In a recent judgement, the Karnataka High Court upheld the disqualification of five independent MLAs from the Assembly. These MLAs, who had previously served as Ministers in the Yeddyurappa government, were disqualified along with 11 others after they withdrew their support to the government. The disqualifications raise some important questions on the working of the anti-defection law. While the law was framed in 1985 with the specific intent of 'combating the evil of political defections', over the years several unanticipated consequences have come to the fore. The primary among these is the erosion of independence of the average legislator. The need for an anti-defection law was first felt in the late 1960s. Of the 16 States that went to polls in 1967, Congress lost majority in eight and failed to form the government in seven. Thus began the era of common minimum programmes and coalition governments. This was accompanied with another development - the phenomenon of large scale political migrations. Within a brief span of 4 years (1967-71), there were 142 defections in Parliament and 1969 defections in State Assemblies across the country. Thirty-two governments collapsed and 212 defectors were rewarded with ministerial positions. Haryana was the first State where a Congress ministry was toppled. The Bhagwat Dayal ministry was defeated in the Assembly when its nominee for speakership lost out to another candidate. Congress dissidents defected to form a new party called the Haryana Congress, entered into an alliance with the opposition and formed a new government under the Chief Ministership of Rao Birender Singh (also a Congress defector). Haryana thus became the first State to reward a defector with Chief Ministership. Another Haryana legislator, Gaya Lal, defected thrice within a fortnight. The now well know terms 'Aya Ram' and 'Gaya Ram' that are often used to describe political turncoats owe inspiration to him. It was to address this issue that the anti-defection law was passed in 1985. This law amended the Constitution and added the Tenth Schedule to the same. The Supreme Court, in Kihota Hollohon vs. Zachilhu (1992), while upholding the validity of the law held that decisions of disqualification shall be open to judicial review. It also made some observations on Section 2(1) (b) of the Tenth schedule. Section 2(1) (b) reads that a member shall be disqualified if he votes or abstains from voting contrary to any direction issued by the political party. The judgement highlighted the need to limit disqualifications to votes crucial to the existence of the government and to matters integral to the electoral programme of the party, so as not to 'unduly impinge' on the freedom of speech of members. This anti-defection law has regulated parliamentary behaviour for over 25 years now. Though it has the advantage of providing stability to governments and ensuring loyalty to party manifestos, it reduces the accountability of the government to Parliament and curbs dissent against party policies. In this context, Manish Tewari's private member bill merits mention: he suggests that anti-defection law be restricted to votes of confidence and money bills. Such a move will retain the objective of maintaining the stability of the government while allowing MPs to vote freely (subject to the discipline of the party whip) on other issues. This brings us to the question - Is the anti-defection law indispensable? Is defection peculiar to India? If not, how do other countries handle similar situations? It is interesting to note that many advanced democracies face similar problems but haven't enacted any such laws to regulate legislators. Prominent cases in UK politics include the defection of Ramsay Macdonald, the first Labour Prime Minister, in 1931. He defected from his party following disagreements on policy responses to the economic crisis. Neither Macdonald nor any of his three cabinet colleagues who defected with him resigned their seats in the House of Commons to seek a fresh mandate. Australian Parliament too has had its share of defections. Legislators have often shifted loyalties and governments have been formed and toppled in quick succession. In the US too, Congressmen often vote against the party programme on important issues without actually defecting from the party. India might have its peculiar circumstances that merit different policies. But, the very fact that some other democracies can function without such a law should get us thinking. Sources/ Notes:  PRS Conference note: The Anti-Defection Law – Intent and Impact  Column by CV Madhukar (Director, PRS) titled 'Post-independents' in the Indian Express
The Budget Session of Parliament began with President Pratibha Patil’s address to a joint session of the Lok Sabha and the Rajya Sabha. The session will continue till April 21, 2011 with a recess from March 17 to April 3, 2011. The Railways Budget was presented and the Economic Survey was released on February 25. The Union Budget will be presented on February 28, 2011. The agenda for government Bills includes 31 pending Bills for consideration and passing. Three new Bills are listed for introduction, consideration and passing. The government plans to introduce 32 new Bills. The President made certain commitments on legislation for the Budget Session. We list the commitments made in the speech and the status of implementation.
