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Subject: Polity

  • Merger of political parties under Tenth schedule

    A political party is trying to win back its defected MLAs in Rajasthan. This has raised a new question- “Does the anti-defection law apply here?”

    Try this question for mains:

    Q.“Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.

    What does “merger” mean a/c to Tenth Schedule?

    • 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.

    The ‘merger’ Politics

    • The political party is arguing 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.
    • In this case, it would be the Rajasthan Legislative unit of the BSP and not the BSP at the national level.
    • Paragraph 1 of the Tenth Schedule which defines terms specified in the context of the anti-defection law states this clearly.
    • “Legislature Party” for the purposes of Paragraph 4 (which deals with mergers) means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions.

    Role of Whip

    • Every legislative party identifies the party’s whip at the beginning of the Assembly’s term and conveys this to the Speaker.
    • A national leader’s direction cannot be considered a whip in the context of the anti-defection law.

    On what grounds is the case-based?

    • The contention is that the merger is illegal and unconstitutional because, for a national party, such merger has to take place at the national level.
    • Supporting this argument, there are two decisions of the Supreme Court: the 2006 Jagjit Singh v State of Haryana, and the 2007 ruling in Rajendra Singh Rana and Ors vs Swami Prasad Maurya.
    • In these cases, the SC ruled that the split cannot be recognised primarily because not all these MLAs split at once.
    • The key aspect is that these cases deal with splits where when one-third of the members of a legislative party split; they could not attract disqualification as per Paragraph 3 of the Tenth Schedule.

    Row over one-third

    • In 2003, through the 91st Constitutional Amendment, Paragraph 3 was deleted from the Tenth Schedule.
    • The amendment was made as the one-third split rule was grossly misused by parties to engineer divisions and indulge in horse-trading.
    • One-third was regarded as an easy target to achieve and the law now exempts defection only when it is at two-thirds (in a merger).

    Are there any such precedents?

    • In July 2019, 10 of the 15 one party’s MLAs in Goa joined the other taking the ruling party’s tally to 27 in the 40 member House.
    • Since they formed two-thirds of the strength of the legislative party unit, they are exempt from disqualification.
    • However, the Speaker’s decision not to disqualify them is under challenge before the Supreme Court.
    • Similarly in Telangana in 2016, two years after the 12 out of 15 of MLAs joined the ruling party.
    • The Speaker recognised the defection as a merger since more than two-thirds had moved.

  • Protesting is a fundamental right: UN

    As authorities worldwide grapple with demonstrations over issues like political rights and racial justice, a UN committee has reaffirmed that protesting peacefully, online or in person, is a fundamental human right.

    Practice question for mains:

    Q.There is an urgent need for reforming the criminal justice system in India in light of rising cases of custodial torture and killings. Comment.

    What is the news?

    • The independent experts on the Human Rights Committee published a fresh interpretation of the right of peaceful assembly.
    • It offered comprehensive legal guidance about where and how it applies and also outlining governments’ obligations.
    • The committee is tasked with monitoring how countries implement the International Covenant on Civil and Political Rights (ICCPR), which under Article 21 guarantees the right to peaceful assembly.

    About ICCPR

    • The ICCPR is a multilateral treaty adopted by UN General Assembly Resolution on 16 December 1966, and in force from 23 March 1976.
    • The covenant commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial.
    • As of September 2019, the Covenant has 173 parties and six more signatories without ratification.
    • It is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR).
    • It is monitored by the UN Human Rights Committee (a separate body to the UN Human Rights Council).

    Back2Basics: Article 21

    • Article 21 is the protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to the procedure established by law.
    • The Article prohibits the deprivation of the above rights except according to a procedure established by law.
    • Article 21 applies to natural persons. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right.
    • It, however, does not entitle a foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e).

  • The issue of powers of Speaker and Court

    The article examines the larger issue of powers of the Speaker under 10th Schedule and the current interim order of the Rajasthan High Court.

    Context

    • The Rajasthan High Court had admitted the petition by the Congress faction group challenging the notice of the Speaker.
    • In the interim order, the High Court had ordered to maintain the status quo.

