19 Dec 2023 : The Hindu Editorial

Editorial 1 : The hollowing out of the anti-defection law

Context: The merger exception should be deleted from the Tenth Schedule

Introduction

• It is highly unlikely that political defections as well as India’s anti-defection law will ever not be a part of public discourse.
• The Speaker of the Maharashtra Assembly, Rahul Narwekar, is currently juggling his responsibilities of presiding over the Assembly’s winter session alongside hearing the disqualification petitions against the rival factions of the Shiv Sena.
   

Anti-defection law

• The anti-defection law, found under the Tenth Schedule of the Constitution, was enacted to curb frequent floor-crossing by legislators.
• It provides for the disqualification of elected legislators from the legislature in instances where they voluntarily switch parties or vote against the party’s direction.
• But when two-thirds of elected members of a party agree to “merge” with another party, they become exempt from disqualification.
• Before 2003, there was a provision where, if as a result of a split in the original party, one-third of the members of the legislature moved out of the party, they were exempt from disqualification. However, given its excessive misuse, the provision was omitted by the 91st Amendment to the Constitution.

Role of Presiding officer

• According to the Tenth Schedule, the decision on whether to disqualify a member from the House is taken by the Speaker or the Chairman. In such cases, the presiding officer’s decision is final.
• The Supreme Court has held that the provision granting finality to the order of the speaker/chairman is valid. While functioning under the Tenth Schedule, the presiding officer acts as a tribunal and exercises judicial power. Decisions taken in such capacity are subject to judicial review.
• However, while judicial review is permissible, it should not cover any stage prior to the presiding officer taking a decision on the question of disqualification.
• It is important that the decisions taken by the presiding officer under the Tenth Schedule are impartial and independent of political considerations. The role of the presiding officers is such that they are assumed to be impartial.
• However, in several instances it has been seen that the presiding officers do not disqualify legislators or delay the decisions regarding disqualifications, therefore putting their allegiance into question.
• The minority view in Kihoto Hollohan had held that the Speaker is dependent on continuous support of the majority in the House. 
• Thus, he does not meet the requirement of an independent adjudicating authority under the Tenth Schedule. The Law Commission (2015) noted that legal challenges against decisions taken by Speakers on disqualification erode the confidence placed in the office of the Speaker. The Commission recommended that the power to decide on questions of disqualification on the ground of defection should be vested with the President or the Governor, who should act on the advice of the Election Commission of India (ECI).

Chinks in the armour

• Political defections have persisted and, more worryingly, gone unpunished or undetected. Owing to the deft use of the exemptions under the Tenth Schedule, political parties have caused democratically elected State governments to fall.
• In the last 10 years alone, group defections have caused the unravelling of State governments in Maharashtra, Madhya Pradesh, Manipur, Karnataka, and Arunachal Pradesh.
• With the split exception gone, the only protection available to group defectors is that of a merger.

‘Splits followed by mergers.’

• A brief survey by the Vidhi Centre for Legal Policy, of disqualification petitions filed under the Tenth Schedule before the Speaker of the Uttar Pradesh Legislative Assembly (1990-2008), revealed another practice which can be loosely termed as “splits followed by mergers”.
• In this trend, an elected legislator (or a group of legislators) would separate from the political party they belonged to and avail themselves of the exemption given to splits between political parties by forming a group of one-third MLAs of the legislature party.
• After that, the entire group of splitting legislators would merge with another party. Given that they would merge in full, they would meet the threshold of two-third of the MLAs required to effectuate a merger with another party.
• From the disqualification petitions surveyed in U.P., several occurrences of splits followed by mergers emerged. In 2003, U.P. MLA Rajendra Singh Rana from the Bahujan Samaj Party, along with 36 MLAs, split to form the Loktantrik Bahujan Dal (LBD). In the same year, these 37 MLAs of the LBD merged with the Samajwadi Party (SP).

