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Subject: Polity

  • 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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  • In news: Pardoning Power of the President

    The Supreme Court has held that the Centre was “bound to advise” the President to remit the life sentence of gangster Abu Salem in the 1993 Mumbai blasts case on his completion of 25 years of his jail term.

    What did the SC say?

    • On the appellant completing 25 years of his sentence, the Central government is bound to advise the President for the exercise of his powers under Article 72 of the Constitution.
    • The Centre could itself consider remission on the completion of 25 years’ sentence in terms of Sections 432 and 433 of the Code of Criminal Procedure.

    What is Pardon?

    • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

    Why need Pardon?

    • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
    • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
    • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

    What is the Article 72?

    • Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense.
    • There are five different types of pardoning:
    1. Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
    2. Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
    3. Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
    4. Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
    5. Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty year rigorous imprisonment to ten years.

    Cases as specified by art. 72

    In all cases where the punishment or sentence:

    • is by a court-martial
    • is for an offence against any law relating to a matter to which the executive power of the Union extends
    • is a sentence of death

    Nature of the Pardoning Power

    • The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
    • This has not been discussed by the constitution but is the practical truth.
    • Further, the constitution does not provide for any mechanism to question the legality of decisions of presidents or governors exercising mercy jurisdiction.
    • But the SC in Epuru Sudhakar Case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
    • The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

    Some traditions

    • It is important to note that India has a unitary legal system and there is no separate body of state law.
    • All crimes are crimes against the Union of India.
    • Therefore, a convention has developed that the governor’s powers are exercised for only minor offenses.
    • While requests for pardons and reprieves for major offenses and offenses committed in the UTs are deferred to the President.

    Try this PYQ:

    Who/Which of the following is the custodian of the Constitution of India?

    (a) The President of India

    (b) The Prime Minister of India

    (c) The Lok Sabha Secretariat

    (d) The Supreme Court of India

     

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  • KHADC to invite talks on Instrument of Accession

    The Khasi Hills Autonomous District Council (KHADC) in Meghalaya has called for a meeting of traditional heads to revisit the Instrument of Accession that made the Khasi domain a part of the Indian Union.

    About KHADC

    • KHADC is an autonomous district council in the state of Meghalaya in India.
    • It is one of the three autonomous district councils within Meghalaya, and one of twenty-five autonomous regions of India.
    • Meghalaya is divided into three regions dominated by as many matrilineal communities — the Khasis, Garos and Jaintias.
    • The Khasi hills straddle 25 Himas or States that formed the Federation of Khasi States.

    Why in news?

    • Some members of the KHADC agreed that the Instrument of Accession and Annexed Agreement signed with the Dominion of India between December 15, 1947 and March 19, 1948, should be studied.
    • The treaty was signed by Governor General of India, Chakravarti Rajagopalachari, on August 17, 1948.

    What is Instrument of Accession?

    • It was a legal document first introduced by the Government of India Act, 1935.
    • It was used in 1947 to enable each of the rulers of the princely states under British paramountcy to join one of the new dominions of India or Pakistan created by the Partition.
    • The instruments of accession executed by the rulers, provided for the accession of states to the Dominion of India (or Pakistan) on three subjects, namely, defence, external affairs and communications.

    Back2Basics: Autonomous District Council (ADC)

    • The Sixth Schedule of the Indian Constitution allows for the formation of autonomous administrative divisions which have been given autonomy within their respective states.
    • Most of these ADC are located in North East India with the exception of two in Ladakh and one in West Bengal.
    • Presently, 10 Autonomous Councils in Assam, Meghalaya, Mizoram and Tripura are formed by virtue of the Sixth Schedule with the rest being formed as a result of other legislations.

    Powers and competencies

    (1) Executive and legislative powers

    Under the provisions of the Sixth Schedule, ADCs can make laws, rules and regulations in the following areas:

    • Land management
    • Forest management
    • Water resources
    • Agriculture and cultivation
    • Formation of village councils
    • Public health
    • Sanitation
    • Village and town level policing
    • Appointment of traditional chiefs and headmen
    • Inheritance of property
    • Marriage and divorce
    • Social customs
    • Money lending and trading
    • Mining and minerals

    (2) Judicial powers

    • ADCs have powers to form courts.
    • They can hear cases where both parties are members of Scheduled Tribes (STs) and the maximum sentence is less than 5 years in prison.

    (3) Taxation and revenue

    • Autonomous district councils have powers to levy taxes, fees and tolls on: building and land, animals, vehicles, boats, entry of goods into the area, roads, ferries, bridges, employment and income and general taxes for the maintenance of schools and roads.

     

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  • 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

     

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    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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