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Subject: Polity

  • Legal and constitutional framework to deal with split in political party

    Context

    The recent split in Shiv Sena and the subsequent political slugfest in Maharashtra has brought into focus the legal and constitutional framework to deal with issues when a party splinters and rival factions assert themselves as the recognised political party.

    Culture of functioning political parties in India

    • What is a political party? A political party is an organised group of citizens who hold common views on governance and act as a political unit that seeks to obtain control of government with a view to further the agenda and policy they profess.
    • Political parties maintain a continuous connection between the people and those who represent them either in government or in the opposition.
    • Political parties in India are extra-constitutional, but they are the breathing air of the political system.
    • There are reportedly 2,598 registered political parties, eight national parties and 50 state parties.
    • The regulation of these parties and elections in the country is a crucial segment of India’s constitutional imagination.
    • Yet, the proliferation of political parties also means that established parties splinter.
    • A battle ensues for recognition of one faction or group as the recognised political party and securing the party symbol.

    Legal and Constitutional framework

    • There is a legal and constitutional framework to deal with issues when a party splinters and rival factions assert themselves as the recognised political party.
    • Article 324 of the Constitution provides that the superintendence, direction and control of elections is vested in the Election Commission.
    • Conduct of Election Rules, 1961, Rule 5 specifies that the Commission shall specify the symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice will be subject.
    • Choice and allotment of symbol: The Election Symbols (Reservation and Allotment) Order 1968 provides for the choice and allotment of symbols in Parliamentary and Assembly constituencies and for recognition of political parties and matters connected.
    • Power to recognise party from splinter group: Paragraph 15 of this Order specifies that the Commission has the power to recognise as the party, from amongst splinter groups or rival sections.

    Important case on recognition of faction

    • The classic case on recognition of a faction and accrual of the party symbol is Sadiq Ali v the Election Commission of India (1972). 
    • Here, the Supreme Court was confronted with the case of the Indian National Congress which had split into two factions.
    • The Commission ruled in favour of Congress (J) being the recognised political party and the case reached to the Supreme Court,
    • The SC relied on the figures presented to the Commission and found that a substantial majority of the members of the Congress in both its legislative wing as well as the organisational wing supported the Congress (J).
    • The SC concludes that “numbers have importance in a democratic system of government or political set up, and it is neither possible nor permissible to lose sight of them. Indeed, it is the view of the majority which in the final analysis proves decisive in a democratic set-up.”
    • It was also concludes that paragraph 15, which gives the Commission power to settle such disputes pertaining to symbols between factions of a party, is entirely legal, for this power accrues from Article 324 that creates the Commission and vests in it the power of superintendence over elections.

    Conclusion

    In India’s 72nd year as a constitutional democracy, the free and fair regulation of political parties by the Election Commission and the courts is a crucial part of our political success as a nation. The Supreme Court’s thoughtful judgment decades ago is a realisation of the importance accorded to judicial oversight of our political parties.

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  • Explained: Sub-categorizing OBCs

    The Centre has extended the tenure of The Commission to Examine Sub-categorisation of Other Backward Classes (OBCs) headed by Justice G Rohini, former Chief Justice of Delhi High Court.

    Why in news?

    • The Commission, constituted nearly five years ago, has got 10 extensions so far.
    • It now has a deadline until January 31 next year to submit its report.

    Who are the OBCs?

    • Other Backward Class is a collective term used to classify castes which are educationally or socially disadvantaged.
    • It is one of several official classifications of the population of India, along with General Class, Scheduled Castes and Scheduled Tribes (SCs and STs).
    • The OBCs were found to comprise 55% of the country’s population by the Mandal Commission report of 1980, and were determined to be 41% in 2006.

    What is the Sub-Categorization of OBCs?

    • The idea is to create sub-categories within the larger group of OBCs for the purpose of reservation.
    • OBCs are granted 27% reservation in jobs and education under the central government.
    • This has been a legal debate for other reservation categories too.
    • In September last year, a Constitution Bench of the Supreme Court reopened the debate on sub-categorization of SCs and STs for reservations.

