- Death sentence in India
- Aadi Mahotsav 2024
- Self-reporting of mental disorders
- Employees’ Provident Fund Organisation
- The 17th Lok Sabha ends
- Judicial Interpretation of defection
Death Sentence in India
As per the latest reports, only one death sentence was confirmed by a High Court in 2023, marking the lowest rate by the appellate courts since 2000.
- Over 120 death sentences were imposed by trial courts and 561 prisoners are under the sentence of death.
- However the year 2023 marked the highest number of prisoners on death row in nearly two decades.
GS-II: Polity and Constitution (Judiciary, Important Judgements)
Dimensions of the Article:
- What is Death Penalty/Capital Punishment?
- Capital Punishment in India
- Bachan Singh vs. State of Punjab (1980) judgement on Capital Punishment
- How capital punishment goes against the Principle of Natural justice?
- Bringing up Collective conscience of society
- What is Collective Conscience of Society?
- J.S. Verma Committee and A P Shah Committee
What is Death Penalty/Capital Punishment?
- Capital punishment, also called the death penalty, is the execution of an offender sentenced to death after conviction by a court of law of a criminal offence.
- It is the highest penalty awardable to an accused.
- Generally, it is awarded in extremely severe cases of murder, rapes, treason etc.
Arguments in Favour of Death Penalty
- Arguments along the lines of “Retribution” state that real justice requires people to suffer for their wrongdoing and to suffer in a way appropriate for the crime. One of the key principles of retribution is that people should get what they deserve in proportion to the severity of their crime.
- Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
- It is often argued that the death penalty provides closure for victims’ families.
- There are many examples of persons condemned to death taking the opportunity of the time before execution to repent, express remorse, and very often experience profound spiritual rehabilitation.
Arguments Against Death Penalty
- The statistical evidence doesn’t confirm that deterrence works. Some capital crimes are committed in such an emotional state that the perpetrator did not think about the possible consequences. Death has been prescribed in rape cases since 2013 (Sec. 376A of IPC), still, rapes continue to happen and in fact, the brutality of rapes has increased manifold. This compels one to think of the death penalty is an effective deterrent to crime.
- The most common argument against capital punishment is that sooner or later, innocent people may get killed, because of mistakes or flaws in the justice system. According to Amnesty International – “As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.”
- People who oppose Capital punishment are of the view that retribution is immoral, and it is just a sanitised form of vengeance.
- Death has been abolished as a form of punishment in most of the developed countries. The UN Secretary General’s report on the death penalty presented to the Human Rights Council held that “some 170 States have abolished or introduced a moratorium on the death penalty either in law or in practice, or have suspended executions for more than 10 years”.
- Capital punishment doesn’t rehabilitate the prisoner and return them to society.
Capital Punishment in India
- Prior to the Criminal Procedure (Amendment) Act (Cr PC) of 1955, the death penalty was the rule and life imprisonment an exception in India. Further, the courts were bound to give an explanation for awarding a lighter penalty than death for capital offences.
- After the amendment of 1955 courts were at liberty to grant either death or life imprisonment. As per Section 354 (3) of the Cr PC, 1973 the courts are required to state reasons in writing for awarding the maximum penalty.In concurrence of this, a proposal for the scrapping of the death penalty was rejected by the Law Commission in its 35th report 1967.
- The Indian Penal Code prescribes ‘death’ for offences such as
- Waging war against the Government of India. (Sec. 121);
- Abetting mutiny actually committed (Sec. 132);
- Giving or fabricating false evidence upon which an innocent person suffers death. (Sec. 194);
- Murder (Sec. 302);
- Direct or indirect abetment of sati is punishable with Death penalty under the Commission of Sati (Prevention) Act, 1987.
- Under SC and ST (Prevention of Atrocities Act), 1989 giving false evidence leading to the execution of an innocent member belonging to the SC or ST would attract the death penalty.
- Besides these, rape of a minor below 12 years of age is punishable with death under Protection of Children from Sexual Offences (POCSO) Act, 2012.
