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Policy & Politics

Making things happen: Get the right man for the right job

Unlike their British counterparts, a number of civil servants are not very articulate, more so when it comes to expressing their opinion to the powers-that-be. They would rather first know the opinion of the political master and then endorse the same view.

Anil Swarup

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When “Yes Minister ” was shown in England it was huge hit and when it arrived in India in its original version and subsequently in its “desi” adaptation, it was a big hit in India as well. Both the original and the “desi” versions were hilarious as they did portray certain delectable and not-sodelectable attributes of a bureaucrat. The original version depicted a British civil servant as witty, intelligent, articulate and, at least ostensibly, competent. On the flip side, he appeared to be supercilious, haughty, indifferent to public needs, derisive and contemptuous of what the political masters had to convey and highly suspicious of the intent behind the directives given by the politician. However, all in all, the British civil servant almost always appeared to be in control. The “desi” adaptation of the serial did away with the subtleties and the presentation was more slapstick to suit the Indian audiences.

A lot of water has flown in the Yamuna since these serials made respective appearances. Hence, one felt the need to take a fresh look at the attributes of a modern-day civil servant. Criminalisation of Politics, politicization of bureaucracy, caste emerging a dominant factor in politics, political instability in the states and all pervasive sense of insecurity is vitiating the environment beyond recognition. All these have impacted the present day civil servant though he may himself be partly responsible for the state of affairs.

It would be wrong to generalize the attributes of a civil servant. In fact, they come in all hues, shapes and sizes and should be left to the judgement of an individual to select some of these attributes and assign it to a particular civil servant. Each civil servant can be seen as a bundle of some of the attributes mentioned below.

In public perception, by and large, a typical bureaucrat is seen as inefficient because he does not perform. Though there are indeed great performers but these performers are, more often than not, part of the invisible lot.

“Dikhayee kam diya karte hain buniyaad ke patthar

Zamin mein dub gaye jo imarat unhip e kayam hai”

Phenomenal work being done by civil servants goes unnoticed and they come to be associated with ‘red tape’ as nothing is perceived to move in government offices. Many believe that most of the civil servants are dishonest. A number of bureaucrats themselves believe that, apart from their own self, the rest of the bureaucracy is corrupt. You now have another breed of ‘honest crusaders’ who believe that all except them are dishonest. They stop just at being honest, as if honesty is an end in itself.

Unlike their British counterparts, a number of civil servants are not very articulate, more so when it comes to expressing their opinion to the powersthat-be. They would rather first know the opinion of the political master and then endorse the same view. There are, however, a number of bureaucrats who are forthright and believe in expressing their opinion on file as well as verbally even if it means a transfer or some other form of humiliation.

Some bureaucrats do behave as if they are not civil servants but the true servant of the ‘master’ they serve. Their commitment to the master and servile behaviour is indeed an embarrassment to the rest of the bureaucracy. But then the ‘master’ expects a similar servility and pliability from other civil servants and when it is not forthcoming, the civil servant is shown the door.

 Haughtiness and supercilious behaviour were attributes of ‘brown sahibs’ but with the total domination of the political master and almost a total annihilation of self respect amongst some of the bureaucrats, these ‘virtues’ are a preserve of only such bureaucrats who appear totally spineless before the powers-that-be but choose to roar and bite spitefully when they interact with the lesser mortals. Their contemptuous derision and occasional megalomaniacal tendencies are seen to be believed. This continues despite the fact that some have them bitten the dust. However, they make hay while the sun shines. Fortunately, such specimens are few and far between though unfortunately they are highly visible giving a bad name to the entire civil service.

There are a large number of civil servants that are extremely competent, decisive, disciplined and helpful. However, when the market demand is for pliable and corrupt, they prefer to remain in hibernation. Some of them even have tremendous sense of humour as one such civil servant presented a book titled “1001 Ways to Humiliate Yourself”. Though, considering the humiliations that are on occasions heaped on the civil servants not toeing the line, one wonders whether there is a scope for some more humiliation.

There is another small set of bureaucrats which makes one doubt the selection process itself. Or, perhaps, the years in the service has led to dissipation of all the related faculties. They find it difficult to hide their incompetence behind the three letters, the I.A.S. However, they do a tremendous disservice to the service as a whole. They become convenient tools to be used by the ‘smarter’ ones to sign on the dotted line as they do not have the capability to question. Thus, you have instances of bureaucrats being brought to replace an inconvenient bureaucrat to sign a report.

