The prolonged political crisis in Karnataka has demonstrated the ways in which the nearly 35-year-old anti-defection law can be used and abused. Here’s how the law was enacted, and how it has performed.
The political crisis that began in Karnataka with the resignation of 15 MLAs on July 6, and ended on Tuesday with H D Kumaraswamy being defeated in a motion of confidence that took five days and multiple missed deadlines to be put to vote, underscored the tortuous working of India’s anti-defection law — and threw up a range of associated legal and constitutional questions. This is how the law — the Tenth Schedule of the Constitution, inserted by The Constitution (52nd Amendment) Act, 1985, when Rajiv Gandhi’s government was in power — came to be, and how it evolved over the three decades that followed.
The 1967 elections The legislative journey of the anti-defection law is long and chequered. It involves the institution of Parliament that designed it, the office of the Speaker of Legislatures that implements it, and the judiciary that interprets the law. MPs, MLAs, and their political parties are the principal stakeholders who are impacted by the anti-defection law. It is a law whose unintended consequences outweigh its purpose — and its journey after its passage in 1985 mirrors the continuing political instability in the country.
The seeds of the anti-defection law were sown after the general elections in 1967. The results of those elections were a mixed bag for the Congress. It formed the government at the Centre, but its strength in Lok Sabha fell from 361 to 283. During the year it lost control of seven state governments as MLAs shifted their political allegiance.
In this backdrop, P Venkatasubbaiah, a Congress MP in Lok Sabha who served in the Cabinets of both Indira and Rajiv Gandhi, proposed the setting up of a high-level committee to make recommendations to tackle the “problem of legislators changing their allegiance from one party to another”. The proposal saw a spirited debate in Lok Sabha. Opposition members suggested renaming the proposal to “save Congress”, while the ruling party accused the opposition of inducing MLAs to defect.
The Y B Chavan panel Despite the acrimony, the Lok Sabha agreed to the setting up of a committee to examine the problem of political defections. The then Home Minister, Y B Chavan, headed the committee. The panel defined defection — and an exception for genuine defectors. According to the committee, defection was the voluntary giving up of allegiance of a political party on whose symbol a legislator was elected, except when such action was the result of the decision of the party.
In its report, the committee noted “that the lure of office played a dominant part in decisions of legislators to defect”. It pointed out that out of 210 defecting legislators in seven states, 116 were given ministerial berths in governments which they helped form by their defections.
To combat this, the committee recommended a bar on defecting legislators from holding ministerial positions for a year — or until the time they got themselves re-elected. It also suggested a smaller Council of Ministers both at the levels of the Centre and the states. The committee was in favour of political parties working together to help evolve a code of conduct to effectively tackle disruptions.
Early attempts at a law Following the report of the Y B Chavan committee, two separate legislative attempts, both unsuccessful, were made to find a solution to defections. The first one was made by Indira’s Home Minister Uma Shankar Dikshit in 1973; the second, in 1978, by Shanti Bhushan, Minister for Law and Justice in the Janata Party government of Morarji Desai.
The third attempt — which was successful — was made in 1985, after the Congress won more than 400 seats in Lok Sabha in the aftermath of Indira’s assassination.
The Tenth Schedule The Bill to amend the Constitution was introduced by Rajiv Gandhi’s Law Minister Ashoke Kumar Sen, the veteran barrister and politician who had also served in the Cabinet of Jawaharlal Nehru. The statement of objects and reasons of the Bill said: “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.”
The amendment by which the Tenth Schedule was inserted in the Constitution, did three broad things. * One, it made legislators liable to be penalised for their conduct both inside (voting against the whip of the party) and outside (making speeches, etc.) the legislature — the penalty being the loss of their seats in Parliament or the state legislatures.
* Two, it protected legislators from disqualification in cases where there was a split (with 1/3rd of members splitting) or merger (with 2/3rds of members merging) of a legislature party with another political party. * Three, it made the Presiding Officer of the concerned legislature the sole arbiter of defection proceedings.