- Financing, producing, manufacturing as well as the sale of certain drugs attracts the death penalty for repeat offenders under the Narcotic Drugs and Psychotropic Substances Act, 1985.
- Unlawful Activities (Prevention) Act, 1967; Army, Navy and Air Force Acts also provide the death penalty for certain specified offences committed by members of the armed forces.
Bachan Singh vs. State of Punjab (1980) judgement on Capital Punishment
- The Supreme Court in its 1980 judgment in Bachan Singh v. State of Punjab, where a Constitution bench of the Supreme Court was called upon to decide the constitutional validity of the capital punishment, had laid down the framework for sentencing to death.
- The Supreme court had made it very clear that Capital punishment in India can be given only in rarest of rare cases.
- It required the weighing of aggravating and mitigating circumstances relating to both the circumstances of the offence and the offender, to decide whether a person should be sentenced to death or given life imprisonment.
- According to the Bachan Singh judgment, for a case to be eligible for the death sentence, the aggravating circumstances must outweigh the mitigating circumstances.
- If the alternative punishment of life imprisonment can be “unquestionably foreclosed”, Only then can death penalty be imposed.
- The Bachan Singh judgement recognized the age of the accused as a relevant mitigating circumstance.
- While stating that honour killings fall within the “rarest of the rare” category, Court has recommended the death penalty be extended to those found guilty of committing “honour killings”, which deserve to be a capital crime.
- The Supreme Court also recommended death sentences to be imposed on police officials who commit police brutality in the form of encounter killings.
What is mitigation, and what are mitigating factors?
- A criminal trial has two stages —
- the guilt stage
- the sentencing stage.
- Sentencing happens after the accused has been found guilty of the crime; this is the stage where punishment is determined. Therefore, anything presented or said during sentencing cannot be used to reverse or change the finding of guilt.
- It is a fundamental tenet of criminal law that sentencing must be individualised, i.e, in the process of determining punishment, the judge must take into account individual circumstances of the accused.
- It speaks to a very intuitive sense of justice that all our decisions and actions result from a complex interplay of various factors concerning our lives, and the emphasis is that such interplay is different for each individual.
- The idea of mitigation is to give practical application to considerations of culpability and deservedness that are crucial to the moral idea of punishment.
- Justice would be an incomplete idea if criminal law was incapable of considering an individual in all their complexity and the various factors that contributed to a set of decisions and actions in their lives.
How capital punishment goes against the Principle of Natural justice?
- The first element, ‘protection of society,’ is not served by imposing the death sentence any better than by incarceration. This has been proven time and again as inmates have spent decades on death row, harming no one, but being brutalised by the inhuman punishment meted out to them.
- Second, there are several factors which affect criminal activity and deterrence is only one of them.
- In a UN survey, it was concluded that “capital punishment deters murder to a marginally greater extent than the threat of life imprisonment.”
- It is not just statistics that prove the case against deterrence, so does logic. A reasonable man is deterred not by the gravity of the sentence but by the detectability of the crime.
- Third, the facet of ‘reform and rehabilitation of the criminal’ is immediately nullified by the prospect of capital punishment
- This leaves only the final element — ‘the retributive effect’. Killing should never be carried out based on the primal and emotive desire among human beings for revenge. Revenge is a personalised and emotional form of retribution, which often loses sight of proportionality.
Bringing up Collective conscience of society
- ‘Collective conscience of society’ as a ground to justify death penalty was first used by the Supreme Court in the 1983 judgment of Machhi Singh v. State of Punjab.
- In that case, the court held that when “collective conscience of society is shocked, it will expect the holders of the judicial power centre to inflict death penalty”.
- ‘Collective Conscience of Society’ was also used in 2005 judgment in the Parliament attack case in which it awarded capital punishment to convict, Afzal Guru and 2017 judgment of the Supreme Court in the December 2012 Delhi gang rape case of Mukesh v. State of NCT of Delhi.
What is Collective Conscience of Society?
- Collective consciousness (sometimes collective conscience or conscious) is a fundamental sociological concept that refers to the set of shared beliefs, ideas, attitudes, and knowledge that are common to a social group or society.