    Establishment of Rohini Commission

    • Only a few affluent communities among the over 2,600 included in the Central List of OBCs have secured a major part of the reservation.
    • Sub-categories within OBCs would ensure “equitable distribution” of representation among all OBC communities.
    • It was to examine this that the Rohini Commission was constituted on October 2, 2017.

    What is the Commission’s brief?

    It was originally set up with three terms of reference:

    1. To examine the extent of inequitable distribution of benefits of reservation among the castes or communities included in the broad category of OBCs
    2. To work out for a scientific approach for sub-categorization within such OBCs
    3. To take up the exercise of identifying the respective castes or communities or sub-castes or synonyms in the Central List of OBCs
    4. To study the various entries in the Central List of OBCs and recommend correction of any repetitions, ambiguities, inconsistencies and errors of spelling or transcription.

    When was it meant to submit its report?

    • At the time it was set up, the Commission was given 12 weeks to submit its report, but has since been given 10 extensions.
    • There is a lot of work to be done.
    • The NCBC until December 2020, over Rs 1.92 crore had been spent on the Commission including salary, consultant fees and other expenses.

    What progress has it made so far?

    • The Commission is ready with the draft report on sub-categorization.
    • Among the challenges it has faced, one has been the absence of data for the population of various communities to compare with their representation in jobs and admissions.
    • The Commission proposed for a all-India survey to estimate caste-wise population of OBCs.
    • Since then the government has been silent on this, whereas groups of OBCs have been demanding enumeration of OBCs in the Census.

    What have its findings been so far?

    • In 2018, the Commission analysed the data of 1.3 lakh central jobs given under OBC quota over the preceding five years.
    • It examined OBC admissions to central higher education institutions, including universities, IITs, NITs, IIMs and AIIMS, over the preceding three years.

    The findings were:

    1. 97% of all jobs and educational seats have gone to just 25% of all sub-castes classified as OBCs;
    2. 95% of these jobs and seats have gone to just 10 OBC communities;
    3. 983 OBC communities — 37% of the total — have zero representation in jobs and educational institutions;
    4. 994 OBC sub-castes have a total representation of only 2.68% in recruitment and admissions.

    Conclusion

    • Thus it is visible that a small chunk of communities is enjoying almost the entire OBC reservation.
    • Hence it is a cause of worry and needs due cognizance at a larger level.

     

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  • Nominated Members in Rajya Sabha

    Olympic sprinter PT Usha and music composer Ilaiyaraaja among others have been nominated to the Rajya Sabha in the category of eminent persons nominated by the President.

    Nominated Members in RS

    • Twelve members are nominated to the RS by the President of India for six-year term.
    • This is for their contributions towards arts, literature, sciences, and social services.
    • This right has been bestowed upon the President according to the Fourth Schedule under Articles 4(1) and 80(2) of the Constitution of India.

    Normal composition

    • The present strength is 245 members of whom 233 are representatives of the states and UTs and 12 are nominated by the President.
    • The Rajya Sabha is not subject to dissolution; one-third of its members retire every second year.

    Constitutional provisions for nominated members

    • 80(1)(a) of Constitution of India makes provision for the nomination of 12 members to the Rajya Sabha by the President of India in accordance with provisions of Arts.80(3).
    • 80(3) says that the persons to be nominated as members must be possessing special knowledge or practical experience in respect of such matters as the following namely: Literature, science, art and social service.

    Powers and privileges of such members

    • A nominated member enjoys all the powers and privileges and immunities available to an elected Member of Parliament.
    • They take part in the proceedings of the House as any other member.
    • Nominated members are however not entitled to vote in an election of the President of India.
    • They however have rights to vote in the vice presidential election.
    • As per Article 99 of the Constitution, a nominated member is allowed six months’ time should he join a political party.

