Friday, January 29, 2016

anti-defection law

The anti-defection law was passed by parliament in 1985. Twenty-five years down the road, it is pertinent to trace the several modifications and to evaluate how well the law has worked.

The 52nd amendment to the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection. A member of parliament or state legislature was deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote. That is, they may not vote on any issue in contravention to the party’s whip.  Independent members would be disqualified if they joined a political party. Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.


The law also made a few exceptions. Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post. A party could be merged into another if at least two-thirds of its party legislators voted for the merger. The law initially permitted splitting of parties, but that has now been outlawed.

Experience so far
In the 24 years of this law, complaints have been made against 62 Lok Sabha MPs. Of these, 26 were disqualified. It is pertinent to note that ten of these disqualifications were after the trust vote of July 2008 (over India-US civil nuclear co-operation). Four cases were made against Rajya Sabha MPs (two in 1989 and two in 2008) and all were upheld. In state legislatures, up to 2004, out of 268 complaints, 113 were upheld.
Challenges and Interpretations
The anti-defection law raises a number of questions, several of which have been addressed by the courts and the presiding officers.

Does the law impinge on the right of free speech of the legislators? This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). The court said that “the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct…above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.


What constitutes “voluntarily” resigning from a party? Various judgements and orders indicate that a member who publicly opposes the party or states his support for another party would be deemed to have resigned from his party. News reports may be used as evidence for this purpose.


Can the decision of the presiding officer be challenged in the courts? The law states that the decision is final and not subject to judicial review. The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.

Issues for consideration
Should the law be valid for all votes or only for those that determine the stability of the government (such as the confidence and no-confidence motions)? The main intent of the law was to deter “the evil of political defections” by legislators motivated by lure of office or other similar considerations. However, loss of membership is hardly a penalty in cases ahead of the scheduled time of general elections—as seen last year. It also loses significance if the House is likely to be dissolved. On the other hand, the voting behaviour may be affected even on issues not related to the stability of the government. A member may be unable to express his actual belief or the interests of his constituents. Therefore, a case may be made for restricting the law to confidence and no-confidence motions. The Dinesh Goswami Committee on electoral reforms (1990) recommended this change, while the Law Commission (170th report, 1999) suggested that political parties issue whips only when the government was in danger.

Should the law apply only to pre-poll alliances? The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances. The Law Commission proposed this change with the condition that partners of such alliances inform the Election Commission before the elections.

Should the judgement be made by the presiding officers? Several MPs had raised this issue at the time of passage of the law. The Supreme Court upheld the law in the Kihoto Hollohon judgment.  The Goswami Committee, the Election Commission and the Venkatachaliah Commission to Review the Constitution (2002) have recommended that the decision should be made by the president or the governor on the advice of the Election Commission.  This would be similar to the process for disqualification on grounds of office of profit.

Should there be any additional penalties on defectors? The Venkatachaliah Commission recommended that defectors should be barred from holding any ministerial or remunerative political office for the remaining term of the House. It also said that the vote of any defector should not be counted in a confidence or no-confidence motion.


There is no ambiguity in the legality of current provisions related to these issues. Any change would require legislative action. There is, however, need for public debate on the working of the anti-defection law.


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The Anti-defection provides for the disqualification of the members of Parliament and state legislatures on the ground of defection from one political party to another. It was enacted to reduce 'Horse-trading' which was eating into the credibility of elected representatives and was increasing the role of money in Indian politics. Though enacted with good intentions, it has been argued that rationalising the law is necessary for improving Parliament's efficiency due to the following reasons:
-Does not differentiate between 'dissent' and 'defection' and curbs legislator's right to dissent and freedom of conscience.
-It's distinction between individual defection and group defection is irrational.
-Does not provide for expulsion of legislators from his party for his activities outside the the legislature.
-Discrimination between an independent member and a nominated member is illogical. If the former joins a party, he is disqualified while the later is allowed to do the same.
-Vesting of decision-making authority in presiding officer is criticised since the officer lacks legal knowledge and experience and may not exercise this authority in an impartial and objective manner due to political exigencies.
Hence, we can conclude that although the law has proved effective in curbing defections, it's further refinement will be in favour of improving Parliament's efficiency.