|Issue||President’s Speech||Current Status|
|Food Security||The law will entitle statutorily every family, below poverty line, to food grains at highly subsidised prices. Important inputs in this regard have been received from the National Advisory Council. The states are being consulted as the success of the programme hinges critically on their commitment to reforms in the public distribution system.||In 2010, an Expert Committee was set up by the Prime Minister under the chairmanship of Dr C. Rangarajan to examine the implications of the proposal of the National Advisory Council (NAC) and make recommendations. The NAC had proposed that legal entitlement to subsidised foodgrains to be extended to at least 75% of the population. The Rangarajan Committee Report, published in Jan 2011, raised some objections based on availability of foodgrains and subsidy implications.|
|Corruption||A Group of Ministers formed to consider all measures, including legislative and administrative, to tackle corruption and improve tranparency. The government plans to ratify the UN Convention against Corruption.||The UPA government has formed a Group of Ministers under the chairmanship of Shri Pranab Mukherjee, Finance Minister. The GoM would recommend measures to end discretionary powers of ministers and summary dismissal of corrupt government officials.|
|A Bill to give protection to whistleblowers have been introduced.||The Public Interest Disclosure Bill was introduced in the Lok Sabha on Aug 26, 2010. The Bill was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice (PRS analysis on the Bill).|
|Judicial Reforms||High priority to be given to improving the delivery of justice and reducing delays in the disposal of cases. The details of the National Mission for Delivery of Justice to be finalised soon. The Judicial Standards and Accountability Bill has already been introduced in Parliament to enhance the accountability of the judiciary.||The government plans to set up the National Mission for Delivery of Justice. A blueprint of the mission is available on the Law Ministry’s website. The Judicial Standards and Accountability Bill was introduced in the Lok Sabha on Dec 1, 2010. The Bill was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice.|
|Black Money||The government has commissioned a multi-disciplinary study to understand the ramifications for national security and recommend a suitable framework to tackle the problem of black money. India gained membership to the Financial Action Task Force in recognition of its anti-money laundering and anti-tax evasion measures.||The Finance Minister stated that he could not reveal names of Indians who have money stashed abroad because of an absence of legal framework. Expert group set up to look into the issue. The Prevention of Money Laundering Act, 2002 was amended in 2009 (PRS analysis on the Bill).|
|Mines||The Mines and Minerals (Development and Regulation) Act is proposed to be replaced by a new legislation, which will ensure that local communities benefit adequately from the development process.||A draft Bill was formulated by a Group of Ministers in 2010. It is now under legal vetting before it is taken to the Cabinet for its approval (Relevant documents available here).|
|Bills related to Women and Children||Government introduced a constitutional amendment bill to provide reservation for women in Parliament and state legislatures. The Bill was passed by the Rajya Sabha but is pending in the Lok Sabha. The President hopes that it will be considered in the Lok Sabha at the earliest.||The Bill was introduced on May 6, 2008 and referred to the Standing Committee which submitted its report on Dec 17, 2009. The Bill was passed in the Rajya Sabha on March 9, 2010. However, it is pending in the Lok Sabha (PRS analysis on the Bill). It is listed for consideration and passing in the Budget Session.|
|Introduced the Protection of Women against Sexual Harassment at Workplace Bill. Proposal to introduce a bill regarding protection of children from sexual offences.||The Protection of Women against Sexual Harassment Bill was introduced on Dec 7, 2010. The Bill was referred to the Standing Committee, which is scheduled to submit its report by June 30, 2011. The Protection of Children from Sexual Offences Bill, 2011 is listed for introduction in the Budget Session Alert.|
|Biotechnology||A Biotechnology Regulatory Authority of India Bill is proposed to be introduced this session||The Biotechnology Authority of India Bill, 2011 is listed for introduction in the Budget Session Alert.|