    Why Kihoto Hollohan Case matters

    • The Kihoto Hollohan decision of the Supreme Court delivered in 1992 forms the basis in such decisions.
    • The Constitution Bench which heard it was split 3:2.
    • The majority on the bench upheld the constitutionality of the Tenth Schedule of the Constitution.
    • The High Court is not empowered to unsettle Kihota Hollohan and must apply its ratio that the Chairman/Speaker is the final arbiter on the disqualification of a member.
    • Rajasthan High Court has raised the issue about whether disqualification under Tenth Schedule is applicable in the case of “intra-party dissent”.
    • Para 2(1) a of 10th Schedule deals with disqualification of a member of a House belonging to any party “if he has voluntarily given up his membership of such political party”.

    Let’s look at what the Supreme Court said  in Kihoto Hollohan case:

    “paragraph 2 of the Tenth Schedule of the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected members of Parliament and the legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended”.

    Consider the question “Examine the issue of powers of Speaker/Chairman in the matters of disqualification of the member against the powers of the Courts in such matters. What are the reasons for frequent frictions between the two authorities on this matter?”

    Conclusion

    The high courts and the Supreme Court routinely refuse to interfere in matters where the concerned authority has merely issued a show-cause notice or granted an opportunity of being heard. So, it must fix the issue raised by the Rajasthan High Court interim order.

  • When can a Governor use his discretion, how has the SC ruled?

    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.

    Try this question for mains:

    Q. “Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.

    Who has the powers to summon the House?

    • It is the Governor acting on the aid and advice 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.

    What has the Supreme Court said in the past about the Governor’s power to summon the House?

    • It is settled law 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.

    What did the SC say in the Arunachal case?

    • Referring to discussions in the Constituent Assembly, the court noted that the framers of the Constitution expressly and consciously left out vesting powers to summon or dissolve the House solely with the Governor.
    • It said that the powers of the Governor were substantially altered to indicate that the framers did not want to give Governors the discretion.
    • The Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of Ministers (CoM) with the Chief Minister as the head and not at his own, said the Court.

    When can a Governor use his discretion?

    • Article 163(1) of the Constitution says that “there shall be a CoM with the CM at the head to aid and advice the Governor in the exercise of his functions, except some conditions for discretion.
    • However, in the 2016 case, the apex court has defined the circumstances if the aid and advice of CoM are binding on the Governor.
    • When the chief minister has lost the support of the House and his strength is debatable, then the Governor need not wait for the advice of the CoM to hold a floor test.

    Novel situations are created these days

    • Generally, when doubts are cast on the chief minister that he has lost the majority, the opposition and the Governor would rally for a floor test.
    • The ruling party may attempt to stall the process to buy time and keep its flock together.
    • In a puzzling situation, in Rajasthan’s case, despite requests from CM, the Governor has returned requests to call for a session.
    • However, in the current case, the rebel MLAs have not defected from their party but have repeatedly stated before the Rajasthan HC that they are merely expressing their dissent within the party.

    Back2Basics: Governor’s Discretionary Powers

    The governor can use his/her discretionary powers:

    • When no party gets a clear majority, the governor has the discretion to choose a candidate for the chief minister who will put together a majority coalition as soon as possible.
    • He can impose president’s rule.
    • He submits reports on his own to the president or on the direction of the president regarding the affairs of the state.
    • He can withhold his assent to a bill and send it to the president for his approval.
    • During emergency rule per Article 353, he can override the advice of the council of ministers if specifically permitted by the president.

  • Issues with contempt of court

    The article discusses the issues that law for contempt of the court give rise to. The practice has monarchical origins. Its continuance conflicts with the ideals of democracy. 

    Objective

    • The objective for contempt is stated to be to safeguard the interests of the public if the authority of the Court is denigrated and public confidence in the administration of justice is weakened or eroded.
    •  Need to “respect the authority and dignity of the court” has monarchical origins.

    Issues in India

    • With adjudicatory role having been handed over to judges, showing extreme deference to judges does not sit well with the idea of a democracy.
    • But the definition of criminal contempt in India is extremely wide, and can be easily invoked.
    •  Justice V.R. Krishna Iyer famously termed the law of contempt as having a vague and wandering jurisdiction, contempt law may unwittingly trample upon civil liberties.
    • Criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right.
    • Excessively loose use of the test of ‘loss of public confidence’, combined with a liberal exercise of suo motu powers, can be dangerous.
    •  It can amount to the Court signalling that it will not suffer any kind of critical commentary about the institution at all.