- The collective consciousness informs our sense of belonging and identity, and our behavior.
- In general, it does not refer to the specifically moral conscience, but to a shared understanding of social norms.
- However, some experts say “Collective Conscience of Society”’ is an amorphous term, and is not possible to judicially determine what it means.
J.S. Verma Committee and A P Shah Committee
- The Justice Verma Committee, which was formed days after the horrific Nirbhaya gangrape case in Delhi in December 2012 to review criminal law related to sexual assault, batted for enhanced punishment, including imprisoning one for the remainder of hi…
- Justice J S Verma Committee and Law Commission had argued against executions, viewing it as a “regressive step” even in rarest of rare cases, as punishment “cannot be reduced to vengeance”.
- The Justice Verma Committee said, “in the larger interests of society, and having regard to the current thinking in favour of abolition of the death penalty, and also to avoid the argument of any sentencing arbitrariness, we are not inclined to recommend the death penalty”.
- The ‘262nd Report: The Death Penalty’ by the Commission headed by Justice (Retd) A P Shah in 2015 wanted abolition of death penalty for all crimes except terror cases while hoping that the move towards absolute abolition will be “swift and irreversible”.
-Source: Indian Express, the Hindu
Aadi Mahotsav 2024
The president of India, Droupadi Murmu will inaugurate the Aadi Mahotsav 2024, an annual National Tribal Festival on 10th February 2024.
- The event, organised by TRIFED under the aegis of the Ministry of Tribal Affairs.
- It will showcase the rich diversity of India’s tribal heritage till the 18th of this month.
- The festival will feature an expanded showcase with over 300 stalls, offering a varied display of Tribal art, handicrafts, natural produce, and delectable tribal cuisine.
- Around one thousand artisans from across the country will also participate and showcase their performances.
GS II: Polity and Governance
Dimensions of the Article:
- What is “Aadi Mahotsav”?
- Who are Adivasis?
- What is TRIFED?
What is “Aadi Mahotsav”?
- Aadi Mahotsav is a national tribal festival and a joint initiative of Ministry of Tribal Affairs, Government of India & Tribal Cooperative Marketing Development Federation of India (TRIFED).
- The festival showcases traditional art and handicrafts and cultural heritage of the country.
- It is an attempt to familiarise the people with the rich and diverse craft, culture of the tribal communities across the country, in one place.
- Theme: “A Celebration of the Spirit of Tribal Crafts, Culture and Commerce”
Who are Adivasis?
- Adivasis is the collective name used for the many indigenous peoples of India.
- Officially Adivasis are termed ‘scheduled tribes’, but this is a legal and constitutional term, which differs from state to state and area to area, and therefore excludes some groups which might be considered indigenous.
- Adivasis are not a homogeneous group; there are over 200 distinct peoples speaking more than 100 languages and varying greatly in ethnicity and culture. However, there are similarities in their way of life and generally perceived oppressed position within Indian society.
- Adivasis constitute to more than 8% of the Indian Population.
- Adivasis live throughout India but are primarily based in the mountain and hill areas, away from the fertile plains. Little is known of their history, although it appears that many were pushed into the hill areas after the invasions of the Indo-Aryan tribes 3,000 years ago.
What is TRIFED?
- The Tribal Cooperative Marketing Development Federation of India (TRIFED) came into existence in 1987. It is a national-level apex organization functioning under the administrative control of Ministry of Tribal Affairs.
- TRIFED has its Head Office located in New Delhi and has a network of 13 Regional Offices located at various places in the country.
- The basic objective of the TRIFED is to provide good price to the products made or collected from the forest by the tribal peoples.
Objectives of TRIFED
- The ultimate objective of TRIFED is socio-economic development of tribal people in the country by way of marketing development of the tribal products such as metal craft, tribal textiles, pottery, tribal paintings and pottery on which the tribals depends heavily for major portion of their income.
- TRIFED acts as a facilitator and service provider for tribes to sell their product.
- The approach by TRIFED aims to empower tribal people with knowledge, tools and pool of information so that they can undertake their operations in a more systematic and scientific manner.
