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The Anti-Defection Law Explained

December 6th, 2017 No comments

On Monday, December 4, the Chairman of Rajya Sabha disqualified two Members of Parliament (MPs) from the House under the Tenth Schedule of the Constitution (better known as the anti-defection law) for having defected from their party.[1] These members were elected on a Janata Dal (United) ticket.  The Madras High Court is also hearing petitions filed by 18 MLAs who were disqualified by the Speaker of the Tamil Nadu Assembly in September 2017 under the anti-defection law.  Allegations of legislators defecting in violation of the law have been made in several other states including Andhra Pradesh, Arunachal Pradesh, Goa, Manipur, Nagaland, Telangana and Uttarakhand in recent years.[2]  In this context, we explain the anti-defection law.

What is the anti-defection law?

Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.  The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.[3]

The Tenth Schedule was inserted in the Constitution in 1985. 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. A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.  The law applies to both Parliament and state assemblies.

Are there any exceptions under the law?

Yes, 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.

Various expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.[4] This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries a remuneration, and has not been excluded in a list made by the legislature).

How has the law been interpreted by the Courts while deciding on related matters?

The Supreme Court has interpreted different provisions of the law.  We discuss some of these below.

The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation

The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.[5] In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.[6]

In the case of the two JD(U) MPs who were disqualified from Rajya Sabha on Monday, they were deemed to have ‘voluntarily given up their membership’ by engaging in anti-party activities which included criticizing the party on public forums on multiple occasions, and attending rallies organised by opposition parties in Bihar.[7]

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

In 2015, the Hyderabad High Court, refused to intervene after hearing a petition which alleged that there had been delay by the Telangana Assembly Speaker in acting against a member under the anti-defection law.[9]

Is there a time limit within which the Presiding Officer has to decide?

The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea. Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.[10] In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House. There have also been instances where opposition members have been appointed ministers in the government while still retaining the membership of their original parties in the legislature.[11]

In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken away in small groups gradually to join the ruling party. In some of these cases, more than 2/3rd of the opposition has defected to the ruling party.

In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller groups.  However, it is not clear if they will still face disqualification if the Presiding Officer makes a decision after more than 2/3rd of the opposition has defected to the ruling party. The Telangana Speaker in March 2016 allowed the merger of the TDP Legislature Party in Telangana with the ruling TRS, citing that in total, 80% of the TDP MLAs (12 out of 15) had joined the TRS at the time of taking the decision.[12]

In Andhra Pradesh, legislators of the main opposition party recently boycotted the entire 12-day assembly session.  This boycott was in protest against the delay of over 18 months in action being taken against legislators of their party who have allegedly defected to the ruling party.[13] The Vice President, in his recent order disqualifying two JD(U) members stated that all such petitions should be decided by the Presiding Officers within a period of around three months.

Does the anti-defection law affect the ability of legislators to make decisions?

The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.

Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue. Several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions).[14]

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[1] Parliamentary Bulletin-II, December 4, 2017, http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066 and http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57067.

[2] MLA Defection Politics Not New, Firstpost, March 13, 2017, http://www.firstpost.com/politics/bjp-forms-govt-in-goa-manipur-mla-defection-politics-not-new-telangana-ap-perfected-it-3331872.html.

[3] The Constitution (52nd Amendment) Act, 1985, http://indiacode.nic.in/coiweb/amend/amend52.htm.

[4] Report of the Committee on Electoral Reforms, 1990, http://lawmin.nic.in/ld/erreports/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf and the National Commission to review the working of the Constitution (NCRWC), 2002, http://lawmin.nic.in/ncrwc/ncrwcreport.htm.

[5] Ravi Naik vs Union of India, 1994, https://indiankanoon.org/doc/554446/.

[6] G.Viswanathan Vs. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras& Another, 1996, https://indiankanoon.org/doc/1093980/  and Rajendra Singh Rana vs. Swami Prasad Maurya and Others, 2007, https://indiankanoon.org/doc/1620629/ and Parliamentary Bulletin-II, December 4, 2017, http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066.

[7] Parliamentary Bulletin-II, December 4, 2017, http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066.

[8] Kihoto Hollohon vs. Zachilhu and Others, 1992, https://indiankanoon.org/doc/1686885/.

[9] Sabotage of Anti-Defection Law in Telangana, 2015, https://www.epw.in/journal/2015/50/commentary/sabotage-anti-defection-law-telangana.html.

[10] Speaker, Haryana Vidhan Sabha Vs Kuldeep Bishnoi & Ors., 2012, https://indiankanoon.org/doc/45034065/  and Mayawati Vs Markandeya Chand & Ors., 1998, https://indiankanoon.org/doc/1801522/.