    Try this PYQ:

    Consider the following statements:

    1. The Chairman and the Deputy Chairman of the Rajya Sabha are not the members of that House.
    2. While the nominated members of the two Houses of the Parliament have no voting right in the presidential election, they have the right to vote in the election of the Vice President.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

     

    [wpdiscuz-feedback id=”9wzxa97091″ question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

    Also read:

    [Sansad TV] Perspective – Rajya Sabha: The Upper House

     

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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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  • How is Vice-President of India elected?

    The Election Commission has announced that the election to the post of the Vice-President (VP) will be held on August 6, as M. Venkaiah Naidu’s term was coming to an end on August 10.

    About Vice President of India

    • The VP is the deputy to the head of state of the Republic of India, the President of India.
    • His/her office is the second-highest constitutional office after the president and ranks second in the order of precedence and first in the line of succession to the presidency.
    • The vice president is also a member of the Parliament as the ex officio Chairman of the Rajya Sabha.

    Qualifications

    • As in the case of the president, to be qualified to be elected as vice president, a person must:
    1. Be a citizen of India
    2. Be at least 35 years of age
    3. Not hold any office of profit
    • Unlike in the case of the president, where a person must be qualified for election as a member of the Lok Sabha, the vice president must be qualified for election as a member of the Rajya Sabha.
    • This difference is because the vice president is to act as the ex officio Chairman of the Rajya Sabha.

    Roles and responsibilities

    • When a bill is introduced in the Rajya Sabha, the vice president decides whether it is a money bill or not.
    • If he is of the opinion that a bill introduced in the Rajya Sabha is a money bill, he shall refer it to the Speaker of the Lok Sabha.
    • The vice president also acts as the chancellor of the central universities of India.

    Election procedure

    • Article 66 of the Constitution of India states the manner of election of the vice president.
    • The vice president is elected indirectly by members of an electoral college consisting of the members of both Houses of Parliament and NOT the members of state legislative assembly.
    • The election is held as per the system of proportional representation using single transferable votes.
    • The voting is conducted by Election Commission of India via secret ballot.
    • The Electoral College for the poll will comprise 233 Rajya Sabha members, 12 nominated Rajya Sabha members and 543 Lok Sabha members.
    • The Lok Sabha Secretary-General would be appointed the Returning Officer.
    • Political parties CANNOT issue any whip to their MPs in the matter of voting in the Vice-Presidential election.

    Removal

    • The Constitution states that the vice president can be removed by a resolution of the Rajya Sabha passed by an Effective majority (majority of all the then members) and agreed by the Lok Sabha with a simple majority( Article 67(b)).
    • But no such resolution may be moved unless at least 14 days’ notice in advance has been given.
    • Notably, the Constitution does not list grounds for removal.
    • No Vice President has ever faced removal or the deputy chairman in the Rajya Sabha cannot be challenged in any court of law per Article 122.

     

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  • What is the GST Council, what does it do?

    The 47th meeting of the Goods and Services Tax Council began in Chandigarh, almost marking five years of the tax system coming into effect on July 1, 2017.

    What is the GST Council?

    • The GST regime came into force after the Constitutional (122nd Amendment) Bill was passed by both Houses of Parliament in 2016.
    • More than 15 Indian states then ratified it in their state Assemblies, after which the President gave his assent.
    • The GST Council – a joint forum of the Centre and the states — was set up by the President as per Article 279A (1) of the amended Constitution.
    • The members of the Council include the Union Finance Minister (chairperson), the Union Minister of State (Finance) from the Centre.
    • Each state can nominate a minister in-charge of finance or taxation or any other minister as a member.

    Why was the Council set up?

    • The Council, according to Article 279, is meant to “make recommendations to the Union and the states on important issues related to GST, like the goods and services that may be subjected or exempted from GST, model GST Laws”.
    • It also decides on various rate slabs of GST.
    • For instance, an interim report by a panel of ministers has suggested imposing 28 per cent GST on casinos, online gaming and horse racing.
    • A decision on this will be taken at the Council meeting.

    What has changed this time?