Apart from the moversand-shakers, there are those that are withdrawn and reticent, irrespective of the set of circumstances. Perhaps this indifference enables them to lead a blissful existence. Some of them are laid-back to an extent that they remind you of some extinct species. As against these, there are those that are always alert, optimistic and looking for opportunities even in the gloomiest set of circumstances. It is indeed a pleasure interacting with such bureaucrats.

They, therefore, come in all hues, shapes and sizes. It would be extremely difficult to define what a typical civil servant would look like though we tend to draw our own images and look for civil servants who fit those images. It is, however, true that a civil servant is a tool and, therefore, it is essential to employ the right tool. It would be totally wrong to say that the right tools are not available. The key issue is whether we want the right tool for the right job. Performance of the civil servant depends largely on the signals given by the government. It depends upon who is being rewarded. It depends upon whether the performers and those with integrity are seen as ‘victors’ or those who shamelessly display their ‘allegiance’ are displayed on the podium. The choice rests with the decision maker.

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Office. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

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Policy & Politics

INDIAN FEDERAL SYSTEM IN RELATION TO PROPOSAL OF BILL

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INTODUCTION Federalism in India refers to the relationship between union and the state governments of India or the distribution of power between central government and various constituent units of the country. Apart from the terms like quasi-federal (given by prof. KC Wheare) and pseudo-federal (given by Paul H Appleby) SC stated that India is the federation with strong centralizing tendency, mentioned under schedule VII of constitution of India that divides the subjects of legislation into three lists i.e., union, state and concurrent list. The union list (list 1) contains 97 items originally (100 subjects at present) and comprises of the subjects upon which only union government can make laws. State list (list 2) enumerates 66 items originally (61 subjects at present) upon which only state government can make laws. The concurrent list (list 3) is the most squabble provision for the functioning of union and state government as the 47 items originally (52 subjects at present) that are enumerated in this list confers concurrent power that either the union or state can make laws. So now, a fairminded question arises that if both union and state make a law on a particular matter mentioned under the concurrent list then what would be the consequence of that? Whose law will prevail over whom? This contemplates the legislative relation between union and state. 

LEGISLATIVE RELATION BETWEEN UNION & STATE 

Relation between the union and states are mentioned under part XI of the constitution of India that makes a two-way distribution of legislative powersi) With respect to territorial jurisdiction ii) With respect to subject matter of legislation Article 245 (1) confers power to the parliament for making laws to whole or any part of the territory of India and also the state legislature may made laws for whole or any part of the state. Thus, both parliament and state legislature have its own jurisdiction of making laws. 

DOCTRINE OF TERRITORIAL NEXUS 

Article 245 (2) talks about the extra territorial operation and stated that “no law made by the parliament shall be deemed to be invalid on the ground that it would have extra territorial operation.” The theory of territorial nexus shed light on the proviso that if any law made by the parliament which is out of the territorial jurisdiction shall not be invalidated. It was clearly mentioned in Wallace Bros. and Co. Ltd. vs Income Tax Commissioner, Bombay. In this case, a company was registered in England but appointed an agent in Bombay and carried on it’s business through this agent within the territory of India. According to the gross income, income tax authorities were tried to impose the tax but the company averred that the Indian income tax act, 1939 could not be enforced to it as it was concern to the English laws. However, the privy council ratify the levy of tax by exert the doctrine of territorial nexus and explains that it is not indispensable that the object to which law is activated should be tangible within the boundaries of the nation. But there should be a vinculum between the object and state making the law. The supreme court of India also applied the doctrine in State of Bombay vs R.M.D.C. where there was a sufficient nexus between the state of Bombay and the respondent who conducted the competitions in Bombay through the published newspaper having a wide circulation in Bombay due to which the state of Bombay entitled to impose the tax. Another principal constituent of the distribution of legislative power is its subject matter. The subject matter or the cause and object of a legislation dealt with the dual constitutional authority in case of concurrent list specifically. The differentiation of subject matter can not be appropriate in each and every circumstance and hence the interrogation arises by considering the constitutionality of the enactment. To resolve the uncertainty, courts apply various principles of interpretation. 

