26 February 2021: The Hindu Editorial Analysis
1) Single party dominance, democracy imperiled.
Those who believe in progressive politics must ensure that winning polls through any means can never be an objective.
GS-2: Salient features of the Representation of People’s Act.
GS-4: accountability and ethical governance; strengthening of ethical and moral values in governance.
- The nation is set to witness a series of elections to several State Assemblies elections normally do not attract too much attention, but as the nation moves inexorably towards single party dominance.
- India, more accustomed to glacial changes in political behavior and attitudes, is today confronting a new phenomenon that the winner seeks to take all at any cost, the outcome of each and every Assembly Election becomes critical to the end objective.
Shadows over elections:
- India is approaching a new ‘gilded’ era. Unfortunately, electoral politics in the country appears to be out of sync with this portrayal.
- Threats to the conduct of orderly elections are increasing, more so in some States than perhaps in others, and must not be underestimated.
- Pressing the stop button is not a viable option as of now, as it is a reflection of the pervasive decline in political attitudes and behaviour in the nation.
- The Violence, money power, and communal attitudes tend to exercise, disproportionately greater influence on the outcome of elections as of now.
- Across India, we are witnessing a near daily ritual of individuals belonging to one political party or the other shifting their allegiance and, while doing so, indulging in a diatribe against the party they exited.
Question arises on democracy:
- The shifting patterns of party alignments are, in turn, converting democratic politics into a kind of charade which could damage the fabric of both electoral and democratic politics.
- Questions do arise as to what kind of polity will emerge as a consequence of all this. Of serious concern is that elections could hereafter become an instrument to traduce democracy.
- With all political debate becoming highly polarised, elections could well degenerate into a ritualistic exercise, without truly reflecting the democratic will of the people. Attributing motives is no panacea for what could well lead to the demise of electoral democracy.
Power though proxy:
- it is only to be anticipated that northern state elections will witness the finessing of a strategy employed successfully previously, including that of encouraging defections of key Opposition members, an incitement to violence, specially of the communal and sectarian kind, selective use of state agencies to build an atmosphere of fear, to gain an unfair advantage, etc.
- In the southern States that will be going to the elections, there could be one significant variant, viz., the objective of achieving power would be through proxy means.
- This is already an issue of unstated and unspoken concern, but the greater fear is that in return for electoral support this time, many more demands would be made, resulting in an acceptance of subalternity, Delhi effectively demolishing all pretence of regional exclusiveness and autonomy.
From Kerala to the Northeast:
- The principal objective of the ruling party at the Centre would be to reduce the Congress into insignificance while seeking to simultaneously reduce the influence exercised by the Left, even as the BJP can hardly hope to capture power here just yet.
- In the Northeast, Assam. In the backdrop of controversial policies such as the Citizenship (Amendment) Act and the National Register of Citizens, which created quite a stir and dented the image and influence of the BJP to some extent,
Battleground West Bengal:
- Almost all the tactics mentioned would be, or are already on display in the State. This is likely to intensify further as elections approach.
- In west Bengal where caste identity has seldom if ever been a factor in elections or otherwise, a manifest attempt is being made to whip up caste frenzy, and rallying slogans ‘Vande Mataram and Jai Sri Ram’ by rival groups are being projected as the battle cry of the Forward versus the Subaltern classes.
- In west Bengal where communal tensions are manifestly evident, the State has been witnessing severe communal violence over many months, some of it as serious, as that seen during Partition.
The danger to democracy:
- The extant circumstances, is that pent-up anger against a distortion of electoral verdicts or confronted with unpredictable results should result in something more serious and dangerous as an open rebellion against participative democracy.
- Electorates are singularly ill-prepared for such eventualities. History is replete with instances of this kind. There is only a thin line which protects democracy from the ravages of its opponents.
- The 19th and 20th centuries provide enough examples of how wittingly, or unwittingly, democracy could become imperilled, leading to unforeseen situations.