    • The ongoing meeting is the first since a decision of the Supreme Court in May this year, which stated recommendations of the GST Council are not binding.
    • The court said Article 246A of the Constitution gives both Parliament and state legislatures “simultaneous” power to legislate on GST .
    • Recommendations of the Council are the product of a collaborative dialogue involving the Union and States.
    • This was hailed by some states, such as Kerala and Tamil Nadu, who believe states can be more flexible in accepting the recommendations as suited to them.

    Agenda in this meet

    • The council’s meeting is also likely to focus on the issue of extension of the GST compensation regime beyond June 2022.
    • This was a special mechanism by which states were assured that their revenues would not be affected by the new GST system.
    • Some states are already demanding that the compensation be continued.
    • Earlier, the Council had agreed to extend the levy of compensation cess till 2026, but only for repayment of the borrowings made in the aftermath of the pandemic to provide compensation to states.

     

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  • What is SC’s ‘Kihoto Hollohan’ Judgment?

    As the political battle in Maharashtra moves to the Supreme Court, the role and powers of the Deputy Speaker are in focus.

    In the context of the crisis, references have been made to the landmark judgment in ‘Kihoto Hollohan vs Zachillhu And Others’ (1992).

    What is the ‘Kihoto Hollohan’ case?

    • A constitutional challenge to the Tenth Schedule was mounted, which was settled by the apex court in ‘Kihoto Hollohan’.
    • The principal question before the Supreme Court in the case was whether the powerful role given to the Speaker violated the doctrine of basic structure.
    • In this judgment, the Supreme Court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
    • The Supreme Court laid down the doctrine of basic principle in its landmark judgment in ‘Kesavananda Bharati vs State Of Kerala’ (1973).

    What does the Tenth Schedule of the Constitution say?

    • The Tenth Schedule was inserted in the Constitution by the Constitution (Fifty-Second Amendment) Act, 1985.
    • It provides for the disqualification of Members of Parliament and state legislatures who defect.
    • It describes the Speaker’s sweeping discretionary powers to make decisions on case of defection.

    What did the Supreme Court rule in ‘Kihoto Hollohan’?

    • The petitioners in ‘Kihoto Hollohan’ argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias.
    • The majority judgment authored by Justices M N Venkatachaliah and K Jayachandra Reddy answered this question in the affirmative. It read-
    1. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.
    2. They are expected to and do take far reaching decisions in the Parliamentary democracy.
    3. Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.
    4. The provisions were “salutory and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.”

    What was the dissenting opinion?

    • Justices Lalit Mohan Sharma and J S Verma dissented and took a different view.
    • The tenure of the Speaker, who is the authority in the Tenth Schedule to decide this dispute, is dependent on the continuous support of the majority in the House.
    • Therefore, he does not satisfy the requirement of such an independent adjudicatory authority.
    • They advocated for an independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House,
    • This is envisaged as an attribute of the democratic system which is a basic feature of our Constitution.

    What about the role of the Deputy Speaker?

    • Article 93 of the Constitution mentions the positions of the Speaker and Deputy Speaker of the House of the People (Lok Sabha), and Article 178 contains the corresponding position for Speaker and Deputy Speaker of the Legislative Assembly of a state.
    • Maharashtra has been without a Speaker since February 2021, and Deputy has been carrying out the responsibilities of the position.
    • Article 95(1) says: “While the office of Speaker is vacant, the duties of the office shall be performed by the Deputy Speaker”.
    • In general, the Deputy Speaker has the same powers as the Speaker when presiding over a sitting of the House.
    • All references to the Speaker in the Rules are deemed to be references to the Deputy Speaker when he presides.

     

    Try this PYQ:

    Q.Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection?

    (a) Second Schedule

    (b) Fifth Schedule

    (c) Eighth Schedule

    (d) Tenth Schedule

     

    [wpdiscuz-feedback id=”yhd0einabr” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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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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  • Democratic Backsliding in America

    Context

    With the US Supreme Court’s overturning of abortion as a constitutionally guaranteed right, America has taken another step towards democratic backsliding.