Article 356

The NDA government has asked for President’s rule in Arunachal and President Pranab Mukherjee has sought clarifications from the central government on the need to invoke Article 356 of the Constitution in this instance.
BACKGROUND
Article 356 is inspired by sections 93 of the Government of India Act, 1935, which provided that if a Governor of a province was satisfied that a situation had arisen in which the government of the province cannot be carried on in accordance with the provisions of the said Act, he could assume to himself all or any of the powers of the government and discharge those functions in his discretion. The Governor, however, could not encroach upon the powers of the high court. This background has imbued this article with a whiff of a ‘controlled democracy’, which is what the British would have intended then.
As the idea that India is a federation of states gained currency, regional and Left parties articulated why federalism was important and the Opposition would protest almost every time Article 356 was imposed.
The Sarkaria Commission notes that while in the first few years after the Constitution, it was invoked only thrice; between 1975 and ‘79, it was invoked 21 times; and between 1980 and ‘87, 18 times.
In 1989, after the Centre dismissed the SR Bommai government in Karnataka, SC had said the validity of a proclamation for President’s rule can be subjected to judicial review.
KEY TAKEAWAY
The Article has almost always been used to dismiss state governments where the party in power is not the same as that ruling at the Centre. So Jawaharlal Nehru found it easy to dismiss the EMS Namboodiripad government in Kerala in 1959, but AB Vajpayee could never bring his government to dismiss BJP’s Narendra Modi government in Gujarat in 2002.
However, a rare exception would be the imposition of President’s Rule in Punjab for over a year by the Indira Gandhi government in 1983. The then Punjab Chief Minister Darbara Singh was battling militancy in 1983.
Recent cases of Article 356
President’s Rule was in force in Delhi with the Assembly in suspended animation from February 14, 2014, to February 11, 2015. This was after Arvind Kejriwal resigned as CM after his move to introduce the Jan Lokpal Bill fell through in the Assembly
Imposed in Maharashtra from September 28, 2014, to October 31, 2014, after Prithviraj Chavan resigned following the break-up of the 15-year-old Congress-NCP alliance in the state.
In Andhra Pradesh from February 28, 2014, to June 8, 2014, due to a political crisis caused by the resignation of CM N Kiran Kumar Reddy and other Congress legislators on February 19, protesting against the Andhra Pradesh Reorganisation Bill that bifurcated the state and created a separate state of Telangana.
In Jharkhand from January 18, 2013, to July 12, 2013, as the Arjun Munda-led BJP government was reduced to a minority after the Jharkhand Mukti Morcha withdrew support. Munda resigned and sought dissolution of the state Assembly.
- See more at: http://indianexpress.com/article/explained/article-356-use-misuse/#sthash.pejJzr0U.dpuf

Can the subaltern speak for himself?

The outrage in the wake of Rohith Vemula’s ‘social murder’ in the campus of the University of Hyderabad raises more questions about the identity and integrity of the institutions of higher learning in India.
Sadly, every attempt has also been made to divert the issue from the public domain by intermixing facts with fiction. Earlier, it was placed within a larger “national/anti-national” discourse. Then it was narrowed down to the issue of a “law and order” problem on the campus. To add to the list of such woes, Rohith’s identity has also been dragged to a stage when his mother had to emerge to defend and clarify facts.
‘Rohith’ is a reminder that ‘subalterns’ cannot speak the truth, either for themselves or for others. Neither can ‘others’ speak for subalterns. Dr. B.R. Ambedkar, who drafted the Indian Constitution, argued that “unlike a drop of water which loses its identity when it joins the ocean, man does not lose his being in the society in which he lives... Man is born not for the development of the society alone, but for the development of his self.” Are we blatantly denying this ‘self’ to many Rohiths? Why did Dr. Ambedkar talk about this ‘self’? Because he knew that this nation need not necessarily represent the ‘self’ of the subalterns collectively. ‘Great’ nationalists cannot comprehend the chemistry of this relationship between the “body and soul” about which Rohith had written in his letter. The power/knowledge discourse appears to hold no good any longer when subalterns cannot even have the right to die. Really, a fate worse than ‘death’!
The changing campus

