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)
Till date, 30 projects/ schemes have been appraised and recommended by the Empowered Committee of officers for funding under Nirbhaya Fund.
About Nirbhaya fund: The Rs 1,000 crore Nirbhaya Fund was announced in Union Budget 2013. The corpus was to be utilised for upholding safety and dignity of women. Ministry of Women and Child Development apart from several other concerned ministries were authorised to work out details of structure, scope and application of this fund. The Fund is administered by Department of Economic Affairs of the finance ministry.
Issues with Nirbhaya Fund: The government has been accused of keeping Nirbhaya Fund unutilised. With rise in cases of sexual harassment and crimes against women there is a crying need for implementation of such funds.
Way ahead: Government should improve coordination between the ministries for speedier implementation of projects under the schemes of this nature. Delay caused by lengthy inert-ministerial coordination must not be allowed to compromise women’s safety. The Government and legislators must act proactively on delivering equality and security to women.
About National Creche Scheme: The Scheme is being implemented by the Ministry of Women and Child Development. It is a centrally sponsored scheme.
It aims at providing a safe place for mothers to leave their children while they are at work, and thus, is a measure for empowering women as it enables them to take up employment. Coverage: It is an intervention towards protection and development of children in the age group of 6 months to 6 years.
Features: Provides for day care facilities to the children of working mothers. Provides supplementary nutrition, health care inputs like immunization, polio drops, basic health monitoring, sleeping facilities, early stimulation (for children below 3 years), pre-school education for children aged between 3-6 yrs.
Significance: This scheme facility enables the parents to leave their children while they are at work and where the children are provided with a stimulating environment for their holistic development. This scheme ensures to improve the health and nutrition status of the children. It promotes physical, social, cognitive and emotional/holistic development of the children.
It also educates and empowers parents/caretakers for the better childcare. The scheme is being structurally revised with the enhanced financial norms, stringent monitoring and sharing pattern between the Government of India and the implementing agencies and NGOs.
Eligibility Criteria: The State Government, Voluntary Institutions, Mahila Mandals with the know report of service in the field of child welfare department and registered under the Societies Registration Act, 1860 or registered as a Public Trust at least for the period for last 2 years are eligible for applying for the financial assistance from the fund.
Fund sharing: The fund sharing pattern under National Creche Scheme amongst Centre, States/UTs & Non Governmental Organisations/Voluntary Organisations for all recurring components of the scheme is in the ratio of 60:30:10 for States, 80:10:10 for North Eastern States and Himalayan States and 90:0:10 for UTs.
Why the Centre must invest more in the National Creche Scheme? The physical and cognitive development of a child begins in the womb, and 90% of it happens before she is three. It is in this time period that good nutrition is critical.
About Silk Samagra: It is initiated by the Central Silk Board. The scheme comprises four major components viz. (i) Research & Development, Training, Transfer of Technology and Information Technology Initiatives, (ii) Seed Organizations, (iii) Coordination and Market Development and (iv) Quality Certification Systems (QCS) / Export Brand Promotion and Technology Up-gradation.
The main objective of the scheme is to maintain Breeders stock, Breed improvement through R&D Projects, Development of mechanized practices, Technology translation through Sericulture Information Linkages and Knowledge System (SILKS) Portal, Mobile Application for Stakeholders and for seed quality monitoring etc.
The main aim of “Silk Samagra” Scheme is to empower downtrodden, poor & backward tribal families through various activities of sericulture in the country including women.
Sericulture in India: Sericulture is an agro-based cottage industry having huge employment and income generating potential in rural and semi-urban areas. It is estimated that sericulture industry provides employment to approximately 91.20 lakh persons (including 3.40 lakh persons in the State of Tamil Nadu) in rural and semi-urban areas in the country as of March-2019.
Of these, a sizeable number of workers belong to the economically weaker sections of society, including women. This is mainly due to implementation of Government schemes and efforts made by State/ Central Government.
Key facts: India is the 2nd largest producer of silk in the world after China. It is largest consumer of silk in the world. It is the only country in the world that produces all 5 varieties of silk on a commercial scale– Mulberry, Oak Tasar & Tropical Tasar, Muga and Eri. Holds the global monopoly for production of the famed golden ‘Muga’ silk.
The Government launched the Ambedkar Hastshilp Vikas Yojana (AHVY) in the year 2001-2002.
The scheme was launched with a view to mobilize the artisans into Self Help Groups and training the groups on various aspects of forming and running the community business enterprises for self sustainability of artisans.
The objective of this scheme is to: Mobilise and generate awareness of typical handicraft arts for their overall development and progress. Provide training to artisans and expose them to greater market to sell their handicraft products.
Provide proper education and market knowledge to artisans so that they learn the market techniques to get better results.
It was created in 2010 at the Saint Petersburg Tiger Summit. The goal of the day is to promote a global system for protecting the natural habitats of tigers and to raise public awareness and support for tiger conservation issues.
4th cycle of all India Tiger Estimation: On the eve Global Tiger Day, a census report of tigers in India-‘The Tiger Estimation Report 2018’- has been released.