If the government has its way, accessing the internet using wifi hotspots at airports and cafes just might become a thing of the past. It might happen because of the way "cyber cafes" are defined in the Information Technology Act. The IT Act defines a cyber café as any facility which as part of its business offers internet access to people. The The government has sought feedback on a draft regulation to govern the working of cyber cafes. The draft regulation can be found here. The draft regulations requires every cyber cafe to have a license and give internet access to people after they prove their identity to the satisfaction of the cyber café. The cyber cafés are required to maintain the logs of users and of websites accessed by users. Cyber cafes are also required to ensure that their service is not utilised by people for any illegal activity or for viewing pornography. There are requirements on the physical layout of the cyber cafe -- for example, they need to prominently display a board stating that users may not view pornography. These regulations by their very nature are designed for a traditional cyber café where people use computer terminals provided by the cyber café owner and access the internet. But because of the waycyber café is defined in the Act, most public wifi hotspots would be called a cyber café and thereby be regulated by the cyber café guidelines. So the local café which provides wireless access to its patrons would have to get a licence and follow other cyber café guidelines. Since the draft guidelines place enough legal responsibility on a cyber café that many café and other public places which offer wireless internet would rethink their strategy of providing this service. You can send in your feedback to the draft guidelines by the 28th of February to firstname.lastname@example.org
There are a little over 4000 MLAs across all states in India. For the citizen, a law passed by his state legislature is as relevant and important as one passed by Parliament. And MLAs also have no research support available to them to understand and reflect on policy issues before voting for them in the state assembly. To make matters worse, the sittings in many state assemblies are abysmally low as can be seen from this graph showing some states. For a while now, several MPs have been urging PRS to initiate some work with MLAs. We started a Policy Guide series some months ago -- essentially a 2-page note on policy issues of contemporary relevance that would be useful for MLAs. We started sending these out to MLAs in several states, and some MLAs called PRS back for more information and research. As a way to increase the engagement, PRS decided to hold a workshop for MLAs. For this, we partnered with Indian School of Business, Hyderabad, and held our first workshop for MLAs from Jan 3-6, 2011. In the first edition of the workshop, we had 44 MLAs participating from a dozen states across India. The response was overwhelmingly positive (see short videos of MLA feedback here), with requests from MLAs to hold more such workshops for other MLAs as well. Several also wanted longer duration workshops on important policy issues. We see this as a small beginning for a sustained engagement with our MLAs.
The union government is reportedly considering a legislation to create anti-corruption units both at the centre and the states. Such institutions were first conceptualized by the Administrative Reforms Commission (ARC) headed by Morarji Desai in its report published in 1966. It recommended the creation of two independent authorities - the Lokpal at the centre and the Lokayuktas in the states. The first Lokpal Bill was introduced in Parliament in 1968 but it lapsed with the dissolution of Lok Sabha. Later Bills also met a similar fate. Though the Lokpal could not be created as a national institution, the interest generated led to the enactment of various state legislations. Maharashtra became the first state to create a Lokayukta in 1972. Presently more than 50% of the states have Lokayuktas, though their powers, and consequently their functioning varies significantly across states. Existing institutional framework The Central Vigilance Commission (CVC) and the Central Bureau of Investigation (CBI) are the two cornerstones of the existing institutional framework. However, the efficacy of the current system has been questioned.  Though the CVC (set up in 1964) is an independent agency directly responsible to the Parliament, its role is advisory in nature. It relies on the CBI for investigation and only oversees the bureaucracy; Ministers and Members of Parliament are out of its purview. Thus, presently there is no authority (other than Parliament itself) with the mandate to oversee actions of political functionaries. At the state level, similar vigilance and anti-corruption organisations exist, although the nature of these organisations varies across states. Karnataka Lokayukta Act The Karnataka Lokayukta is widely considered as the most active among the state anti-corruption units.  It was first set up in 1986 under the Karnataka Lokayukta Act, 1984. The Act was recently amended by the state government following the resignation of the Lokayukta, Justice Santosh Hegde. Justice Hegde had been demanding additional powers for the Lokayukta - especially the power to investigate suo-motu. Following the amendment, the Lokayukta has been given the suo motu powers to investigate all public servants except the CM, Ministers, Legislators and those nominated by the government. Following are the main provisions of the Karnataka Lokayukta Act:
- The public servants who are covered by the Act include the CM, Ministers, Legislators and all officers of the state government including the heads of bodies and corporations established by any law of the state legislature.