    Lessons from other democracies

    • Contempt has practically become obsolete in foreign democracies.
    • Canada ties its test for contempt to real, substantial and immediate dangers to the administration.
    • American courts also no longer use the law of contempt in response to comments on judges or legal matters.
    • In England, too, the legal position has evolved.

    Approach of Indian judiciary

    • Truth and good faith were not recognised as valid defences until 2006, when the Contempt of Courts Act was amended.
    • Indian courts have not been inclined to display the same maturity and unruffled spirit as their peers in the other democracies.

    Consider the question  “A law for criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right. Examine the issue in India context and suggest the major to strike the balance.”

    Conclusion

    Besides needing to revisit the need for a law on criminal contempt, even the test for contempt needs to be evaluated. If such a test ought to exist at all, it should be whether the contemptuous remarks in question actually obstruct the Court from functioning. It should not be allowed to be used as a means to prevent any and all criticism of an institution.

  • Governor’s Discretionary Powers in Assembly Deadlock

    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.

    Try this question for mains:

    Q. “Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.

    Resolving the deadlock

    • The judgment is significant in the present deadlock between the CM and the Governor over the summoning of an Assembly session for a floor test.
    • The Governor can summon, prorogue and dissolve the House only on the aid and advice of the Council of Ministers with the Chief Minister as the head.

    The Nabam Rebia Case

    • The five-judge Constitution Bench judgment of the Supreme Court cited the Nabam Rebia versus Deputy Speaker on July 13, 2016.
    • It held that a Governor cannot employ his ‘discretion’, and should strictly abide by the “aid and advice” of the Cabinet to summon the House.
    • It held that the discretionary power of the Governor is extremely limited and entirely liable to judicial review.
    • The judgment was a consequence of then Arunachal Pradesh Governor J.P. Rajkhowa’s decision to advance the Assembly session, a move which led to unrest in the State and resulted in the President’s rule.
    • The Constitution Bench held Mr. Rajkhowa’s decision to be a violation of the Constitution.

    Governor’s discretion: Limited to specified areas

    • The Supreme Court 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 court said the Governor’s 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 which has lost of confidence but refuses to quit, etc.

    Back2Basics: Governor’s Discretionary Powers

    The governor can use his/her discretionary powers:

    • When no party gets a clear majority, the governor has the discretion to choose a candidate for the chief minister who will put together a majority coalition as soon as possible.
    • He can impose president’s rule.
    • He submits reports on his own to the president or on the direction of the president regarding the affairs of the state.
    • He can withhold his assent to a bill and send it to the president for his approval.
    • During emergency rule per Article 353, he can override the advice of the council of ministers if specifically permitted by the president.

  • Case for presidential system

    The article brings out the flaws in the parliamentary system of government in India and makes the case for the parliamentary system.

    Problems with our parliamentary system

    • Our parliamentary system has created a unique breed of legislator, largely unqualified to legislate.
    • Those legislators has sought election only in order to wield executive power.
    • It has produced governments dependent on a fickle legislative majority.
    • Fickle majority leads the government to focus more on politics than on policy or performance.
    • Current system has distorted the voting preferences of an electorate that knows which individuals it wants to vote for but not necessarily which parties.
    • It has given rise to parties that are shifting alliances of selfish individual interests, not vehicles of coherent sets of ideas.
    • It has forced governments to concentrate less on governing than on staying in office, and obliged them to cater to the lowest common denominator of their coalitions.

    Problems with party system in India

    •  Parliamentary system, devised in Britain — is based on traditions which simply do not exist in India.
    • The parties in England are clearly defined, each with a coherent set of policies and preferences that distinguish it from the next.
    • In India, a party is all-too-often a label of convenience which a politician adopts and discards frequently.
    • So, a politician changing a party is not treated as an unusual event in India.
    • In the absence of a real party system, the voter chooses not between parties but between individuals.
    • The candidates are usually chosen on the basis of their caste, their public image or other personal qualities.
    • So, voters vote for a legislature not to legislate but in order to form the executive.