- It also involves capacity building of the tribal people through sensitization, formation of Self-Help Groups (SHGs) and imparting training to them for undertaking a particular activity.
Functions of TRIFED
- TRIFED mainly undertakes two functions viz. Minor Forest Produce (MFP) development and Retail Marketing and Development.
- If the price of the products fluctuates then TRIFED arranges compensation for the tribes from the Ministry of Agriculture.
- It also assures the tribes for purchasing their products at a particular price, primary processing of products, storage of products and transportation etc.
- It provides information related to fair price markets for the ‘Minor Forest Produce (MFP). Like tribes of all over country sell their products in the trade fair organised at the Pragati Maidan, New Delhi every year.
- It helps in increasing the bargaining power of the tribes to fetch good price of the MFP.
- It provides adequate training to the tribes to make value addition to their products.
-Source: All India Radio
Self-Reporting of Mental Disorders
As per the recent report by the Indian Institute of Technology (IIT) Jodhpur, self-reporting rates for mental health problems were notably low in India.
GS-II: Social Justice (Health related issues, Government Interventions and Policies, Issues arising out of the design and implementation of Government Policies)
Dimensions of the Article:
- Current status of mental illness in India
- Economic burden of mental health
- Highlighted Mental Health Initiatives in India
- Way Forward: Additional measures for India
Current status of mental illness in India:
- Studies show that in order to achieve Universal Health Coverage (UHC), India must address gaps in access and financial protection for individuals with mental disorders.
- The recent trends regarding the reporting of mental disorders in India is concerning.
- The study by researchers from the Indian Institute of Technology (IIT) Jodhpur, revealed that self-reporting rates for mental health problems were notably low.
- These figures are considerably lower than the actual burden of the disease.
- The research is based on the 75th Round National Sample Survey (NSS) 2017-2018.
- NSSO Survey:
- The NSSO survey revealed that the self-reporting of mental illness was less than 1% in India.
- It completely relied on self-reporting by individuals.
- The 2017 National Mental Health Survey (NMHS) by NIMHANS indicated that around 150 million individuals had mental illness that required treatment, in India.
Economic burden of mental health:
Reliance on Private sector:
- The IIT-Jodhpur study has identified a significant out-of-pocket expenses incurred by individuals seeking mental health services.
- This is mainly due to the reliance on the private sector.
- The average out-of-pocket expenditures for both hospitalisation and outpatient care were significantly higher in the private sector than in the public sector.
- For most families in India, there is no State or insurance coverage, hence a large proportion of payments for treatment are out-of-pocket.
- The survey showed that families had to spend nearly Rs 1,000 – Rs 1,500 a month mainly for treatment and travel to access care.
- These hidden and intangible costs are difficult to monetise and add to the burden of economically weaker sections.
- It also revealed that that individuals with higher incomes were 1.73 times more inclined to report health problems compared to those with lower incomes.
- This indicates the presence of a socio-economic divide.
- The NMHS revealed that the economic burden was reportedly higher in middle aged individuals, where disability due to mental illness significantly affected their productivity.
- It can have a significant impact on the Indian economy.
- Poverty and disability catalysed by poor access to care and treatment significantly affects the quality of life of persons with mental illness as well as their families.
- Low levels of education and income are closely linked to mental disorders, which in turn contribute to impoverishment.
- Data from the NMHS revealed that mental disorders were significantly higher in households with lower income, poor education and limited employment. It is evident that these individuals have a greater vulnerability to mental disorder.
Highlighted Mental Health Initiatives in India:
National Mental Health Programme (NMHP):
- Initiated in 1982, restructured in 2003.
- Aims to modernize mental health facilities and upgrade psychiatric wings in medical institutions.
- District Mental Health Programme (DMHP) since 1996 focuses on community mental health services in 716 districts.
- Provides outpatient services, counselling, psycho-social interventions, and support for severe mental disorders at primary healthcare level.
National Tele Mental Health Programme:
- Launched in October 2022 to improve access to mental health counselling and care services.
- National Institute of Mental Health and Neuro Sciences (NIMHANS), Bengaluru, coordinates Tele MANAS activities across India.