- The body is constituted for a term of five years and consists of one Lokayukta and one or more Upalokayuktas. All members must have been judges, with either the Supreme Court or some High Court.
- Members are appointed on the advice of the CM in consultation with the Chief Justice of the Karnataka High Court, the Chairman of the Karnataka Legislative Council, the Speaker of the Karnataka Legislative Assembly, and the Leader of Opposition in both Houses.
- Investigations involving the CM, Ministers, Legislators and those nominated by the government must be based on written complaints; other public servants can be investigated suo-motu.
- Reports of the Lokayukta are recommendatory. It does not have the power to prosecute.
The forthcoming Ordinance/ Bill Given that a Lokpal Bill is on the anvil, it might be useful at this point to enumerate some metrics/ questions against which the legislation should be tested:
- Should the Lokpal limit itself to political functionaries? Should CBI and CVC be brought under the Lokpal, thereby creating a single consolidated independent anti-corruption entity?
- Should Lokpal be restricted to an advisory role? Should it have the power to prosecute?
- Should it have suo-motu powers to investigate? Would a written complaint always be forthcoming, especially when the people being complained against occupy powerful positions?
- What should be the composition of the body? Who should appoint members?
- Should the Prime Minister be exempt from its purview?
- Should prior permission from the Speaker or the Chairman of the House be required to initiate inquiry against Ministers/ MPs?
What do you think? Write in with your comments. Notes:  Report of the Second Administrative Reforms Commission (ARC), 'Ethics in Governance' (2007)  Additional reading: An interview with the Karnataka Lokayukta
Recently the government released draft rules under the Right to Information Act for consultation before it finalised them. This process of public consultation on draft rules is a welcome step which is not often followed. Many Acts passed by Parliament 'delegate' the power to make rules and regulations to the executive (government and regulatory bodies such as RBI and TRAI). The reason is that these rules may need to be changed at frequent intervals (such as, say specifications on food labels), and may not need the time and expense required for amendment to the Act by Parliament. However, Parliament retains for itself the power to examine these rules. Most Acts passed by Parliament provide that rules framed under them will be laid before the Parliament. Any Member of Parliament may demand a discussion on the rules and a vote to modify or nullify them. In practice, a large number of rules are laid before Parliament, making it very difficult for Parliamentarians to examine them effectively. In the last session of Parliament, more than 1500 documents were laid before Parliament. No discussion on specific rules has taken place in Parliament in the 14th and 15th Lok Sabha (2004-10). Both the Lok Sabha and Rajya Sabha also have Committees on Subordinate Legislation to examine these rules. Out of 1515 rules, regulations, circulars and schemes laid before Lok Sabha between 2008 and 2010, the Committee has examined 44 documents. This amounts to only 3% of the afore-mentioned documents laid before the Lok Sabha. It is important that Parliament oversee the power to make rules that it has delegated to the government. For that, it needs to invest in strengthening the research staff of the committee on subordinate legislation as well as provide research stafff to MPs.
The Justice Srikrishna Committee, which is looking into the feasibility of a separate Telangana State, is expected to submit its report by tomorrow. It might be useful at this point in time to revisit the recommendations of the 1953 States Reorganization Commission (SRC) – the Commission that had first examined the Telangana issue in detail. However, it must be kept in mind that some of those arguments and recommendations may not be applicable today. Background Before independence, Telangana was a part of the Nizam's Hyderabad State and Andhra a part of the erstwhile Madras Province of British India. In 1953, owing to agitation by leaders like Potti Sreeramulu, Telugu-speaking areas were carved out of the Madras Province. This lead to the formation of Andhra Pradesh, the first State formed on the basis of language. Immediately afterward, in 1953, the States Reorganization Commission (SRC) was appointed. SRC was not in favour of an immediate merger of Telangana with Andhra and proposed that a separate State be constituted with a provision for unification after the 1961/ 62 general elections, if a resolution could be passed in the Telangana assembly by 2/3rd majority. However, a 'Gentlemen's agreement' was subsequently signed between the leaders of the two regions and this lead to a merger. The agreement provided for some safeguards for Telangana - for instance, a 'Regional Council' for all round development of Telangana. Thus, a unified Andhra Pradesh was created in 1956. In the years that followed, Telangana continued to see on-and-off protests; major instances of unrest were recorded in 1969 and in the 2000s. The SRC 1953 report The full SRC report can be accessed here. Summarized below are its main arguments and recommendations related to Telangana. Arguments in favour of 'Vishalandhra'
- The merger would bring into existence a large State with ample agricultural land, large water and power potential, and adequate mineral wealth.
