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Indian Express Editorial Analysis

6-March-2024

1. For the Gaya Lals of today

Topic: GS2 – Polity – Indian Constitution – Amendments
This topic is relevant for both Prelims and Mains in the context of knowing facts about constitutional provisions related to defection.
Context:
  • In the realm of Indian politics, particularly amidst the intricacies of the 10th Schedule, the adage “the law is an ass” finds profound validation.
  • Despite constitutional safeguards against defection and legal frameworks aimed at maintaining political integrity, the reality is far from ideal.
  • This analysis dissects the disjunction between legal principles and their application in the context of defections, highlighting the pervasive influence of human venality and the inadequacies of constitutional mechanisms.
Defection Dynamics and Legal Lacunae:
  • The landscape of Indian politics is rife with examples of defections, showcasing the wide gap between rhetoric and action in upholding constitutional integrity.
  • From the antics of politicians like Gaya Lal, who switched parties in a single day, to the sophisticated maneuvers employed today, the essence of the anti-defection law is routinely circumvented.
  • Despite amendments and judicial pronouncements, the prevalence of defections underscores the limitations of constitutional law in curbing opportunistic political behavior.
The ill-Repute of the 10th Schedule:
  • The reputation of the 10th Schedule, far from being tarnished by a lack of legal clarity, stems from its ineffectiveness in deterring defections.
  • Recent judicial pronouncements, such as the Manipur judgment, have attempted to set guidelines for timely adjudication of disqualification petitions.
  • However, the practical application of these directives often falls short, allowing ample room for manipulation and delay.
  • Despite legal provisions aimed at curbing defections, the prevalence of political jugglery persists, rendering the anti-defection law largely toothless in practice.
Challenges in Enforcement and Adjudication:
  • The role of the Speaker, entrusted with adjudicating complaints of disqualification, presents inherent challenges due to partisan affiliations.
  • Despite being the sole authorized entity for such adjudication, the Speaker’s alignment with a particular political party often compromises impartiality.
  • This partisan bias manifests in prolonged delays in addressing complaints from opposition parties, while prompt action is taken against defectors aligned with the ruling party.
  • Furthermore, innovative tactics, such as preemptive defection applications and engineered resignations, exploit loopholes in the legal framework, further undermining its efficacy.
Proposed Solutions and the Role of the Speaker:
  • In light of the pervasive shortcomings of the current system, calls for the abolition of the 10th Schedule and its replacement with a simplified mandate gain traction.
  • Advocates propose stringent measures, including mandatory resignations and prohibitions on holding ministerial positions without re-election upon party defection.
  • Additionally, suggestions to reform the role of the Speaker, by eliminating partisan affiliations and ensuring a non-partisan selection process, aim to restore credibility to the adjudicatory process.
  • However, the feasibility and implementation of such reforms remain subjects of debate within the Indian political landscape.
Conclusion:
  • The discrepancy between legal frameworks and their practical application in addressing defections highlights deep-seated challenges within the Indian political system.
  • While legal provisions exist to uphold constitutional integrity, the pervasiveness of opportunistic political behaviour necessitates comprehensive reforms.
  • Addressing the inherent biases in the adjudicatory process and strengthening mechanisms to deter defections are essential steps towards restoring public trust and integrity in Indian democracy.
  • Only through concerted efforts towards reform can the law cease to be derided as an “ass” and fulfill its intended purpose of upholding democratic principles.
What is the Anti-Defection Law?
  • Defection refers to switching political allegiance, particularly when a member of a political party leaves the party and joins another party or becomes independent.
  • Anti-defection Law in India was enacted in 1985 through the 52nd Amendment Act of 1985 as part of the Tenth Schedule of the Constitution of India.
  • Anti-defection laws aim to prevent or discourage defection by imposing penalties on politicians who switch parties or otherwise violate party discipline.
  • These laws may be designed to ensure that politicians are held accountable to the voters who elected them and to maintain the stability and cohesion of political parties.
  • In some countries, anti-defection laws allow political parties to expel members who defect, while in others, they may disqualify defectors from holding public office or impose other penalties.
What are some of the judicial observations regarding defection in India? Some of the important cases related to anti-defection in India include
  1. Kihoto Hollohan vs. Zachillhu and Others (1992): In this case, the Supreme Court of India upheld the constitutionality of the law and ruled that the provisions were necessary to prevent the destabilization of governments and to ensure the integrity of the electoral process.
  2. G. Viswanathan vs. Hon’ble Speaker, Tamil Nadu Legislative Assembly (1995): In this case, the Supreme Court ruled that the Speaker of a legislative assembly has the power to decide on cases of defection and that the decision of the Speaker is final and cannot be challenged in a court of law.
  3. Ravi S. Naik vs. Union of India (1994): In this case, the Speaker or Chairman of the relevant legislative body can disqualify an elected representative for defection.
PYQ: Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (2014) (a) Second Schedule (b) Fifth Schedule (c) Eighth Schedule (d) Tenth Schedule Ans: (d)
Practice Question:  Discuss the challenges faced in enforcing the anti-defection law in India. Analyze the gap between constitutional principles and their practical application in curbing political defections. (250 words/15 m)