Criticism and passage During the debate in Parliament, Opposition MPs argued that the Bill would curtail the freedom of speech and expression of legislators. MPs like the socialist leader Madhu Dandavate expressed concern over the impact the amendment could have on the office of the Speaker.
The Law Minister, however, succeeded in navigating the Bill through Parliament in two days. The Bill was debated in Lok Sabha on January 30, the death anniversary of Mahatma Gandhi, and was passed by Rajya Sabha the following day. Prime Minister Rajiv Gandhi referred in Parliament to the Mahatma’s seven social sins, the first one being politics without principles.
The immediate challenges No sooner was the law put in place than political parties started to stress-test its boundaries. The issue of what constitutes a spilt in a political party rocked both the V P Singh and the Chandra Shekhar governments. The role of the Presiding Officers also became increasingly politicised. Lok Sabha Speaker Shivraj Patil said in 1992: “The Speaker is not expected to dabble in keeping the political parties week or strong or discipline the Parliamentarians for their party purposes.”
The intervention of the higher judiciary was sought to decide questions such as what kinds of conduct outside the legislature would fall in the category of defection, and what was the extent of the Speaker’s power in deciding defections. The Supreme Court, while upholding the supremacy of the Speaker in defection proceedings, also held that the Speaker’s decisions were subject to judicial review.
The 2003 Amendment The last step in the legislative journey of the anti-defection law came in 2003. A Constitution Amendment Bill was introduced in Parliament by the government of Prime Minister Atal Bihari Vajpayee to address some of the issues with the law. A committee headed by Pranab Mukherjee examined the Bill.
The committee observed: “The provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further it is also observed that the lure of office of profit plays dominant part in the political horse-trading resulting in spate of defections and counter defections.”
The one-third split provision which offered protection to defectors was deleted from the law on the committee’s recommendation. The 2003 Amendment also incorporated the 1967 advice of the Y B Chavan committee in limiting the size of the Council of Ministers, and preventing defecting legislators from joining the Council of Ministers until their re-election. However, as events in the years and decades since have demonstrated, these amendments have had only limited impact.
The (ab)use of the law The removal of the split provision prompted political parties to engineer wholesale defections (to merge) instead of smaller ‘retail’ ones. Legislators started resigning from the membership of the House in order to escape disqualification from ministerial berths.
The ceiling on the size of the Council of Ministers meant an increase in the number of positions of parliamentary secretaries in states. The Speakers started taking an active interest in political matters, helping build and break governments. The anti-defection law does not specify a timeframe for Speakers to decide on defection proceedings. When the politics demanded, Speakers were either quick to pass judgment on defection proceedings or delayed acting on them for years on end.
The long drawn-out events in the Karnataka Vidhan Sabha have shown that even after three decades, the anti-defection law has not been able to stop political defections. (Chakshu Roy is Head of Outreach at PRS Legislative Research)
Key features of the Bill: The Bill amends the Unlawful Activities (Prevention) Act, 1967. Who may commit terrorism: Under the Act, the central government may designate an organisation as a terrorist organisation if it: (i) commits or participates in acts of terrorism, (ii) prepares for terrorism, (iii) promotes terrorism, or (iv) is otherwise involved in terrorism. The Bill additionally empowers the government to designate individuals as terrorists on the same grounds.
Approval for seizure of property by NIA: If the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director General of NIA would be required for seizure of properties that may be connected with terrorism.
Investigation by NIA: Under the Act, investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. The Bill additionally empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases.
Insertion to schedule of treaties: The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act. The Schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979). The Bill adds another treaty to the list. This is the International Convention for Suppression of Acts of Nuclear Terrorism (2005).
Background: The UAPA – an upgrade on the Terrorist and Disruptive Activities (Prevention) Act TADA, which was allowed to lapse in 1995 and the Prevention of Terrorism Act (POTA) was repealed in 2004 — was originally passed in 1967 under the then Congress government led by former Prime Minister Indira Gandhi. Eventually amendments were brought in under the successive United Progressive Alliance (UPA) governments in 2004, 2008 and 2013.