- 25 States/UTs have established 36 Tele Mental Health and Normalcy Augmentation Systems (MANAS) Cells.
- Handled a total of 63,806 calls on the helpline number.
NIMHANS and iGOT-Diksha Collaboration:
- NIMHANS provides psychosocial support and training through the iGOT-Diksha platform.
- Online training for health workers conducted on the iGOT-Diksha platform.
Ayushman Bharat – HWC Scheme:
- Part of the Ayushman Bharat Programme.
- Aims to provide a wide range of services, including preventive, promotive, curative, rehabilitative, and palliative care.
- Operational guidelines on Mental, Neurological, and substance use disorders (MNS) at Health and Wellness Centres (HWC) under Ayushman Bharat.
Addressing Pandemic-Induced Mental Health Challenges:
- Establishment of a 24/7 helpline for psychosocial support.
- Issuance of guidelines and advisories for various societal groups.
- Advocacy through diverse media platforms to manage stress and anxiety.
Financial Support for Mental Health Institutions:
- District Mental Health Programme receives a fund allocation of Rs. 159.75 Crore for States/UTs under the National Health Mission for 2022-23.
Way Forward: Additional measures for India
- In order to further address mental health issues, India could reduce the treatment gap for mental disorders, increase the number of personnel in the mental health sector, work towards reducing discriminatory attitudes, and devise an integrated approach for detecting, treating, and managing patient needs.
- More counselling facilities, especially in rural areas, with special support for women through the provision of women doctors are needed.
- More telemedicine, telephone-based helpline numbers, and mental health apps could help.
- Communities and families have an important role in this regard and so do community-based programmes.
- School-based programmes on mental health can improve the mental health of children.
- More fund allocation for treatment of mental health, especially to those States in need of funds, could do wonders.
- There needs to be a road map for mental health awareness. This should include the traditional media, government programmes, the education system, industry, and social media.
- Media awareness and government involvement is already happening in India but both can improve.
- It is high time that industry and private sector companies set up counselling facilities.
- The application of big data and crowd sourcing ideas may help us in informed decision-making.
-Source: The Hindu
Employees’ Provident Fund Organisation
The Employees’ Provident Fund Organisation (EPFO) has recommended a higher interest rate of 8.25 per cent for financial year 2023-24.
- This will be the highest rate of interest for EPF subscribers in the last three years.
- The previous highest level of EPF interest rate was at 8.5 per cent in 2019-20.
GS III- Indian Economy
Dimensions of the Article:
- About Employees’ Provident Fund Organisation (EPFO)
- About Employees’ Provident Fund
About Employees’ Provident Fund Organisation (EPFO)
Nodal: Ministry of Labour & Employment
- It is a government organization that manages provident fund and pension accounts of member employees and implements the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952.
- The Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 provides for the institution of provident funds for employees in factories and other establishments.
- It is one of the World’s largest Social Security Organisations in terms of clientele and the volume of financial transactions undertaken.
Employees Pension Scheme (EPS):
- It is a social security scheme that was launched in 1995. It offers pension on disablement, widow pension, and pension for nominees.
- The scheme, provided by EPFO, makes provisions for pensions for the employees in the organized sector after the retirement at the age of 58 years.
- Employees who are members of EPF automatically become members of EPS.
- Both employer and employee contribute 12% of employee’s monthly salary (basic wages plus dearness allowance) to the Employees’ Provident Fund (EPF) scheme.
- EPF scheme is mandatory for employees who draw a basic wage of Rs. 15,000 per month.
- Of the employer’s share of 12 %, 8.33 % is diverted towards the EPS.
- Central Govt. also contributes 1.16% of employees’ monthly salary.
- Maximum service for the calculation of service is 35 years.
- No pensioner can receive more than one EPF Pension.
About Employees’ Provident Fund:
- An Employees’ Provident Fund (EPF) account is mandatory for formal sector workers earning up to ₹15,000 a month in firms with over 20 employees, as a means of ensuring retirement income.