- Ensuring that the current status quo is not challenged beyond a significant threshold is critically important for the future of democracy.
- Till March 2018, the single party dominated India's map. It along with its allies controlled 76 per cent of the country's area and over 69 per cent of its population. Single party dominance most has democracy implication with miner opposition.
- All those who believe in progressive politics to ensure that the situation does not get out of hand, and that winning elections through any means can never be an objective.
2) The absurdity of the anti-defection law.
It has reduced legislators to being accountable primarily to the party and failed to preserve the stability of governments.
GS-2: issues and challenges pertaining to the federal structure.
GS-2: Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.
- The Puducherry events (Four Ruling MLAs have resigned) highlight, yet the absurdity of the anti-defection law.
- The several MLAs from the treasury benches resigned, lowering the numbers required for a no-confidence motion to succeed. This formula also use in Madhya Pradesh and Karnataka.
- The anti-defection law introduces (Tenth Schedule, 1985) to combat the “evil of political defections”, and purpose was to preserve the stability of governments, time to review.
The Anti-Defection Law:
- The 52nd Constitutional amendment act 1985, introduce anti-defection law. ‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group”
- The decision on disqualification questions on the ground of defection is referred to the Speaker or the Chairman of the House, and his/her decision is final.
- All proceedings in relation to disqualification under 10th Schedule are considered to be proceedings in Parliament or the Legislature of a state as is the case.
Range of the provision of anti-defection:
- The provision was not limited to confidence motions or money bills, which are quasi-confidence motions. It applies to all votes in the House, on every Bill and every other issue.
- It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government. Because an MP (or MLA) has absolutely no freedom to vote their judgement on any issue.
- They have to blindly follow the direction of the party. This provision goes against the concept of representative democracy.
The roles MP/MLA in democracy and issues in anti-defection act:
- MP/MLA is agents of the voters and is expected to vote according to the wishes and for the benefits of their constituents.
- The duty to their constituents is to exercise their judgment on various issues towards the broader public interest. In this, they deliberate with other MPs and find a reasonable way through complex issues.
- The anti-defection law turns the concept of a representative on its head. It makes the MP neither a delegate of the constituency nor a national legislator but converts them to be just an agent of the party.
A broken chain in India:
- In India, this chain of accountability of MP/MLA has been broken by making legislators accountable primarily to the party.
- This means, anyone from the party has a majority in the legislature which is, by definition, the party forming the government is unable to hold the government to account.
- All legislators have a ready explanation for their voting behaviour: they had to follow the party’s direction. This negates the concept of them having to justify their positions on various issues to the people who elected them to the post.
The Eroding legislatures:
- The consequence of the anti-defection law is the hollowing out of our legislatures.
- If an MP has no freedom to take decisions on policy and legislative proposals, what would be the incentive to put in the effort to understand the different policy choices and their outcomes?
- The core role of an MP to examine and decide on policy, Bills and budgets is side-lined. Instead, the MP becomes just another number to be tallied by the party on any vote that it supports or opposes.
- The anti-defection law not even provide stability and political system has found ways to topple governments.
- The Constitution was amended to ensure that any person disqualified for defecting cannot get a ministerial position unless they are re-elected; the way around this has been to resign rather than vote against the party.
- The Speaker usually from the ruling party has delayed taking a decision on the disqualification, led to strange situations such as members who continue to be part of the main Opposition party becoming Ministers.
The Supreme Court Verdict on anti-defection act:
- The Supreme Court has tried to plug this by ruling that the Speaker has to take the decision in three months, but it is not clear what would happen if a Speaker does not do so.
Onus is on parties:
- If stability of government is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal systems.
- If they attract members on the basis of ideology, and they have systems for people to rise within the party hierarchy on their capabilities there would be a greater exit barrier.
- These characteristics seem absent in many of the political parties, and we have seen a large number of defections despite the anti-defection law.
- The voters may decide to reject the legislator for re-election and that is the core design element of representative democracy. The legislator is accountable to voters, and the government is accountable to legislators.