PRASAD Scheme: Introduced in 2015, the Pilgrimage Rejuvenation and Spiritual Augmentation Drive (PRASAD) is a government scheme that focuses on identifying and developing the pilgrim sites across the country to enrich the religious tourism experience.
It was launched by Union Ministry of Tourism. It aims at integrated development of pilgrimage destinations in planned, prioritised and sustainable manner to provide complete religious tourism experience.
Objectives: Harness pilgrimage tourism for its direct and multiplier effect upon employment generation and economic development. Enhance tourist attractiveness in sustainable manner by developing world class infrastructure in the religious destinations. It also seeks to promote local art, culture, handicraft, cuisine, etc.
Funding: Under it, Ministry of Tourism provides Central Financial Assistance (CFA) to State Governments for promoting tourism at identified destinations. For components within public funding under this scheme, Central Government will provide 100% fund. For improved sustainability of project, it also seeks to involve Public Private Partnership (PPP) and Corporate Social Responsibility (CSR) as well.
About Deen Dayal Upadhyaya Grameen Kaushalya Yojana or DDU-GKY: The Vision of DDU-GKY is to “Transform rural poor youth into an economically independent and globally relevant workforce”.
It aims to target youth, in the age group of 15–35 years. DDU-GKY is a part of the National Rural Livelihood Mission (NRLM), tasked with the dual objectives of adding diversity to the incomes of rural poor families and cater to the career aspirations of rural youth.
Objectives: Enable Poor and Marginalized to Access Benefits. Mandatory coverage of socially disadvantaged groups (SC/ST 50%; Minority 15%; Women 33%). Shifting Emphasis from Training to Career Progression. Post-placement support, migration support and alumni network. Proactive Approach to Build Placement Partnerships.
Guaranteed Placement for at least 75% trained candidates. Enhancing the Capacity of Implementation Partners Nurturing new training service providers and developing their skills. Greater emphasis on projects for poor rural youth in Jammu and Kashmir (HIMAYAT).
The bill will amalgamate the Payment of Wages Act, 1936, the Minimum Wages Act, 1948, the Payment of Bonus Act, 1965, and the Equal Remuneration Act, 1976.
Key highlights: Coverage: The Code will apply to all employees. The central government will make wage-related decisions for employments such as railways, mines, and oil fields, among others. State governments will make decisions for all other employments. Wages include salary, allowance, or any other component expressed in monetary terms. This does not include bonus payable to employees or any travelling allowance, among others.
Floor wage: According to the Code, the central government will fix a floor wage, taking into account living standards of workers. Further, it may set different floor wages for different geographical areas. Before fixing the floor wage, the central government may obtain the advice of the Central Advisory Board and may consult with state governments. The minimum wages decided by the central or state governments must be higher than the floor wage. In case the existing minimum wages fixed by the central or state governments are higher than the floor wage, they cannot reduce the minimum wages.
Fixing the minimum wage: The Code prohibits employers from paying wages less than the minimum wages. Minimum wages will be notified by the central or state governments. This will be based on time, or number of pieces produced. The minimum wages will be revised and reviewed by the central or state governments at an interval of not more than five years. While fixing minimum wages, the central or state governments may take into account factors such as: (i) skill of workers, and (ii) difficulty of work.
Overtime: The central or state government may fix the number of hours that constitute a normal working day. In case employees work in excess of a normal working day, they will be entitled to overtime wage, which must be at least twice the normal rate of wages.
Payment of wages: Wages will be paid in (i) coins, (ii) currency notes, (iii) by cheque, (iv) by crediting to the bank account, or (v) through electronic mode. The wage period will be fixed by the employer as either: (i) daily, (ii) weekly, (iii) fortnightly, or (iv) monthly.
Deductions: Under the Code, an employee’s wages may be deducted on certain grounds including: (i) fines, (ii) absence from duty, (iii) accommodation given by the employer, or (iv) recovery of advances given to the employee, among others. These deductions should not exceed 50% of the employee’s total wage.