- Fewer independent political jurisdictions would help accelerate important projects related to the development of Krishna and Godavari rivers.
- The two regions would complement each other in resources - Telangana was not self-sufficient in food supplies but Andhra was; Andhra did not have coal mines but Telangana did.
- Substantial savings could be realized through elimination of redundant expenditure on general administration.
- Hyderabad could serve as a suitable capital for the entire region.
Arguments in favour of a separate Telangana State
- Andhra had been facing financial problems and had lower per capita revenue than Telangana. Resources raised through land and excise revenues in Telangana were higher.
- Telangana claimed to be progressive in administration and hence did not foresee any benefits from a merger. In addition, people feared that the region might not receive adequate development focus in a large 'Vishalandhra'.
- Telangana did not wish to lose its independent rights - for instance, the rights to utilization of waters of Krishna and Godavari.
- The educationally backward people of Telangana feared losing out to people from the more developed coastal regions, especially in matters of employment.
SRC recommendations The Commission agreed that there were significant advantages in the formation of 'Vishalandhra'. However, it noted that while opinion in Andhra was overwhelmingly in favour of a larger unit, public opinion in Telangana had still to crystallize. Even though Andhra leaders were willing to provide guarantees ensuring development focus on Telangana, the SRC felt that any guarantee, short of Central Government supervision, could not be effective. In addition, it noted that Andhra, being a relatively new State, was still in the midst of developing policies related to issues like land reform. Thus, a hurried merger could likely create administrative difficulties both for both units. The SRC thus recommended the creation of a separate Telangana State with provision for unification after the 1961/62 general elections.
In a recent case, the Supreme Court directed the appropriate government to enact a law by June 2011. The case, Gainda Ram & Ors. V. MCD and Ors., concerned the legal framework for regulating hawking in Delhi. The judgement lays out the background to this case by stating that the regulation of hawking in Delhi had been proceeding under directions issued by the Supreme Court in previous cases, and was being implemented by municipal authorities such as the New Delhi Municipal Corporation (NDMC). The NDMC and the MCD have also framed schemes to regulate hawkers as per a policy of the government framed in 2004. However, since these schemes were not laid before Parliament, the Court held that these schemes cannot be called ‘law’ or drafted under the authority of any law. The Court also stated that there is an urgent need to enact a legislation to regulate hawking, and the rights of street vendors. It referred to a Bill which had been framed by the government, and stated that since the government has already taken the first step in the legislative process by drafting a Bill, the legislative process should be completed. On the basis of this, and other reasons, it directed the government to enact a law by June 2011. This judgement raises three issues:
- The government is not the law making body in India. Enacting a law is the function of Parliament and state legislatures.
- Even if the Court were to address the correct authority, Courts in India have no authority to direct the legislature to frame a law, let alone specify a time-period. This may be said to violate the basic principle of “separation of powers” which states that the executive, legislature and judiciary should function independently of each other. Under the Indian Constitution, the Supreme Court and the High Courts have the power to protect fundamental rights and to interpret law. The Constitution does not give power to Courts to direct the framing of a law.
- Persons can be held in contempt of court for not following its directions. In this case, it is not clear who would be held in contempt for not enacting a law by June 2011. The Supreme Court can either hold the Speaker of the Parliament in contempt for not enacting a law by the specified date (it is uncertain whether the Court has this power since no such past instance has arisen). Or it can hold the concerned government official in contempt for not enacting the law within the time period specified (the government in this case, having no power to enact a law).
 Decided on October 8, 2010