[11] Anti-Defecton Law Ignored, November 30, 2017, http://www.news18.com/news/politics/anti-defection-law-ignored-as-mlas-defect-to-tdp-trs-in-andhra-pradesh-and-telangana-1591319.html and It’s official Minister Talasani is still a TDP Member, March 27, 2015, http://www.thehansindia.com/posts/index/Telangana/2015-03-27/Its-Official-Minister-Talasani-is-still-a-TDP-member/140135.

[12] Telangana Legislative Assembly Bulletin, March 10, 2016, http://www.telanganalegislature.org.in/documents/10656/19317/Assembly+Buletin.PDF/a0d4bb52-9acf-494f-80e7-3a16e3480460;  12 TDP MLAs merged with TRS, March 11, 2016, http://www.thehindu.com/news/national/telangana/12-tdp-mlas-merged-with-trs/article8341018.ece.

[13] The line TD leaders dare not cross, December 4, http://www.thehindu.com/todays-paper/tp-national/tp-andhrapradesh/the-line-td-leaders-dare-not-cross/article21257521.ece

[14] Report of the National Commission to review the working of the Constitution, 2002, http://lawmin.nic.in/ncrwc/ncrwcreport.htm, Report of the Committee on electoral reforms, 1990, http://lawmin.nic.in/ld/erreports/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf  and Law Commission (170th report), 1999, http://www.lawcommissionofindia.nic.in/lc170.htm.

Role of Parliament in holding the government accountable

November 22nd, 2017 No comments

Parliament sessions are usually held thrice a year: once in February for the Budget Session, once around July or August for the Monsoon Session, and once in November for the Winter Session.  This year, the government is yet to announce the dates for the Winter Session.  While there has been uncertainty around whether Parliament will meet, ministers in the government have indicated that the Session will be held soon.[1]

The practice of allowing the government to convene Parliament differs from those followed in other countries.  Some of these countries have a limited role for the government in summoning the legislature, because in a parliamentary democracy the executive is accountable to Parliament.  Allowing the government to call the Parliament to meet could be in conflict with this principle.  While we wait for the government to announce the dates for the Winter Session, this post looks at the relationship between Parliament and the government, recommendations made over the years on improving some parliamentary customs, and discusses certain practices followed by other countries.

What is the role of Parliament in a democracy?

The Constitution provides for the legislature to make laws, the government to implement laws, and the courts to interpret and enforce these laws.  While the judiciary is independent from the other two branches, the government is formed with the support of a majority of members in the legislature.  Therefore, the government is collectively responsible to Parliament for its actions.  This implies that Parliament (i.e. Lok Sabha and Rajya Sabha) can hold the government accountable for its decisions, and scrutinise its functioning.  This may be done using various methods including, during debates on Bills or issues on the floor of Parliament, by posing questions to ministers during Question Hour, and in parliamentary committees.

Who convenes Parliament?

Parliament must be convened by the President at least once in every six months.  Since the President acts on the advice of the central government, the duration of the session is decided by the government.

Given the legislature’s role in keeping the executive accountable for its actions, one argument is that the government should not have the power to convene Parliament.  Instead, Parliament should convene itself, if a certain number of MPs agree, so that it can effectively exercise its oversight functions and address issues without delay.  Some countries such as the United Kingdom and Australia release an annual calendar with the sitting dates at the beginning of the year.

How regularly has Parliament been meeting over the years?

Over the years, there has been a decline in the sitting days of Parliament.  While Lok Sabha met for an average of 130 days in a year during the 1950s, these sittings came down to 70 days in the 2000s.  Lesser number of sittings indicates that Parliament was able to transact less business compared to previous years.  To address this, the National Commission to Review the Working of the Constitution has recommended that Lok Sabha should have at least 120 sittings in a year, while Rajya Sabha should have 100 sittings.[2] Sitting days of Parliament

The Constituent Assembly, while drafting the Constitution had debated the power that should be given to Parliament with regard to convening itself.  Mr. K. T. Shah, a member of the Assembly, had suggested that in case the President or the Prime Minister are unable or unwilling to call for a Parliament session, the power to convene the Houses should be given to the presiding officers of those Houses (i.e., the Chairman of Rajya Sabha and the Speaker of Lok Sabha).  In addition, he had also suggested that Parliament should itself regulate its procedure, sittings and timings.[3]

How does Parliament hold the government accountable?

One of the forums of holding the government accountable for its actions is the Question Hour.  During Question Hour, MPs may pose questions to ministers related to the implementation of laws and policies by the government.questions answered

In the 16th Lok Sabha, question hour has functioned in Lok Sabha for 77% of the scheduled time, while in Rajya Sabha it has functioned for 47%.  A lower rate of functioning reflects time lost due to disruptions which reduces the number of questions that may be answered orally.  While Parliament may sit for extra hours to transact other business, time lost during Question Hour is not made up.  Consequently, this time lost indicates a lost opportunity to hold the government accountable for its actions.