Determination of bonus: All employees whose wages do not exceed a specific monthly amount, notified by the central or state government, will be entitled to an annual bonus. The bonus will be at least: (i) 8.33% of his wages, or (ii) Rs 100, whichever is higher. In addition, the employer will distribute a part of the gross profits amongst the employees. This will be distributed in proportion to the annual wages of an employee. An employee can receive a maximum bonus of 20% of his annual wages.
Gender discrimination: The Code prohibits gender discrimination in matters related to wages and recruitment of employees for the same work or work of similar nature. Work of similar nature is defined as work for which the skill, effort, experience, and responsibility required are the same.
Advisory boards: The central and state governments will constitute advisory boards. The Central Advisory Board will consist of: (i) employers, (ii) employees (in equal number as employers), (iii) independent persons, and (iv) five representatives of state governments. State Advisory Boards will consist of employers, employees, and independent persons. Further, one-third of the total members on both the central and state Boards will be women. The Boards will advise the respective governments on various issues including: (i) fixation of minimum wages, and (ii) increasing employment opportunities for women.
Significance: This is expected to effectively reduce the number of minimum wage rates across the country to 300 from about 2,500 minimum wage rates at present.
Key Issues and Analysis: Central government may set a national minimum wage. Further, it may set separate national minimum wages for different states or regions. In this context, two questions arise: (i) the rationale for a national minimum wage, and (ii) whether the central government should set one or multiple national minimum wages.
States have to ensure that minimum wages set by them are not lower than the national minimum wage. If existing minimum wages set by states are higher than the national minimum wage, they cannot reduce the minimum wages. This may affect the ability of states to reduce their minimum wages if the national minimum wage is lowered.
The time period for revising minimum wages will be set at five years. Currently, state governments have flexibility in revising minimum wages, as long as it is not more than five years. It is unclear why this flexibility has been removed, and five years has been set for revision. The Equal Remuneration Act, 1976, prohibits employers from discriminating in wage payments as well as recruitment of employees based on gender. While the Code prohibits gender discrimination on wage-related matters, it does not include provisions regarding discrimination during recruitment.
Need for a national minimum wage: One argument for a national minimum wage is to ensure a uniform standard of living across the country. At present, there are differences in minimum wages across states and regions. Such differences are attributed to the fact that both the central and state governments set, revise and enforce minimum wages for the employments covered by them. The introduction of a national minimum wage may help reduce these differences and provide a basic standard of living for all employees across the country.
About PMBJP: ‘Pradhan Mantri Bhartiya Janaushadhi Pariyojana’ is a campaign launched by the Department of Pharmaceuticals, Govt. Of India, to provide quality medicines at affordable prices to the masses through special kendra’s known as Pradhan Mantri Bhartiya Jan Aushadhi Kendra.
Pradhan Mantri Bhartiya Jan Aushadhi Kendra (PMBJK) have been set up to provide generic drugs, which are available at lesser prices but are equivalent in quality and efficacy as expensive branded drugs. Bureau of Pharma PSUs of India (BPPI) is the implementing agency of PMBJP. BPPI (Bureau of Pharma Public Sector Undertakings of India) has been established under the Department of Pharmaceuticals, Govt. of India, with the support of all the CPSUs.
SALIENT FEATURES OF THE SCHEME: Ensure access to quality medicines. Extend coverage of quality generic medicines so as to reduce the out of pocket expenditure on medicines and thereby redefine the unit cost of treatment per person.
Create awareness about generic medicines through education and publicity so that quality is not synonymous with only high price. A public programme involving Government, PSUs, Private Sector, NGO, Societies, Co-operative Bodies and other Institutions. Create demand for generic medicines by improving access to better healthcare through low treatment cost and easy availability wherever needed in all therapeutic categories.
What is a generic medicine? There is no definition of generic or branded medicines under the Drugs & Cosmetics Act, 1940 and Rules, 1945 made thereunder. However, generic medicines are generally those which contain same amount of same active ingredient(s) in same dosage form and are intended to be administered by the same route of administration as that of branded medicine.
