Anti Defection Law

Context

India’s first Member of Parliament to have been disqualified from the Lok Sabha has now been disqualified as an MLA in Mizoram. Mizoram Assembly Speaker disqualifies Zoram People’s Movement MLA Lalduhoma.

Ground for disqualification:

The disqualification was on the ground that Mr. Lalduhoma had declared himself as a representative of the Zoram People’s Movement (ZPM) despite being elected as an independent candidate from the Serchhip Assembly constituency.

He lost the character of an independent legislator because of the declaration.

What is the anti-defection law?

The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act.

It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. The law applies to both Parliament and state assemblies.

When can a member be disqualified?

• If a member of a house belonging to a political party: Voluntarily gives up the membership of his political party, or Votes, or does not vote in the legislature, contrary to the directions of his political party.
• However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
• If an independent candidate joins a political party after the election.
• If a nominated member joins a party six months after he becomes a member of the legislature.

However, Legislators may change their party without the risk of disqualification in certain circumstances:

• The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
• In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

Decision of the Presiding Officer is subject to judicial review:

The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.

However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.

Various Recommendations to overcome the challenges posed by the law:

Dinesh Goswami Committee on electoral reforms:

Disqualification should be limited to following cases:

• A member voluntarily gives up the membership of his political party.
• A member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence. Political parties could issue whips only when the government was in danger.

Law Commission (170th Report):

• Provisions which exempt splits and mergers from disqualification to be deleted.
• Pre-poll electoral fronts should be treated as political parties under anti-defection
• Political parties should limit issuance of whips to instances only when the government is in danger.

Election Commission:

Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.

PM on One Nation, One Election

Recently, the Prime Minister of India has addressed the concluding session of the 80th All India Presiding Officers Conference via videoconference, at Kevadiya (Gujarat) on the occasion of Constitution Day (26th November).

All India Presiding Officers Conference

• It began in 1921, and the Gujarat event marks its centenary year.
• Theme for 2020: ‘Harmonious Coordination between Legislature, Executive and Judiciary: Key to a Vibrant Democracy’.
• It emphasises on the need for coordination between all three wings of the state, viz. Legislature, Executive and Judiciary and suggests them to be guided by the Constitution which mentions their role to their decorum.

In the meeting, PM raised the pitch for ‘One Nation, One Election’, a single voter list for all polls and also asked the presiding officers to simplify the language of statute books and allow for an easier process to weed out redundant laws.

One Nation, One Election:

The idea is about structuring the Indian election cycle in a manner so that elections to the Lok Sabha and the State Assemblies are synchronised together so that the election to both can be held within a given span of time.

Advantages:

• Help keep a check on the poll expenses, party expenses, etc. and also save public money.
• Reduce the burden on administrative setup and security forces. Ensure timely implementation of the government policies and also ensure that the administrative machinery is engaged in developmental activities rather than electioneering.
• Solve the problem of governance on the part of the politicians who are ruling. It is generally seen that for short term political gains from a particular assembly election, ruling politicians avoid taking a harsh long term decision which can ultimately help the country in the long run.
• Provide more time to all the stakeholders i.e. political parties, Election Commission of India (ECI), paramilitary forces, civilians for the preparation of elections once in five years.

Challenges:

• The synchronisation is a major problem considering the traditions and conventions that India’s Parliamentary system follows. The government is accountable to the Lower House and it is possible that the government can fall before completing its term and the moment the government falls, there has to be an election.
• It is difficult to convince and bring together all the political parties on the idea.
• For holding simultaneous elections, the requirements for Electronic Voting Machines (EVMs) and the Voter Verified Paper Audit Trails (VVPATs) will double as the ECI has to provide two sets (one for election to the Legislative Assembly and second for that to the Lok Sabha).
• There will also be an additional requirement of the polling staff and for better security arrangements.

Suggestions:

• India held the elections for the assembly as well as the Lok Sabha from 1951-52 to till 1967. As such, therefore, there are no disagreements on adequacy and efficacy of the idea. India can even think of holding elections at the same time even for the local bodies.
• To sync the term of the State Legislative Assemblies with that of the Lok Sabha, the term of the state legislative assemblies can be reduced and increased accordingly. However, to do so, constitutional amendments may be needed in Articles 83, 85, 172, 174 and 356.
• In India, fixing the dates is not feasible because of the Parliamentary form of government so one radical solution is to switch to the Presidential form of Government where the President is not accountable to the House.
• Synchronising only the elections to the Lok Sabha and the Rajya Sabha.

Comparison between President’s Powers to Pardon in USA vs India

Context:

• Recently, the President of the United States of America (USA) exercised his powers under the constitution to pardon his former National Security Advisor.
• Unlike the USA President, whose powers to grant pardons are almost unrestrained, the President of India has to act on the advice of the Cabinet.

Comparison between USA vs India

Pardoning Power of the President in the USA:

• The President of the USA has the constitutional right to pardon or commute sentences related to federal crimes.
• Clemency is a broad executive power, and is discretionary which means the President is not answerable for his pardons and does not have to provide a reason for issuing one. But there are a few limitations.
• The USA has a Presidential system.
• The USA Supreme Court has held that this power is granted without limit and cannot be restricted by Congress (legislature).

Limitations:

• All Presidents shall have the power to grant Reprieves and Pardons for offences against the United States, except in cases of impeachment.
• Further, the power only applies to federal crimes and not state crimes.
• Those pardoned by the President can still be tried under the laws of individual states.