2. PROTECTING DEBATE

Topic: GS2 – Polity – Parliament – Functioning
This topic is relevant for both Prelims and Mains in the context of knowing facts about constitutional principles, parliamentary privileges, and the functioning of democratic institutions.
Context:
  • The Supreme Court of India, in a significant ruling, overturned its 1998 judgment on parliamentary privilege, emphasizing that bribery is not protected under such privileges.
  • The earlier ruling, known as the JMM bribery verdict, had granted lawmakers immunity from prosecution even in cases where they accepted bribes for voting or making speeches in Parliament or state legislative assemblies.
  • However, the recent split ruling by the Supreme Court has provided a welcome corrective to this interpretation, rooted in principles of equality and probity.
Erosion of Democratic Foundations: Chief Justice’s Assertion:
  • Chief Justice DY Chandrachud, leading a seven-judge bench, underscored the detrimental impact of corruption and bribery on Indian parliamentary democracy.
  • He emphasized that such practices undermine the foundational principles of the Constitution, eroding the aspirational and deliberative ideals essential for a responsible, responsive, and representative democracy.
  • This assertion highlights the broader ramifications of bribery in the functioning of democratic institutions.
Case Background and Constitutional Interpretation:
  • The case originated in 1993 when JMM leader Shibu Soren and other party members were accused of accepting bribes related to a no-confidence motion against the PV Narasimha Rao government.
  • The earlier interpretation of parliamentary privileges, based on Article 105(2), emphasized lawmakers’ freedom of speech and voting.
  • However, the recent verdict emphasizes that bribery compromises the free will and conscience essential for lawmakers to discharge their duties effectively.
  • The ruling stresses the need to interpret privileges in alignment with the larger ideals of the Constitution, rather than as absolute rights disconnected from democratic principles.
Addressing Quid Pro Quo and Affirming Equality:
  • The Supreme Court’s ruling also tackles the issue of quid pro quo associated with bribery, asserting that the mere acceptance or seeking of undue advantage with the intent to act in a certain way is sufficient to constitute the offense.
  • Additionally, the court affirms the principle of equality, stating that creating a class of public servants afforded extraordinary protection would violate Article 14 of the Constitution.
  • This reaffirmation underscores the importance of upholding constitutional principles in adjudicating matters related to parliamentary privileges.
Cautionary Note and Future Implications:
  • While the ruling signifies a crucial step towards maintaining democratic integrity, caution is warranted to ensure that it does not leave opposition legislators vulnerable to undue targeting.
  • In an environment where debate and disagreement in legislative bodies are increasingly challenged, both the executive and judiciary face the imperative of fostering a fearless atmosphere conducive to robust discussions and exchange of ideas.
  • Upholding the court’s directive to create such an environment will be pivotal in safeguarding democratic norms and principles in the years ahead.
Conclusion:
  • The Supreme Court’s ruling not only rectifies previous interpretations of parliamentary privilege but also underscores the imperative of upholding democratic values and equality under the law.
  • It sets a precedent for future cases while emphasizing the pivotal role of democratic institutions in preserving the integrity of India’s parliamentary democracy.
Privileges and Immunities to the MPs and MLAs
Meaning:
  • Privileges are special rights, immunities and exemptions enjoyed by the two Houses of Parliament and legislature of States, and their committees and their members.
  • The Constitution has also extended these privileges to those persons who are entitled to speak and take part in the proceedings of a House or any of its committees.
  • For example, the Attorney General of India.
Constitutional provisions:
  • Article 105 and Article 194 to the Constitution of India grant privileges or advantages to the MPs (Article 105) and to the MLAs (Article 194) of every State.
  • These powers, privileges and immunities should be defined by the law from time-to-time.
  • These privileges are considered as special provisions and have an overriding effect in conflict.
  • It must be clarified here that these privileges do not extend to the President (or Governor) who is also an integral part of the Parliament (or state legislature).
Privileges mentioned in the Constitution:
  • It gives the MPs freedom of speech [Article 115 (1)].
  • It provides that no MP will be liable to any proceedings before any Court for anything said or any vote given by him/her in the Parliament or any committee thereof [Article 105(2)].
  • Also, no person will be held liable for any publication of any report, paper, votes or proceedings if the publication is made by the parliament or any authority under it.
  • The same provisions are stated under Article 194, where MLAs of a state are referred instead of MPs.
Purpose:
  • These privileges and immunities –
  • Are granted so that MPs/MLAs can perform their duties or can function properly without any hindrances – essential for democratic functioning of the legislatures.
  • Without these privileges,The Houses can neither maintain their authority, dignity and honour. Nor can protect their members from any obstruction in the discharge of their parliamentary responsibilities.
Difference between Article 19 and Article 105:
  • Both the Articles, (Article 19(1)(a) and Article 105) of the Constitution talks about freedom of speech.
  • Article 105 applies to the members of parliament not subjected to any reasonable restriction. But, Article 19(1)(a) applies to citizens and is subject to reasonable restrictions.
  • This means, Article 105 is an absolute privilege given to the members of the parliament but this privilege can be used in the premises of the parliament and not outside the parliament.
PYQ: The ‘Powers, Privileges and Immunities of Parliament and its Members’ as envisaged in Article 105 of the Constitution leave room for a large number of un-codified and un-enumerated privileges to continue. Assess the reasons for the absence of legal codification of the ‘parliamentary privileges’. How can this problem be addressed? (200 words/12.5m) (UPSC CSE (M) GS-2 2014)
Practice Question: Discuss the recent Supreme Court ruling overturning its previous judgment on parliamentary privilege, emphasizing the non-protected status of bribery in legislative proceedings. Analyze the implications of this ruling on democratic principles and institutional integrity in India. (250 words/15 m)

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