    4 Problems with choosing executive from Parliament

    • 1) It limits executive posts to those who are electable rather than to those who are able.
    • Though he can bring some members in through the Rajya Sabha, but it too has been largely the preserve of full-time politicians, so the talent pool has not been significantly widened.
    • 2) It puts a premium on defections and horse-trading. The anti-defection Act of 1985 has failed to cure the problem.
    • 3) Legislation suffers. Most laws are drafted by the executive — in practice by the bureaucracy.
    • The ruling party inevitably issues a whip to its members in order to ensure unimpeded passage of a bill.
    • The parliamentary system does not permit the existence of a legislature distinct from the executive.
    • Accountability of the government to the people, through their elected representatives, is weakened.
    • 4) For those parties who do not get into government Parliament or Assembly serves as a theatre for the demonstration of their power to disrupt.

    Case for presidential system

    • A directly elected chief executive at Centre and State would be free from vulnerabilities of coalition support politics, would have the stability of tenure free from a legislative whim.
    • He/she will be able to appoint a cabinet of talents, be able to devote his or her energies to governance, and not just to government.
    • The Indian voter will be able to vote directly for the individual he or she wants to be ruled by.
    • The president will truly be able to claim to speak for a majority of Indians rather than a majority of MPs.

    The risk of dictatorship

    • The only serious objection to the presidential system is that it carries with it the risk of dictatorship.
    • The fear is of an imperious president, immune to parliamentary defeat and impervious to public opinion, ruling the country by fiat.
    • But under the current parliamentary system, a leader with absolute majority and subservient legislature could act in the same manner.

    Consider the question “Examine the differences between the presidential system and the parliamentary system of government. Do you think that the parliamentary system has served well in the Indian context?”

    Conclusion

    With the needs and challenges of one-sixth of humanity before our leaders, we must have a democracy that delivers progress to our people.

  • Relations between judiciary and legislature

    The article discusses the relation between the judiciary and the legislature. Recent development in Rajasthan assembly serves as the backdrop.

    Context

    • The political tussle in Rajasthan entered the High Court and the Supreme Court.
    • The Supreme Court itself proposed to rule on the larger question of the jurisdiction of courts to entertain such pleas.

    Historical background

    • The President of India made a presidential reference to the Supreme Court on the relative powers of legislative assemblies and constitutional courts.
    • The Supreme Court held that there is a broad separation of essential powers of each organ of the State.
    • However, the Court went on to hold that a judge who entertains a petition challenging any order of the legislature does not commit contempt of the said legislature.
    • Since then court have restrained themselves from interfering in the workings of legislative assemblies or Parliament is concerned.
    • The sole exception is under the anti-defection law-after a final order of disqualification has been passed.

    Let’s look into Kihoto Hollohan’s case

    • Constitution bench of the Supreme Court in 1992 held that the Speaker acting in a disqualification matter acts as a tribunal and is subject to judicial review.
    • However, the same judgment makes it clear that the Court will not intervene at an interim stage.
    • The same judgment further holds the Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.

    Let’s now look into Rajasthan episode

    • In this case, issuance of a possible disqualification notice by the Speaker, has been contested in constitutional courts.
    •  Even in routine petitions against notices of proposed administrative actions, the petitioner is told to answer the show cause notice and to challenge the final action only.
    • The Rajasthan High Court, however, entertained a petition to challenge the Speaker’s authority to decide, if MLAs had committed an act of defection.
    • The Rajasthan High Court reserved its judgment, requested the Speaker to defer further proceedings and proceeded to direct him to await judgment.

    Co-equality of Constitutional authorities

    • Rajasthan assembly Speaker moved the Supreme Court, questioning the court’s power to direct a Constitutional authority.
    • The principle of law applied is that Constitutional authorities cannot issue directions to each other.
    • They can, at best, make a polite request.
    • The single judge in Calcutta, recorded in his judgment that the Supreme Court was only co-equal with the High Court, as a Constitutional Court.
    • Appellate powers of the Supreme Court did not make it a superior authority to which the High Court was subordinate.
    • Ever since, the Supreme Court has been careful to couch its orders as requests to any High Court, or Constitutional authority.
    • Constitutional courts have followed the same principle, in addressing other Constitutional authorities.