Further, there is no mechanism currently for answering questions which require inter-ministerial expertise or relate to broader government policy.  Since the Prime Minister does not answer questions other than the ones pertaining to his ministries, such questions may either not get adequately addressed or remain unanswered.  In countries such as the UK, the Prime Minister’s Question Time is conducted on a weekly basis.  During the 30 minutes the Prime Minister answers questions posed by various MPs.  These questions relate to broader government policies, engagements, and issues affecting the country.[4]

How is public opinion reflected in Parliament?

MPs may raise issues of public importance in Parliament, and examine the government’s response to problems being faced by citizens through: (i) a debate, which entails a reply by the concerned minister, or (ii) a motion which entails a vote.  The time allocated for discussing some of these debates or Bills is determined by the Business Advisory Committee of the House, consisting of members from both the ruling and opposition parties.

Using these methods, MPs may discuss important matters, policies, and topical issues.  The concerned minister while replying to the debate may make assurances to the House regarding steps that will be taken to address the situation.  As of August 2017, 50% of the assurances made in the 16th Lok Sabha have been implemented.[5] Motions

Alternatively, MPs may move a motion for: (i) discussing important issues (such as inflation, drought, and corruption), (ii) adjournment of business in a House in order to express displeasure over a government policy, or (iii) expressing no confidence in the government leading to its resignation.  The 16th Lok Sabha has only discussed one adjournment motion so far.

To improve government accountability in Parliament, the opposition in some countries such as the UK, Canada, and Australia forms a shadow cabinet.[6],[7]  Under such a system, opposition MPs track a certain portfolio, scrutinise its performance and suggest alternate programs.  This allows for detailed tracking and scrutiny of ministries, and assists MPs in making constructive suggestions.  Some of these countries also provide for days when the opposition parties decide the agenda for Parliament.

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[1] Sonia Gandhi accuses of Modi govt ‘sabotaging’ Parliament Winter session, Arun Jaitley rejects charge’, The Indian Express, November 20, 2017, http://indianexpress.com/article/india/jaitley-refutes-sonia-gandhis-charge-of-sabotaging-parliament-session-says-congress-too-had-delayed-sitting-4946482/; ‘Congress also rescheduled Parliament sessions: Arun Jaitley hits back at Sonia Gandhi’, The Times of India, November 20, 2017, https://timesofindia.indiatimes.com/india/congress-also-rescheduled-parliament-sessions-arun-jaitley-hits-back-at-sonia-gandhi/articleshow/61726787.cms.

[2]  Parliament and State Legislatures, Chapter 5, National Commission to Review the Working of the Constitution, March 31, 2002, http://lawmin.nic.in/ncrwc/finalreport/v1ch5.htm.

[3] Constituent Assembly Debates, May 18, 1949.

[4]  Prime Minister’s Question Time, Parliament of the United Kingdom, http://www.parliament.uk/about/how/business/questions/.

[5]  Lok Sabha and Session Wise Report of Assurances in Lok Sabha, Ministry of Parliamentary Affairs, http://www.mpa.gov.in/mpa/print_summary_lses_ls.aspx.

[6]  Her Majesty’s Official Opposition, Parliament of the United Kingdom, http://www.parliament.uk/mps-lords-and-offices/government-and-opposition1/opposition-holding/.

[7]  Current Shadow Ministry List, Parliament of Australia, http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Parliamentary_Handbook/Shadow.

Following the elections of the Vice President of India

August 5th, 2017 No comments

The elections for the next Vice-President of India are underway today.  The current Vice President Dr. Hamid Ansari will complete his second five-year term on August 10, which is in a few days.  While the BJP-led NDA’s candidate is Mr. Venkaiah Naidu, Dr. Gopalkrishna Gandhi is the joint candidate fronted by 18 opposition parties led by the INC.  In this post, we take a closer look at the constitutional mandate and role of the Vice-President of India and how the elections for the post will play out today.

Constitutional mandate as Vice President

The Vice-President is the second-highest constitutional office in India.  He acts as the President in the absence of the incumbent President, and is the ex officio Chairman of Rajya Sabha.  As an indication of his bipartisanship and apolitical character, the Vice-President does not hold membership of any political party or any other office of profit.   Further, given his constitutional stature, the statements given by the Vice President assume national significance.  The outgoing Vice President’s statements on issues like press freedom and welfare of minority communities led to several media debates and attracted widespread attention.

Vice-President’s role as Chairman of the Rajya Sabha

As Chairman of Rajya Sabha, the Vice President is the final authority on the interpretation of the Constitution and the Rules of Procedure for all house-related matters.  His rulings constitute binding precedent.  He also determines whether a Rajya Sabha member stands to be disqualified on grounds of defection.  Such powers make him an important stakeholder in the functioning of our parliamentary democracy.