- An amount equivalent to 12% of the basic pay and dearness allowance paid to a worker is deducted as employees’ contribution to their accounts, with an equivalent amount remitted by the employer.
- The EPF members are also allowed to voluntarily deploy more of their savings into the EPF account, an option many choose due to the need to build a larger nest egg for their sunset years and the reasonably healthy tax-free annual returns on the EPF.
-Source: The Hindu
The 17th Lok Sabha ends
The conclusion of the recent Budget session also marks the culmination of the 17th Lok Sabha proceedings.
GS II: Polity and Governance
Dimensions of the Article:
- About the Lok Sabha
- What is the Parliament?
- Important functions of Parliament
About the Lok Sabha:
- It is composed of representatives of people chosen by direct election on the basis of adult suffrage.
- The Constitution of India allows for a maximum of 550 members in the House, with 530 members representing the States and 20 representing the Union Territories.
- At present, the Lok Sabha has 543 seats filled by elected representatives.
- The term of the Lok Sabha, unless dissolved, is five years from the date appointed for its first meeting.
- However, while a proclamation of emergency is in operation, this period may be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case, beyond a period of six months after the proclamation has ceased to operate.
About the Indian Parliament
- The Indian Parliament is the legislative organ of the Union government, consisting of three parts viz, the President, the Council of States (Rajya Sabha/Upper House) and the House of the People (Lok Sabha/Lower House).
- Thus, India has a system of Bicameral Legislature where the Rajya Sabha (RS) represents states and union territories and the Lok Sabha (LS) represents the People of India as a whole.
- The framers of our Constitution relied on the British pattern rather than the American pattern for our Parliament – as the British Parliament consists of the Crown (King or Queen), the House of Lords (Upper House) and the House of Commons (Lower House), whereas in the U.S. the legislature, which is known as Congress, consists of the Senate (Upper House) and the House of Representatives (Lower House) and the President is not an integral part of the legislature.
Functions of Parliament
The Parliament can make laws on all the subjects listed under Union List and the Concurrent List in the 7th Schedule of the Constitution.
The Parliament can also pass laws on items in the State List under the following circumstances:
- When National Emergency is in operation (Article 352)
- For that/those state(s) if any state(s) is/are placed under President’s Rule (Article 356).
- If the Rajya Sabha passes a resolution by ⅔ majority of its members present and voting (Article 249).
- if it is required for the implementation of international agreements or treaties with foreign powers (Article 253).
- If the legislatures of two or more states pass a resolution to the effect that it is desirable to have a parliamentary law on any item listed in the State List, the Parliament can make laws for those states (Article 252).
The Parliament has the power to amend the Constitution of India. Both Houses of the Parliament have equal powers as far as amending the Constitution is concerned.
- The Parliament has the power to alter, decrease or increase the boundaries of states/UTs.
- The Parliament takes part in the election of the President and the Vice President.
Control over the Executive
- As the Executive is responsible to the Legislature (Lok Sabha in the case of India), in a parliamentary form of government – the Legislature’s control over the executive is exercised by:
- The Parliament (Lok Sabha) can remove the Executive out of power by passing a Motion of No-Confidence.
- The Members of the Parliament (Legislators) of both the houses can ask questions to the ministers on their omissions and commissions which will help in exposing any lapses on the part of the government.
- In the Lok Sabha, an Adjournment Motion can be used as an extraordinary tool to draw the attention of the Parliament to any recent issue of urgent public interest.
- The Parliament appoints a Committee on Ministerial Assurances that sees whether the promises made by the ministers to the Parliament are fulfilled or not.
- In the Lok Sabha, a Censure motion can be passed by the opposition to strongly disapprove any policy of the government. (However, unlike in the case of the no-confidence motion, the Council of Ministers need not resign if the censure motion is passed.)
- A Cut Motion can also be used to oppose any demand in the financial bill brought by the government.
- Issues of national and international importance are discussed in the Parliament. The opposition plays an important role in this regard and ensures that the country is aware of alternate viewpoints.
- The Union Budget prepared by the Cabinet is submitted for approval by the Parliament. All proposals to impose taxes should also be approved by the Parliament.