Most campuses have, of late, become melting pots of anxieties/tensions and feelings of deprivation, marginalisation and alienation. Nobody asks why this happens so often now. Has it got something to do with a ‘new division of labour’ in institutions of higher learning? From the point of view of shrinking social spaces, both academic and sociological, on campuses, consequent upon a ‘new class culture’ being superimposed on the stakeholders of higher education. Obviously, the subalterns are the worst victims of this ‘new class culture’ due to the long-term consequences of social stratification prevailing. More than that, the supposed beneficiaries of the ‘new education’ are the most volatile ones, due to the multiplied uncertainties of the future, the accumulated debts emerging from educational expenses, the rolling back of educational subsidies, cutting down of the number of fellowships/scholarships (limiting itself to a new class of beneficiaries), the lack of burden-sharing social spaces, the decline (and degeneration) of mainstream political forces on campuses, and an increasing acceptance of a highly individualised social Darwinian mindset.
Added to this list are emerging anxieties with regard to the role and responsibilities as well as the institutional-management culture of the present-day educational realm. The commodified notion of education creates nothing but an ‘individualised social Darwinian mindset’. This is not peculiar to campuses alone, which represent only a spectrum of our social space. Whatever happens in this larger social space, from family to the communities, from social organisations to the state, will have its inevitable impact on these thinking and acting beings on campuses. Our children are surely more volatile, more uncertain, more inhibited than they were about two decades back. They may be more skilled, more knowledgeable, more sophisticated and more active today. Yet, their skills, knowledge, sophistication and activity hide the absence of a larger social world in their mind and hearts.
Frustration with institutional and social decay induces new psychological choices, perhaps tragic ones too. This will lead to what Émile Durkheim calls some sort of self-demoralisation: “Man cannot become attached to higher aims and submit to a rule if he sees nothing above him to which he belongs. To free him from all social pressure is to abandon him to himself and demoralise him.” This may or may not create social atmospheric pressure for societies to stabilise themselves, if not for transforming them, but Rohith will remain a symbol of this ‘transformative stage’ because of his ‘politics of representation’. The extra-statutory death penalty which he decided for himself is actually for the entire set of social engineers of our time. Rohith already knew that there were so many skeletons in the social cupboard that not many on and off the campus would be willing to unload them for a real-time change.
Omissions of inquiry

Now that the Union government has announced a judicial inquiry, everyone is expecting the agitating students to go back to the classroom. The victims are, in fact, the first to know that these are political exercises in social futility. The history of judicial commissions shows that they are generally confessions of the failure of the existing political apparatus in dealing with extraordinary situations. Many such reports continue to gather dust on government shelves. However, they tend to serve one major purpose, that is, to provide the state with a convenient escape route to release the accumulated tensions in the system. Victims are to believe that justice will eventfully prevail. This notion of ‘prevalence’ is a continuing saga in the statute culture of the civilised world. Subalterns will never accept the premise that this farcical exercise will help emancipate them. Rather, they will continue to believe that every inquiry is an attempt to legitimise a fait accompli loaded against the victims. In Rohith’s case, facts are too well known. The culprits are among us. But who will bell the big cats?
(K.M. Seethi is Professor and Director, School of International Relations and Politics, Mahatma Gandhi University, Kerala.)
http://www.thehindu.com/opinion/op-ed/on-integrity-of-higher-education-institutions-in-india/article8155006.ece

social transformation that took place during Gupta period

The social transformation that took place during Gupta period included:
1. endogamy (that is marrying within one’s caste) started
2. Hardening of caste system and enforcement of social strictures against marriage between castes, as enshrined in the Dharmasastra
3. revival of sanskrit
4. christianity had arrived but confined in the malabar area
5. sacrifice replaced by worship and meditation was somewhat replaced by devotion and bhakti
6. shakti cult emerged, worship of mother goddess started, tantrism became prevalent
7. Subordination of women citing religious scriptural authority started
The effects of these transformation are seen even today in the form of:
1. Genetic history of indian's which shows caste-mixing declined since gGupta period
2. Intra-caste marriage is still the norm within practicing hindus 
3. Women still face restrictions and discrimination sanctioned by hindu scriptures
4. Shakti cult/worship of female deities in hinduism continues
5. christianity is still a minority religion
6. strict caste-system still plagues the indian society.

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