- If voters believe that they have been betrayed by the defectors, they can vote them out in the next election. The premise that the anti-defection law is needed to punish legislators who betray the mandate given by the voters also seems to be flawed.
- The anti-defection law has been detrimental to the functioning of our legislatures as deliberative bodies which hold the executive to account on behalf of citizens.
- It has turned them into fora to endorse the decision of the government on Bills and budgets. And it has not even done the job of preserving the stability of governments. The Tenth Schedule to the Constitution must be repealed.
3) “Inhibiting free speech”.
Courts shouldn’t pre-empt Assembly inquiries based on limits of legislative competence.
GS-2: Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.
GS-3: Challenges to internal security through communication networks, role of media and social networking sites in internal security challenges, basics of cyber security
- The Delhi Assembly summoned Facebook to depose before its Peace and Harmony Committee, who examining the Delhi riots that took place in February last year.
- It started argument, may have far-reaching implications on federalism, the separation of powers and fundamental rights in India.
The Parliamentary privileges:
- Parliamentary privileges are a set of rights and immunities that are essential for the functioning of Parliament.
- The right to free speech in the House, guaranteed to the Commons since 1689, and the right to call for evidence and witnesses, are central to the role of the legislature.
- In Constitution, both Parliament and State Assemblies were conferred with the same privileges as the Commons. Apart from discussions about judges, no other speech is barred for legislators in the text of the Constitution.
Implications on federalism:
- Federalism imposes an insuperable challenge to the traditional broad reading of parliamentary privilege.
- Unlike the House of Commons, the powers of State Assemblies are more limited. If the State Assembly cannot pass a law on a subject, how can it claim a right to discuss it or call witnesses for that’
- The Legislatures have a separate non-judicial power of inquiry which has been judicially regarded as being inherent to the legislature, expert call the expressive and informative function of the House.
- The Assembly is the voice of the people of a State and their discussions are an expression of popular will.
The separation of powers:
- The legislative lists frequently overlap and courts resolve any conflict by adopting a test of pith and substance of the law in question.
- Like Atomic energy is the exclusive preserve of the Union. Does that mean a State Assembly cannot inquire into the possible ecological implications of a nuclear waste site within the State,
- But how would this apply pre-emptively at the inquiry stage when the discussions may or may not lead to legislation,
- How can the Union and the States cooperate if they are barred from even discussing or taking evidence on issues beyond their limited legislative competence,
- There is the delicate issue of whether the courts can or ought to sit in judgment on the proceedings of State Assemblies determining what can or cannot be discussed based on the courts’ view of the topic.
- No theory of judicial review would justify such a deep dive into the “political thicket” to examine the proceedings of the House, something our Constitution expressly bars.
The experiences of Canada and Australia:
- Canada and Australia both have common law federal jurisdictions, are also instructive.
- The Canadian chronicler Maingot hints about restrictions based on legislative competence but is careful to add that they are self-imposed, not court mandated,
- In Australia, the Privy Council in appeal from the High Court held that “it is hardly possible for a Court to pronounce in advance as to what may and what may not turn out to be relevant to other subjects of inquiry on”.
Recognize free speech:
- In 1399, the Commons recognized free speech in the House as a tradition by reversing the judgment of treason on Sir Thomas Haxey.
- It is this ancient privilege that found its way into our Constitution. It is a landmark of liberty as it allows elected representatives to challenge the most powerful people of the land on behalf of commoners.
- This ancient tradition would be effaced if the court were to appoint itself an arbiter of legislative discussions.
- It is difficult to craft any discernible principle upon which such unprecedented power could be judiciously exercised without inhibiting free speech that is the hallmark of our legislative tradition.
- The Delhi Assembly summoned Facebook is based on, the peculiar character assigned to the Delhi Assembly which has been denuded under the Constitution from legislating on three subjects – land, law and order and police.
- The constitution of India (8th schedule, Entry 39) in State List by which Assemblies can enforce attendance of witnesses for purpose of recording statements.