The price of an unbranded generic version of a medicine is generally lower than the price of a corresponding branded medicine because in case of generic version, the pharmaceutical company does not have to spend money on promotion of its brand.
How are they regulated in India? Drugs manufactured in the country, irrespective of whether they are generic or branded, are required to comply with the same standards as prescribed in the Drugs and Cosmetics Act, 1940 and Rules, 1945 made thereunder for their quality.
What exactly are sovereign bonds? A bond is like an IOU. The issuer of a bond promises to pay back a fixed amount of money every year until the expiry of the term, at which point the issuer returns the principal amount to the buyer. When a government issues such a bond it is called a sovereign bond.
Why is India borrowing in external markets in external currency? Indian government’s domestic borrowing is crowding out private investment and preventing the interest rates from falling even when inflation has cooled off and the RBI is cutting policy rates.
If the government was to borrow some of its loans from outside India, there will be investable money left for private companies to borrow; not to mention that interest rates could start coming down. A sovereign bond issue will provide a yield curve — a benchmark — for Indian corporates who wish to raise loans in foreign markets. This will help Indian businesses that have increasingly looked towards foreign economies to borrow money.
Globally, and especially in the advanced economies where the government is likely to go to borrow, the interest rates are low and, thanks to the easy monetary policies of foreign central banks, there are a lot of surplus funds waiting for a product that pays more. In an ideal scenario, it could be win-win for all: Indian government raises loans at interest rates much cheaper than domestic interest rates, while foreign investors get a much higher return than is available in their own markets.
What is the controversial part? The current controversy relates to India’s sovereign bonds that will be floated in foreign countries and will be denominated in foreign currencies. This would differentiate these proposed bonds from either government securities (or G-secs, wherein the Indian government raises loans within India and in Indian rupee) or Masala bonds (wherein Indian entities — not the government — raise money overseas in rupee terms).
The difference between issuing a bond denominated in rupees and issuing it in a foreign currency (say US dollar) is the incidence of exchange rate risk. If the loan is in terms of dollars, and the rupee weakens against the dollar during the bond’s tenure, the government would have to return more rupees to pay back the same amount of dollars. If, however, the initial loan is denominated in rupee terms, then the negative fallout would be on the foreign investor.
Why are so many cautioning against this move? The volatility in India’s exchange rate is far more than the volatility in the yields of India’s G-secs (the yields are the interest rate that the government pays when it borrows domestically). This means that although the government would be borrowing at “cheaper” rates than domestically, the eventual rates (after incorporating the possible weakening of rupee against the dollar) might make the deal costlier.
Borrowing outside would not necessarily reduce the number of government bonds the domestic market will have to absorb. That’s because if fresh foreign currency comes into the economy, the RBI would have to “neutralise” it by sucking the exact amount out of the money supply. This, in turn, will require selling more bonds. If the RBI doesn’t do it then the excess money supply will create inflation and push up the interest rates, thus disincentivising private investments.
Based on the unpleasant experience of other emerging economies, many argue that a small initial borrowing is the thin end of the wedge. It is quite likely that the government will be tempted to dip into the foreign markets for more loans every time it runs out of money. At some point, especially if India does not take care of its fiscal health, the foreign investors will pull the plug on fresh investments, creating dire consequences for India.
What is lightning, and how does it strike? It is a very rapid — and massive — discharge of electricity in the atmosphere, some of which is directed towards the Earth’s surface. These discharges are generated in giant moisture-bearing clouds that are 10-12 km tall.
How does it strike? The base of these clouds typically lies within 1-2 km of the Earth’s surface, while their top is 12-13 km away. Temperatures towards the top of these clouds are in the range of minus 35 to minus 45 degrees Celsius. As water vapour moves upward in the cloud, the falling temperature causes it to condense. Heat is generated in the process, which pushes the molecules of water further up.
As they move to temperatures below zero degrees celsius, the water droplets change into small ice crystals. They continue to move up, gathering mass — until they are so heavy that they start to fall to Earth. This leads to a system in which, simultaneously, smaller ice crystals are moving up and bigger crystals are coming down.