A potent tool

• Splitting and merging MLAs were exempted from disqualification under the Tenth Schedule to protect instances of principled defections, especially where MLAs found themselves at odds with the ideology of their original party.
• However, the practical use of these exceptions belies this expectation, with mergers being engineered strategically to bring down elected governments.
• The very provisions of the anti-defection law have become a potent tool in the hands of political parties to defeat the object of the law.
• The way in which the merger provision has come to be used also fuels speculation. In Karnataka, for instance, Janata Dal (Secular) leader H.D. Kumaraswamy predicted the downfall of the incumbent Congress government spurred by the exit of 50-60 MLAs.
• Irrespective of the veracity of these claims, such speculation is not conducive for the seamless working of a representative democracy.

Way forward

• No provision of law should be a fallback option for parties in the Opposition to upend democratically elected governments. The merger exception should be deleted from the Tenth Schedule. That should be the first step towards ridding the Tenth Schedule of its ailments, after which other steps should follow.

Editorial 2 : Legislative decline

Context: Denial of legislative debate furthers democratic backsliding in India

Introduction

• Both the security breach in Parliament last week featuring a theatrical attempt by individuals to highlight an issue of public importance — unemployment — and the Union government’s response have been deeply problematic.

Suspending MPs.

• The government’s stymieing of any debate over this issue in Parliament and the Chair’s recourse to an unprecedented high number of suspensions of Opposition legislators following their demand for a statement in the Houses and a debate, have been in line with its disregard for deliberative democracy.

Suspension rules

• As per the Rule Number 373 of the Rules of Procedure and Conduct of Business “The Speaker, if is of the opinion that the conduct of any Member is grossly disorderly, may direct such Member to withdraw immediately from the House, and any Member so ordered to withdraw shall do so forth with and shall remain absent during the rest of the day’s sitting.
  • According to the Rule 374, the Speaker may name a member if deems it necessary, who disregards the authority of the Chair or abuses the rules of the House by persistently and wilfully obstructing the business thereof.
  • As per Rule 374A, in case of gross violation or severe charges, on being named by the Speaker, the member stands automatically suspended from the service of the House for five consecutive sittings or the remainder of the session, whichever is less.
• The Chairman of Rajya Sabha is empowered under Rule Number 255 to "direct any Member whose conduct is in his opinion grossly disorderly to withdraw immediately" from the House.
  • The Rule 256 provides for suspension of members. The Chairman can suspend a member from the service of the Council for a period not exceeding the remainder of the Session.
     

Deliberation important for functioning democracy

• The hallmark of a functioning democracy is deliberation, wherein elected legislators debate and discuss issues of public import and seek solutions to issues that affect citizens.
• A thorough deliberation involves not just televised speeches from Parliament but also debates, the utilisation of parliamentary and standing committees to delve into the issue and for Bills and legislation to be discussed threadbare before consideration.
• Instead, over the course of recent parliamentary sessions during the National Democratic Alliance’s tenure, there have been multiple attempts at browbeating the Opposition, getting Bills passed without adequate discussion, disallowing amendments on merit, and under-utilising standing and parliamentary committees while trying hard to play to the gallery.
• Legislative business and parliamentary work have been given short shrift, while theatrics by legislators in both the Treasury and Opposition benches, and one-upmanship through the use of suspensions, have dominated proceedings.

Global democracy reports

• It is no wonder that such actions have compelled global democracy reports by research institutions such as V-Dem Institute to characterise India’s democracy as an “electoral autocracy”.
• Worse, the use of the draconian Unlawful Activities (Prevention) Act to indiscriminately target dissenters, such as the protesters who threw canisters and raised slogans in Parliament last week, has also fallen into the recent pattern of a deliberate equation of dissent with terror.
• Again, this has led the U.S.-based Freedom House, that measures civil and political liberties, to declare India as “partially free”.

Conclusion

• The recent actions by the government only contribute further to the backsliding of democracy in India, making these developments a matter of serious concern.

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