DOCTRINE OF PITH AND SUBSTANCE 

The doctrine of pith and substance introduced in Canada in a case Cushing vs Dupuy in 1880. Later on, this doctrine also made its way to India and prop up article 246 of the constitution of India. Doctrine of pith and substance is applied when there is a trespass of one legislature’s law over the other. In such cases, this doctrine is used to determine under which head of power a given piece of legislation falls. Pith and substance refer to the deep and pervasive enquiry. It means that in such cases of encroachment, a law should be read as a whole and not in sections, clauses or anyhow and need to check the object of newly formed law by other legislature. If that law is incidentally encroached and the object is in the people’s interest then that will be valid. For instance, in the case of Prafulla Kumar Mukherjee vs bank of Khulna, Bengal money lender act 1946 was stated to be valid by considering the doctrine of pith and substance. In this case, the maximum rate of interest and the maximum amount of interest is fixed which can be recovered from the debtor. The act is in regarding the money lending and money lender which is a state subject was considered as valid according to the pith and substance even though it is incidentally encroached a central subject. If in case of intentional encroachment, the law declared as null and void via the doctrine of repugnancy. 

REPUGNANCY BETWEEN UNION LAW & STATE LAW 

Article 254 (1) provides: “if any provision of a law made by the legislature of a state is repugnant to any provision of a law made by parliament which parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the concurrent list, then, subject to the provisions of clause (2), the law made by parliament, whether passed before or after the law made by the legislature of such state, or, as the case may be, the existing law, shall prevail and the law made by the legislature of the state shall, to the extent of repugnancy, be void.” Article 254 of the Indian constitution talks about the doctrine of repugnancy which arises when there is inconsistency or incompatibility between the central law and the law made by the state legislature and they are contradicting the provisions of each other. In such instances, the first occurrence is of harmoniously construction that is a principle which states to interpret the statute in such a way that neither of them will be nullified but in case they are totally contravening to each other then the doctrine of predominance of union over state follows i.e., the legislation made by union will prevail and state’s legislation will be repugnant. But there is an exception to this i.e., clause 2 of article 254. Article 254 (2) p r o – vides: “where a law made by the legislature of a state with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of an earlier law made by parliament or an existing law with respect to that matter, then, the law so made by the legislature of such state shall, if it has been reserved for the consideration of the president and has received his assent, prevail in that state.” It is clearly mentioned in the aforesaid provision that a state legislation can also prevail in that state if it received the assent of president later on. In Deep Chand vs state of UP, the state government introduced a new legislation i.e., UP transport services act whose provisions are different from the motor vehicle act therefore parliament amended the motor vehicle act in order to make a uniform law. But the court held that both laws are in direct conflict and occupied the same field so the state law was declared as void under article 254 to the extent of repugnancy to the union law whereas in the case of M Karunnanaidi vs uoi, the state law was prevailed as it was not in the direct conflict to the union law, in fact a complimentary act and the court held that the question of repugnancy arises only when two legislations are inconsistent or incompatible within the same field and cannot enact together. 

POWER OF PARLIAMENT TO LEGISLATE ON MATTERS MENTIONED IN STATE LIST 

The Indian Constitution is designed in unique way so as to enable the union more powerful even in making of legislation too. The parliament is empowered to make laws even on the matters mentioned in the state list in two situations stated under article 249 i.e., with respect to national interest and other under article 250 i.e., during emergency. The proclamation of emergency referred in this article must be a proclamation which may be made under article 352. 

CONCLUSION 

Our constitution is one of the very few that describes the relationship between union and state in detail. This centre- state relation derived from 56 articles in total i.e., article 245 to 300 in part XI and XII that differentiate into legislative, administrative and financial relation. Each legislature has their own dimension and sphere but, in few instances, the domain of union will prevail over state and that’s again corroborated evidence of the fact that India is federal with strong centralizing tendency. As Narendra Modi commented, “Federalism ….is no longer the fault line of Centre- state relations but the definition of a new partnership of team India.

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Policy & Politics

Making it happen: Did ‘Make in India’ happen?

Anil Swarup

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With a view to attracting international investment, while making his speech during the World Economic Forum recently, PM Modi announced that this was the “best time to invest in India”.

In the aforementioned context, I had tweeted: “Best way to attract international investment into India is not merely by saying that it is the best time to invest but to demonstrate that it is indeed the best time. Same ‘noises’ were made under ‘Make in India’ campaign”. Did Make in India happen?

Make in India was launched in 2014 with a lot of fanfare. While launching the Make in India initiative, the Prime Minister, Narendra Modi said, “I want to tell the people of the whole world: Come, make in India. Come and manufacture in India. Go and sell in any country of the world, but manufacture here. We have the skill, talent, discipline and the desire to do something. We want to give the world an opportunity that comes to make in India.” This iterates the whole gist of the program.

Did the “whole world” come to manufacture in India?

The main aim of this initiative was to make India a global manufacturing hub by encouraging both multinational as well as domestic companies to manufacture their products within the country. It was declared that in 2013, India’s growth rate had fallen to its lowest level in a decade, thus putting it into the category of “Fragile Five” nations. 