Collisions follow, and trigger the release of electrons — a process that is very similar to the generation of sparks of electricity. As the moving free electrons cause more collisions and more electrons, a chain reaction ensues.
This process results in a situation in which the top layer of the cloud gets positively charged, while the middle layer is negatively charged. The electrical potential difference between the two layers is huge — of the order of a billion to 10 billion volts. In very little time, a massive current, of the order of 100,000 to a million amperes, starts to flow between the layers.
An enormous amount of heat is produced, and this leads to the heating of the air column between the two layers of the cloud. This heat gives the air column a reddish appearance during lightning. As the heated air column expands, it produces shock waves that result in thunder.
How does this current reach the Earth from the cloud? While the Earth is a good conductor of electricity, it is electrically neutral. However, in comparison to the middle layer of the cloud, it becomes positively charged. As a result, about 15%-20% of the current gets directed towards the Earth as well. It is this flow of current that results in damage to life and property on Earth.
There is a greater probability of lightning striking tall objects such as trees, towers or buildings. Once it is about 80-100 m from the surface, lightning tends to change course towards these taller objects. This happens because air is a poor conductor of electricity, and electrons that are travelling through air seek both a better conductor and the shortest route to the relatively positively charged Earth’s surface.
Key features: Under the scheme all small shopkeepers, retail traders and self-employed persons are assured a minimum of Rs.3,000 monthly pension after attaining 60 years of age.
Eligibility: All small shopkeepers, self-employed persons and retail traders aged between 18-40 years and with Goods and Service Tax (GST) turnover below Rs.1.5 crore can enrol for pension scheme. To be eligible, the applicants should not be covered under the National Pension Scheme, Employees’ State Insurance Scheme and the Employees’ Provident Fund or be an Income Tax assessee.
The scheme is based on self-declarationas no documents are required except bank account and Aadhaar Card. The Central Government will make matching contribution(same amount as subscriber contribution) i.e. equal amount as subsidy into subscriber’s pension account every month.
Context: Cabinet has approved to dissolve National Institute of Miners’ Health (NIMH) and merge / amalgamate with ICMR-National Institute of Occupational Health (NIOH), Ahmedabad, Ministry of Health & Family Welfare (MoH&FW). NIMH, ICMR, NIOH, MoM and Impact: The merger / amalgamation of NIMH with NIOH will prove beneficial to both the Institutes in term of enhanced expertise in the field of occupational health besides the efficient management of public money.
Background: NIMH was set up by Government of India in 1990 and registered as a Society under the Karnataka Societies Registration Act, 1960. It is an autonomous Institute under Ministry of Mines (MoM).
Colistin banned in animal food industry: Context: Manufacture, sale and distribution of colistin and its formulations for food-producing animals, poultry, aqua farming and animal feed supplements have been prohibited in an order issued by Ministry of Health and Family Welfare.
What is colistin and why has it been banned? Colistin is a valuable, last-resort antibiotic that saves human lives in critical care units.
Indiscriminate use of colistin has led to rise of anti-microbial resistance in the country. If the use of colistin as a growth factor in animals is cut down and it is limited to therapeutic usage only, the chances of developing resistance to it goes down.
American pocket shark, or Mollisquama mississippiensis: What is it? It is a new species of pocket-sized pocket shark found recently in the Gulf of Mexico. It is only the third out of more than 500 known shark species that may squirt luminous liquid.
Dracaena cambodiana: Context: A group of researchers has discovered Dracaena cambodiana, a dragon tree species in the Dongka Sarpo area of West Karbi Anglong, Assam.
Thisis for the first time that a dragon tree species has been reported from India. The Dracaena seeds are usually dispersed by birds. But due to the large fruit size, only a few species of birds are able to swallow the fruits, thus limiting the scope of its natural conservation.
Dracaena cambodiana is an important medicinal plant as well as an ornamental tree. It is a major source of dragon’s blood, a precious traditional medicine in China.