Key findings: 2967 tigers are present in India. Highest number of tigers have found in Madhya Pradesh (526), after that Karnataka has 524 and Uttarakhand is accommodating 442 tigers. In five years, the number of protected areas increased from 692 to over 860, community reserves from 43 to over 100.
While the 2014 census pegged the total number of striped big cats in the country at 2,226, the 2010 census put the figure at 1,706 and the 2006 version at 1,411, indicating that tiger numbers have been on the up. While Pench Tiger Reserve in Madhya Pradesh recorded the highest number of tigers, Sathyamangalam Tiger Reserve in Tamil Nadu registered the “maximum improvement” since 2014.
Chhattisgarh and Mizoram saw a decline in their tiger numbers while tiger numbers in Odisha remained constant. All other states witnessed a positive trend.
Tiger protection in India- Concerns and challenges: India has one of the lowest per capita forest areas in the world. Depletion of forests is responsible for reduction of tiger habitats.
Reduced food base: As forestlands fall to development projects, habitable land for animals that make for the tiger’s food base are also reduced. Poaching: Another issue that has hindered tiger conservation in India and globally is poaching, which will persist as long as there is an illegal market for tiger body parts.
Climate change: Rising sea level as a result of climate change is on the verge of wiping out Sundarbans, one of the last remaining habitats of the Bengal tigers.
Conservation efforts: The National Tiger Conservation Authority (NTCA) has launched the M-STrIPES (Monitoring System for Tigers – Intensive Protection and Ecological Status), a mobile monitoring system for forest guards. At the Petersburg Tiger Summit in 2010, leaders of 13 tiger range countries resolved to do more for the tiger and embarked on efforts to double its number in the wild, with a popular slogan ‘T X 2’.
The Global Tiger Initiative (GTI) program of the World Bank, using its presence and convening ability, brought global partners together to strengthen the tiger agenda.
Over the years, the initiative has institutionalised itself as a separate entity in the form of the Global Tiger Initiative Council (GTIC), with its two arms –the Global Tiger Forum and the Global Snow Leopard Ecosystem Protection Program.
The Project Tiger, launched way back in 1973, has grown to more than 50 reserves amounting to almost 2.2% of the country’s geographical area.
What is Article 35A? Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.
The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.
How did it come about? Article 35A was incorporated into the Constitution in 1954 by an order of the then PresidentRajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.
So, Article 35A was added to the Constitution as a testimony of the special considerationthe Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.
Critical side of Article 35A: How Article 35A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”? It treats non-permanent residents of J&K as ‘second-class’ citizens. Non-permanent residents of J&K are not eligible for employment under the State government and are also debarred from contesting elections. Meritorious students are denied scholarshipsand they cannot even seek redress in any court of law.
Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution. It was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the Constitution. The laws enacted in pursuance of Article 35A are ultra vires of the fundamental rights conferred by Part III of the Constitution, especially, and not limited to, Articles 14 (right to equality) and 21 (protection of life).
What needs to be done? This matter requires the active participation of all stakeholders. It is necessary to give confidence to the residents of J&K that any alteration in status quo will not take away their rights but will boost J&K’s prosperity as it will open doors for more investment, resulting in new opportunities. Article 35A, which was incorporated about six decades ago, now requires a relook, especially given that J&K is now a well-established democratic State.
Background: In recent years, northern India has experienced poor air quality, significantly in the winter months, to the extent that the nation has some of the worst air quality in the world—surpassing even China. Researchers have additionally found that in some years, pollution ranges appear worse than regular because of weather conditions.
Key findings: El Niño occasions tend to end in lowered wind speeds within the area, which prevented airborne pollutants from moving out of densely populated areas. Antarctic Oscillation occasions create stronger winds in some components of northern India and weaken them in others, resulting in uneven impacts on pollution levels.
Significance: The model they have developed shows 75% accuracy in predicting pollution levels, and the prediction can be done even a season in advance. India has been emerging as one of the world’s most polluted countries, with particulate matter PM 2.5 levels spiking more than 999 microgram per cubic metre in parts of Delhi last year.
Studying a combination of El Nino, Antarctic Oscillation and the anomalies in sea surface temperature during autumn (September-November), can help forecast the pollution conditions in winter (December-February). The statistical model developed by the team can also help the government in adjusting policies and strategies for pollution control before winter comes, the paper published in Science Advances adds.
What is Antarctic Oscillation? The Antarctic oscillation (AAO) is a low-frequency mode of atmospheric variability of the southern hemisphere. It is also known as the Southern Annular Mode (SAM). It is defined as a belt of westerly winds or low pressure surrounding Antarctica which moves north or south as its mode of variability.
In its positive phase, the westerly wind belt that drives the Antarctic Circumpolar Current intensifies and contracts towards Antarctica, while its negative phase involves this belt moving towards the Equator.
Effects: Winds associated with the Southern Annular Mode cause oceanic upwelling of warm circumpolar deep water along the Antarctic continental shelf, which has been linked to ice shelf basal melt, representing a possible wind-driven mechanism that could destabilize large portions of the Antarctic Ice Sheet.