedule of the Constitution prohibits defection to protect the stability of governments but does not prohibit mergers.
Paragraph 4(2) of the Tenth Schedule, dealing with mergers, says that only when two-thirds of the members agree to “merge” the party would they be exempt from disqualification.
The “merger” referred to in Paragraph 4(2) is seen as a legal fiction, where members are deemed to have merged for the purposes of being exempt from disqualification, rather than a merger in the true sense.
Major political parties argue that a state unit of a national party cannot be merged without the party being merged at the national level.
However, the Tenth Schedule identifies this dichotomy between state units and national units.
As per Paragraph 4(2), “merger” of a party means merger of a legislative party of that House and not the national party.
Yet another feature: ‘Resort’ Politics
The sight of legislators being packed off in luxury buses, and lodged in comfortable, even luxurious, hotels and resorts, has become a common feature of Indian politics.
It usually happens when a state government is in crisis, when a crucial election for a Rajya Sabha seat is underway and numbers are fluid, or when a rebellion is underway to change the regime in a state.
A political party — or the rebel faction — then rushes to consolidate the legislators who are in its favour.
The objective is to ensure that these legislators don’t succumb to temptations and inducements offered by the other side, and instead, remain under constant surveillance.
The method then adopted is to lock them in, till the crisis is resolved one way or the other.
What we can learn from the ongoing situation?
As recent events have made clear, however, the Tenth Schedule is no longer an effective check on the phenomenon of defection, and an urgent reconsideration is required. There are a few reasons why this is so.
1) Loopholes are present in the law itself
The first is that the defecting MLAs have found a way around the restrictions in the Tenth Schedule.
Instead of formally “crossing the floor” or voting against their party in a confidence motion, they resign from the party.
This brings down the party’s strength in the House, and the government is toppled.
A few months later, when by-elections are held, the same MLAs then stand for election on the ticket of the opposition party and are returned to the assembly.
2) Judiciary can ‘conditionally’ intervene
Unfortunately, in their recent judgments, the courts have failed to stop defection practices (although, arguably, the language of the Tenth Schedule does not leave much room to the judiciary).
No matter how well-drafted a constitutional provision is, ultimately, its implementation depends upon constitutional functionaries acting in good faith.
As BR Ambedkar pointed out soon after the framing of the Constitution, every constitutional text can be subverted if those charged with running the affairs of government are inclined to do so.
3) Political commitment is under question
In recent times, it has become clear that the major constitutional actors involved in times of constitutional instability — i.e., the governors and the speakers — do not act in good faith.
In every constitutional crisis over the last few years, governors/speakers have acted like partisan representatives of the political party that appointed them, and have flouted constitutional conventions with impunity.
Instances include decisions regarding which party to call first to form the government in a hung house, to order — or refusing to order — floor tests to prove majorities.
4) Horse-trading persists in Indian politics
More recently, the Rajasthan High Court effectively injuncted the Speaker of the Rajasthan Assembly from acting upon disqualification notices, despite clear SC precedent to the contrary.
It can be pointed out that horse-trading of legislators persists.
It has been widely reported that huge sums of money are offered to MLAs to desert their parties and bring down the government.
5) Role of Legislators is being compromised
The anti-defection law has restrained legislators from effectively carrying out their functions.
In a parliamentary system, legislators are expected to exercise their independent judgement while determining their position on an issue.
The choice of the member may be based on a combination of public interest, constituency interests, and party affiliations.
This fundamental freedom of choice could be undermined if the member is mandated to vote along the party line on every Bill or motion.
6) Accountability of the government is compromised
The anti-defection law deters legislators from holding the government accountable for its actions.
One of the key features of parliamentary democracy is that the government is accountable for its decisions.
However, the anti-defection law deters a legislator from his duty to hold the government accountable, by requiring him to follow the instruction of the party/coalition on almost every decision.
7) Overall decision making is hindered
The anti-defection law leads to major decisions in the legislature being taken by a few party leaders and not by the larger body of legislators.
This implies that anyone who controls the party leadership can issue directions to all legislators.
Thus, voting in the House will be as per the wishes of a few party leaders/ coalition leader rather than the beliefs of all legislators or the need for urgency.
Consensus if often dictated against which democratization within political parties is sought.
8) Clueless voters are the ultimate losers
The anti-defection law breaks the chain of accountability between elected representatives and the voter.
The legislator would have to justify his decision if he differs from such a view.
If he dissented from the party line, he would lose his seat and would be unable to work for the citizens’ interests on other issues.
This further reduces the accountability of elected representatives to citizens.
Article 164(1B)
A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.
Need for urgent attention to Article 164(1B)
This allows for the toppling of governments by inducements of various kinds.
The motivation is that a fresh election allows the disqualified member to be re-elected.
He then becomes a member of the assembly once again, as its term is not over and can also be appointed a minister.
Under Article 164(1B), such a defection has no real consequences.
Way forward
Ensure impartiality of Speaker: Speakers, when elected must resign from the party to which they belong.
At the end of their term, there should be a cooling-off period before they can become members of any political party.
Omit Paragraph 4 through Amendment: Paragraph 4 of the Tenth Schedule should be omitted by moving a constitutional amendment.
Make disqualification for 5 years: All those disqualified under paragraph 2 of the Tenth Schedule should neither be entitled to contest elections nor hold public office for five years from the date of their disqualification.
Article 164(1B) should be omitted by moving a constitutional amendment.
Set time limit to decide petition for disqualification: All petitions for disqualification of members under paragraph 2 of the Tenth Schedule should be decided, by adopting a summary procedure, within a period of three months.
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