    Role of judiciary in maintaining the balance

    • Unnecessary conflict between organs of state may well invite some Speaker, backed by a solid majority at State and Centre, to defy the courts.
    • Courts are apolitical but keep getting pulled into political thickets, especially in matters of mass defections resulting in regime change.
    • The walls of separation between constitutional organs, once breached, cannot be then repaired against future intrusions.

    Consider the question “Analyse fine balance Indian Consitution strikes between the various Constitutional authorities. Also examine how role of judiciary in dealing with the anti-defection law.”

    Conclusion

    Even under a sovereign Constitution, parliamentary and legislative supremacy in their areas of working must be respected.

  • Time to revisit the practice of floor test

    The growing trend of the toppling of the government by luring the MLAs of ruling party. The SC needs to reconsider the floor test usually ordered in such cases. The article analyses this issue here.

    Reading Article 191(2) and 10th Schedule

    • Article 191(2) declares that a person shall be disqualified from being a member of the legislative assembly or legislative council of a state if he is so disqualified under the Tenth Schedule.
    • The Tenth Schedule to the Constitution contains “provisions as to disqualification on ground of defection”.
    • Tenth Schedule also fixes the relationship between a member and a political party which selected him as a candidate.
    • It also provides one of the grounds for disqualification: “If he voluntarily gives up his membership of such political party”.
    • The decision as to disqualification is left to the absolute discretion of the Speaker.

    Constitutional morality and 10th Schedule

    • Tenth Schedule brings to the fore the need to emphasise “constitutional morality”.
    • Constitutional morality means “strict adherence to the core principles of constitutional democracy”.
    • So, Constitutional transgressions by MLAs coming through a “party platform” to serve the people for five years (Article 172), cannot be accepted.
    • In so doing, these MLAs forget the oath, taken under Article 188 of the Constitution to bear true faith and allegiance to the Constitution of India as established by law.
    • Legislators do not have absolute freedom to behave in any way they like.

    Issues with the floor test

    • When ruling party MLAs are lured with rewards, political or otherwise, then the “floor test” becomes constitutionally immoral and unjust.
    • This will amount to circumventing the Tenth Schedule through engineered defections through the judicial process.
    • It is high time the judiciary revisited the use of a “floor test” to prove a majority in a legislature.

    Consider the question “Examine the ways in which a member of the house is deemed to have given up his membership under the 10th Schedule as interpreted in the various judgements. Also, analyse the implications of conducting a floor test in a situation when members of the ruling party are lured with rewards.”

    Conclusion

    Judiciary must take note of the toppling of the majority government through luring of the MLAs and subsequent floor test by the courts. The floor test in such a situation needs reconsideration.

  • Judicial intervention in Anti-defection Proceedings

    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.

    Try these questions:

    Q. “The anti-defection law works best as an insurance against violation of the people’s mandate for a party, but it cannot be made a tool to stifle all dissent.” Discuss.

    —–

    Q.Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (CSP 2014)

    (a) Second Schedule

    (b) Fifth Schedule

    (c) Eighth Schedule

    (d) Tenth Schedule

    What is the issue?

    • 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 HC order was an affront to the powers of the Speaker.
    • 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).

    Backed by Tenth Schedule

    • The petition said that judicial review of ongoing anti-defection proceedings was limited.
    • Notice is much prior to any final determination or decision on disqualification.
    • The proceedings, including the notice, are in the realm of the legislative proceedings under Paragraph 6(2) of the Tenth Schedule, the Speaker’s office argued.

    Citing the Kihoto Hollohan case

    • 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.

    Must read:

    https://www.civilsdaily.com/news/kihoto-hollohan-order-1992/

    What does the dissident MLAs have to say?

    • The dissident MLAs had challenged the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification.
    • The MLAs had argued that the provision infringed their right to dissent.
    • But the Speaker’s office countered that Paragraph 2 (1)(a) of the Tenth Schedule was the law of the land.
    • A mere challenge to its constitutionality cannot efface it from the statute book.

     

    Back2Basics

    https://www.civilsdaily.com/news/explained-anti-defection-law-and-its-evolution/