The Vice President is also vested with powers to improve the functioning of the Upper House.  There have been several instances where the current Vice President has used his powers to address issues ranging from improving the productivity of question hour, reducing prolonged disruptions, maintaining decorum in the House, to facilitating discussion on issues of national importance.

Addressing disruptions: In March 2010, the Vice President ordered seven MPs to be evicted from the House for causing disruptions during the discussion and passage of the Women’s Reservation Bill.  More recently, in December 2015, the Vice President called for an all-party meeting during the last leg of the then ongoing Winter Session to discuss the matter of continuous disruptions in the House.  The remaining three days of the session after the all-party meet recorded 79% productivity, while the House had recorded overall productivity of 51% that session.

Functioning of Question Hour: In another instance, in November 2014, the Vice President issued a direction to conduct question hour from 12 noon to 1 pm instead of the originally allocated first hour of the day.  This was seen as an attempt to address the issue of low productivity of question hour mostly due to disruptions at the start of the day. However, question hour productivity has not shown any significant improvement yet, with continuing disruptions.

Parliamentary Privilege: Parliamentary privilege refers to rights and immunity enjoyed by Parliament and MPs, which may be necessary to effectively discharge their constitutional functions.  When disregarded, the offence is called a breach of privilege and is punishable under law. The Chairman is the guardian of these privileges and can also issue warrants to execute the orders of the House, where necessary.  In 1967, one person was held to be in contempt of Rajya Sabha for throwing leaflets from the visitors’ gallery of the House.  The then Vice President, in accordance with the resolution of the House, had sentenced the person to simple imprisonment, till the conclusion of that session.

The Chairman’s consent is required to raise a question of breach of privilege.  He also has the discretion whether to refer it to the Privileges Committee, and whether to accept the committee’s recommendations.  In October 2015, the current Vice President had referred the matter of a member’s controversial “terrorists in Parliament” remark to the Privileges Committee upon receiving complaints from several opposition MPs.

Role in Parliamentary Committees and other institutions

Parliamentary committees review proposed laws, oversee activities of the executive, and scrutinise government’s expenditure.  The Vice President nominates members to various Parliamentary Committees, appoints their Chairmen and issues directions to them.  The Vice President also nominates members of the Rajya Sabha on various bodies such as the Haj Committee, the Institute of Constitutional and Parliamentary Studies, Courts of several universities such as JNU, etc. He is also on the three-member Committee which nominates the Chairman of the Press Council of India.

So, how is the Vice President elected?

Unlike Presidential elections, MLAs do not have a vote in these elections.  Dr. B R Ambedkar had explained why during the constituent assembly debates: “The President is the Head of the State and his powers extend both to the administration by the centre as well as of the states… But when we come to the Vice-President, his normal functions are merely to preside over the Council of States.  It is only on a rare occasion, and that too for a temporary period, that he may be called upon to assume the duties of a President”.

Therefore, the Electoral College for the Vice- Presidential elections consists of all 790 MPs.  The elections are conducted using the system of single transferable voting that results in (approximately) proportional representation.  The voting is done through secret ballot implying that parties cannot issue whips to their MPs and anti-defection laws do not apply.

Each voter has one vote with the same value of 1.  Every voter can mark as many preferences, as there are candidates contesting the election.  It is necessary for at least the first preference to be marked.  A candidate needs to win a required number of votes (or the quota) to be elected.  If no one achieves the required quota after the first round of counting the first preference votes, the candidate with the lowest votes is eliminated.  His votes are then transferred to the second preference mentioned (if any) on the votes he received.  If no one achieves the required quota again, the process is repeated till either:

  1. a candidate achieves the required quota, or
  2. all candidates, except one, are eliminated.

The upcoming Vice Presidential elections

Let us now determine the quota required for victory in today’s election. The total value of votes of the electoral college is divided by two, and one is added (to ensure a majority) to the quotient to determine the quota. Hence, the quota is calculated as:

Quota    = 790/2 + 1 = 395 + 1= 396

The candidate who gets 396 votes will win the election.  If no candidate gets to this mark, the second and further preferences may be counted until the mark is reached or all candidates, but one, are eliminated.

We know the number of seats held by each party in Parliament. Let us assume that all MPs vote along their party line.  The position of the NDA and UPA is depicted in the figure below at the two ends of the chart.  All other major parties and independents are marked in the middle.

VP quota

We observe that, while the BJP falls short of the quota by 58 votes, the shortfall can be overcome if NDA allies TDP, Shiv Sena, Shiromani Akali Dal, LJP and PDP support its candidate.

With the voting taking place this morning, the outcome and results will become clear by later today.  It is hoped that the new Vice President will uphold the twin constitutional mandates as the second highest constitutional functionary and the Chairman of Rajya Sabha, just as his distinguished predecessors have done.