Pardoning Power of the President in India:

Under Article 72 (PT) of the Constitution, 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 offence where the sentence is a sentence of death.

Limitation:

• The President cannot exercise his power of pardon independent of the government.
• In several cases, the Supreme Court (SC) has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas. These include Maru Ram vs Union of India in 1980 and Dhananjoy Chatterjee vs State of West Bengal in 1994.

Reconsideration:

Although the President is bound by the Cabinet’s advice, Article74 (1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.

Under Article 161, the Governor in India too has pardoning powers.

Difference Between Pardoning Powers of President and Governor:

The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161 which differs in the following two ways:

1. Court Martial: The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.
2. Death sentence: The President can grant pardon in all cases where the sentence given is the sentence of death but the pardoning power of the Governor does not extend to death sentence cases.

Terms for Prelims

Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.

Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.

Remission: It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.

Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.

Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.

HC has virtually taken over executive function: A.P Govt to SC

Andhra Pradesh government recently told the Supreme Court that Andhra Pradesh High Court has “virtually taken over the executive functions of the State”.

What’s the issue?

• State government says that the High Court had “seriously violated the doctrine of Separation of Powers”.
• Besides, in doing so, the High Court has completely ignored the warning that the Supreme Court has, time and again, sounded advising the courts to respect the other co-equal organs of the State and to refrain from assuming such powers to itself.

What has the Supreme Court said on the issue?

• A 2008 judgment of the Supreme Court said “in the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the State”.

What is Judicial Activism?

It refers to the court’s decision, based on the judges personal wisdom that do not go rigidly within the text of the statutory passed by the legislature and the use of judicial power broadly to provide remedies to the wide range of social wrongs for ensuring proper justice.

The Doctrine of separation of Power:

• The Constitution, under various provisions, has clearly drawn the line between the Legislature and the Judiciary to maintain their independence in their respective functioning.
• Articles 121 and 211 forbid the legislature from discussing the conduct of any judge in the discharge of his duties.
• Articles 122 and 212 prevent the courts from sitting in judgment over the internal proceedings of the legislature.
• Articles 105(2) and 194(2) protect the legislators from the interference of the Courts with regard to his/her freedom of speech and freedom to vote.

Benefits:

• Provides a system of checks and balances to the other government branches.
• Brings out required innovation in the form of a solution.
• Provides judges to use their personal wisdom in cases where the law failed to provide a balance.
• It shows the instilled trust placed in the justice system and its judgments.
• Checks misuse of public power.
• Provides speedy solutions where the legislature gets stuck in the issue of majority.

Disadvantages or concerns associated:

• Violates the line drawn by the constitution.
• Judicial opinions of the judges become standards for ruling other cases.
• Judgment may be influenced by personal or selfish motives.
• Repeated interference of courts can erode the faith of the people in the quality, integrity and efficiency of governmental institutions.
• Courts limit the functioning of government.
• The independence of the judiciary is jeopardised when courts become embroiled in the passions of the day (Observation made by the U.S. Supreme Court).

Way forward:

In Ram Jawaya v. The State of Punjab (1955), the court observed: “Our Constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another.” This implies that there should be a broad separation of powers in the Constitution among the three organs of the state (legislative, executive, and judiciary) and that one organ should not encroach into the domain of another. If this happens, the delicate balance in the Constitution will be upset and there will be chaos.

Reservation in Super-speciality Medical Courses: SC

Recently, the Supreme Court (SC) has reserved its order on the state governments providing a 50% in-service reservation for admissions to super-speciality medical courses (Doctorate of Medicine/DM and Master of Chirurgiae/M. Ch.) in government colleges for the academic year 2020-21.

Features

In August 2020, the SC allowed states to grant the benefit of reservation of seats to in-service doctors in the National Eligibility cum Entrance Test (NEET) postgraduate (PG) degree courses.

The judgment held that the state has the legislative competence and authority to provide for a separate source of entry for in-service candidates seeking admission to PG/diploma courses in the exercise of powers under Entry 25, List III.

• Entry 25 of List-III: Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.

In November 2020, the Tamil Nadu government allowed counselling and filling of 50% of the super-speciality seats in the government medical colleges with in-service candidates in the state.

• The seats would be filled with candidates who have cleared NEET-Super Speciality Courses (SS) and the selection committee of the Directorate of Medical Education would prepare the merit list and conduct counselling.
• The state government argued that there was an acute need for super-speciality qualified doctors both in the medical academia and in practice.
• After 50% of seats in DM/M. Ch. courses in government medical colleges are allocated to in-service candidates, the rest will be surrendered to the Directorate General of Health Services (DGHS).

• DGHS is a repository of technical knowledge concerning public health, medical education and health care. It is an attached organisation of the Ministry of Health and Family Welfare.
• Doctors, including PG holders qualified in NEET 2020, challenged the decision saying that there is no concept of any reservation for admission to super- speciality medical courses.

They referred to the verdict in Dr Preeti Srivastava & Anr. versus State of Madhya Pradesh & Ors, 1999 which held that “merit, and merit alone, is the basis for admission at the super-speciality level”.

• Their appeal argued that the State order was contrary to the Postgraduate Medical Education (Amendment) Regulations of 2019, which mandated that the DGHS should be in charge of the admission process.
• The regulations empower DGHS to conduct the counselling for all super- speciality courses in medical educational institutions of the Central and state governments, deemed universities, medical educational institutions established by municipal bodies, trusts, etc.