    Background of the Roe v Wade case

    • Bodily autonomy: Roe, the 1973 outcome of an unmarried woman’s crusade for bodily autonomy, had declared overbroad, and consequently unconstitutional, a provision of the Texas Penal Code which permitted only those abortions that were “procured or attempted by medical advice to save the life of the mother”.
    • Right to abortion: While locating the right of privacy within the guarantee of personal liberty enshrined in the fourteenth amendment of the American constitution, Roe embodies a supervening constitutional right to abortion emanating from this right of privacy.
    • The right to abort was held to be a constitutionally protected right within the right of privacy.
    • Recognition of states’ rights: The decision simultaneously recognised the state’s interest in protecting the life of the foetus as also the life of the mother. 
    • Roe is not only relevant as a progressive trailblazer for reproductive rights in the United States but is also fundamental to constitutional jurisprudence globally for the interpretative tools it employed.

    Overturning of Roe Vs Wade case

    • The US Supreme Court on June 24 overturned a half-century-old right to abortion, granted by a 1973 Supreme Court decision in the Roe vs Wade case.
    • No nationwide right to abortion: With a 5-4 majority, the court has said that American women have no nationwide right to abortion.
    • Rather, state legislatures should decide whether women can have that right in their respective states.
    • Concerns about the life of the unbors: In the court’s opinion, the right to privacy stemming from the 14th Amendment is not relevant, for abortion concerns not only the pregnant woman but also the life of the unborn.
    • Not mentioned in the 1787 constitution: Moreover, the court said, abortion is neither “enumerated” as a right in the original 1787 constitution nor is it consistent with American history and tradition.
    • Taking away the right once granted: In a democracy, can a right once granted be taken away?
    • As the world’s oldest surviving democracy, the United States has figured prominently in this debate.
    • With the overturning of Roe vs Wade, this debate has now become wider.

    Was the right to abortion constitutionally justified?

    • Protection of liberty and privacy: The 1973 court decision allowing the right to abortion was based on the 14th Constitutional Amendment (1868).
    • Even though abortion was not mentioned in the 1787 US Constitution, abortion’s defence was derived from the 1868 Amendment
    • This Amendment, the court said, allowed protection of liberty and privacy, something the state could not impinge upon.
    • Not absolute right: The 1973 court also argued that this right was not absolute, limited as it would be by considerations of “protecting potential life”.

    Issues with the overturning of Roe Vs. Wade case

    • 1] No constitution can anticipate the evolution of rights:  Abortion was not mentioned in the 1787 constitution, nor explicitly in the 1868 amendment.
    • That is because women were not autonomous political agents at that time.
    • Until they were given the right to vote in 1920, they were not a constitutional category in the US, as was true virtually everywhere in the world.
    • Women are autonomous agents today. Norms change; rights evolve.
    • 2] Ignores rape and incest:  As the court’s dissent note puts it, this majority decision ignore rape and incest.
    • If abortion as a right is dissolved, women can be forced to give such unwanted births.
    • The majority decision of the court is silent on this important matter.
    • 3] Against the right to participate equally in economic and social life: Having a child is not simply a deeply moral obligation to the unborn.
    • It is also a decision that affects “the ability of women to participate equally in (the nation’s) economic and social life”.
    • These words are from a later decision, known as Casey (1992), when the US Supreme Court added the concept of “undue burdens” to support the idea of abortion.
    • 4] Right over body ignored: Men don’t have to deal physically with pregnancy, whereas the foetus grows inside a woman’s body for nine months.
    •  If men have the right over their bodies, which can’t be taken away by the government,then women should also have autonomy over their bodies as well.
    •  Maternity must be a voluntary choice.
    • There is no going back to the notion of rights as they were viewed in the 18th century — unequal, unneutral, unbalanced.

    Conclusion

    Typically, as they evolve and deepen, democracies allow the arc of rights to broaden further, not retreat. After this judgment in the US, the stakes have become much higher and the democratic challenges bigger.

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