- There are two standing committees (Public Accounts Committee and Estimates Committee) of the Parliament to keep a check on how the executive spends the money granted to it by the legislature. You can also read on parliamentary committees.
- In case of breach of privilege by members of the House, the Parliament has punitive powers to punish them. A breach of privilege is when there is an infringement of any of the privileges enjoyed by the MPs.
- In the parliamentary system, legislative privileges are immune to judicial control.
- The power of the Parliament to punish its members is also generally not subject to judicial review.
- Apart from this the, the Parliament also has the power to impeach the President, the Vice President, the judges of the Supreme Court, High Courts, Auditor-General, etc.
-Source: The Hindu, The Indian Express
Judicial Interpretation of Defection
Recently, the Kerala High Court held that after getting elected by the people through a political party or political alliance, a person cannot change his stand against that political party or alliance without getting a fresh mandate from the electorate.
- The observation was made by the court while dismissing a petition connected with defection in one of the local self-government bodies in Idukki district.
- It said that an elected representative should be the voice of the people of that constituency and cannot go against the will of the electorate and act according to his whims and fancies.
- However, the court notes that this principle may not be applicable in a case where the candidate himself is an independent contestant.
GS-II: Polity and Constitution (Constitutional Provisions, Legislature and Elections, Executive, Separation of Powers)
Dimensions of the Article:
- What is Defection?
- 10th Schedule of the Indian Constitution (Anti-Defection Law)
- When do the Legislators face risk of disqualification?
- Issues with having an Anti-defection law
What is Defection?
- ‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group”.
- 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.
- The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.
10th Schedule of the Indian Constitution (Anti-Defection Law)
- The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act and technically the Tenth Schedule to the Indian Constitution is the anti-defection law in India.
- It is designed to prevent political defections prompted by the lure of office or material benefits or other like considerations.
- 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.
- The law applies to both Parliament and State Assemblies.
When do the Legislators face risk of disqualification?
- Disqualification of a legislator (member of the parliament or legislative assemblies) is possible when the member:
- Gives up his membership of a political party voluntarily
- Votes or abstains from voting in the House, contrary to any direction issued by his political party (Party Whip is an official of a political party who acts as the party’s ‘enforcer’ inside the legislative assembly or house of parliament.)
- Joins any party after being elected as independent candidate
- Joins any political party after 6 months of being nominated as a legislative member
The Supreme Court mandated that in the absence of a formal resignation, the giving up of membership can be determined by the conduct of a legislator, such as publicly expressing opposition to their party or support for another party, engaging in anti-party activities, criticizing the party on public forums on multiple occasions, and attending rallies organised by opposition parties.
- Legislators can change their party without the risk of disqualification to merge with or into another party provided that at least two-thirds of the legislators are in favour of the merger, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
- Earlier, the law allowed parties to be split (this used to allow for legislators to hold their position while actually “defecting” to either of the split parties), but at present, this has been outlawed.
- Any person elected as chairman or speaker can resign from his party, and rejoin the party if he demits that post.
Who takes the decision on Defection?
- 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.
- The Presiding Officer has NO time limit to make his decision
- All proceedings in relation to disqualification under this Schedule are considered to be proceedings in Parliament or the Legislature of a state as is the case.
- 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.
- There is no time limit as per the law within which the Presiding Officers should decide on disqualification for defection.
Issues with having an Anti-defection law
- The principle of the Anti-defection law basically forces members vote based on the decisions taken by the party leadership, and not based on what their constituents would like them to vote for – can be considered as a hindrance to the “functioning of the legislature” in the true sense of the word. It limits a legislator from voting according to his/her own conscience, judgement and electorate’s interests.
- The core role of an MP to examine and decide on a 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.
- It can also be said that this provision goes against the concept of representative democracy.
- In the parliamentary form, the government is accountable daily through questions and motions and can be removed any time it loses the support of the majority of members of the Lok Sabha. In India, this chain of accountability has been broken by making legislators accountable primarily to the political party. Thus, anti-defection law is acting against the concept of parliamentary democracy.
-Source: The Hindu, The Indian Express