Did India become global manufacturing hub?

The main objectives of the campaign were to:

1. To transform India into a global design and manufacturing hub.

2. To introduce new initiatives for the promotion of foreign direct investment

3. To implement intellectual property rights.

4. To develop the nation’s manufacturing sector.

5. To boost the confidence of investors and manufacturers to build and invest in India.

6. To improve India’s rank on the Ease of Doing Business index.

7. To eliminate the hassles of laws and regulations in the bureaucratic process of business.

8. To promote job creation and innovation in the limits of the country.

9. To make government transparent and accountable in its working.

10. To encourage the avenues of skill development.

11. To improve the global competitiveness of the Indian manufacturing sector.

To promote the sustainability of growth:

1. To increase growth in the manufacturing sector to 12-14% per annum over the medium term.

2. To raise the contribution of the manufacturing sector to 25% of the Gross Domestic Product (GDP) from its current 16%.

3. To create 100 million additional jobs by 2022 in the manufacturing sector.

4. To increase domestic value addition and technological depth in the manufacturing sector.

“Make in India” campaign was launched world-wide at the expense of millions of Rupees. However, there is no formal evaluation available in public domain about the outcomes of this initiative that was launched with so much fanfare.

What needs to be examined is whether the objectives were actually achieved from the available data.

One of the primary objectives of the campaign was to increase growth in the manufacturing sector to 12-14% over the medium term. COVID did have an impact but well before its arrival, the numbers were dismal. In fact, the actual manufacturing growth rate has been much below the targeted one

2016: 2.8%

2017: 4.4%

2018: 4.6%

2019: 3.9%

(Source: Statista 2021)

Poor growth in manufacturing sector got reflected in the overall GDP growth as well:

2016-17: 8.2%

2017-18: 7.2%

2018-19: 6.1%

2019-20: 4.2%

(Source: GoI Data)

It is evident from the above that this particular objective of “Make in India” was missed by a long margin.

There was also an objective of creating 100 million additional jobs by 2022. COVID has made this task extremely difficult. However, even before COVID arrived, the country was facing the worst unemployment crisis ever. Ministry of Labour and Employment used to release the official employment data periodically but it was stopped in 2016 perhaps because it was revealing the ground reality. There have been doubts raised about CMIE data but that is what we have. The CMIE Data shows that for graduates in the age group of 20-24 years, unemployment was 42% in 2017. It rose to 55.1% in 2018 and to 63.4% in 2019. The World Bank data is also pretty damning. Youth Unemployment data has been released by the World Bank for 2019 for 181 countries. India is placed even below the Congo Republic at 23%. Countries like Thailand (4.2%), Philippines (6.7%), China (11.0%) and Indonesia (13.4%) are well ahead.

So, where did “Make in India” go wrong?

First and the foremost is the faulty approach adopted under the Make in India initiative. The primary focus on road-shows proved its undoing. People travelled all over the world conveying to investors to come to India and invest. There were grand announcements and lion became the symbol of Make in India. It was visible in all the Indian embassies abroad. I saw one in Warsaw during my visit to Poland in my capacity as Secretary, Coal.

Climbing ease-of-doing business ladder became the primary objective and all effort was made to “please” the mandarins of the World Bank. It worked well in the beginning as India did apparently climb the ladder and everyone went to town. Whether the business actually became easy is a million-dollar question. The whole process was a dubious one and recently, the World Bank has itself “dumped” this charade of comparing countries on the basis of ease-of-doing business.

There was no effort to engage intensively with the investors in India to ascertain why wasn’t investment happening here and what could possibly be the way forward. The road-show approach never revealed the ground reality as the investors didn’t have the courage to reveal the “truth” in public glare.

No concurrent evaluation of the scheme was done to ascertain what was going wrong to bring about a course correction. In fact, there was apparently never an admission that anything was going wrong. It was all hunky dory.

There were factors beyond “Make in India” that disrupted it. A well-intentioned but poorly implemented demonetization devastated the economy. Similarly, Goods and Services Tax was long overdue and eminently required but launching it without necessary preparatory work, virtually destroyed the small and medium sector. COVID arrived much later but devastated the economy that was yet to recover from earlier blows.

It is evident that the “Make in India” approach did not work. We have to first admit that and then find a new way of moving forward. There are huge lessons to be learnt from sectors like national highways that did very well irrespective of COVID.

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

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Policy & Politics

Don’t thrust learning poverty upon children

Pandemic threatens to jeopardise the future of kids, and their emotional intelligence is likely to be impacted too.

Vijay Darda

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The precious lives lost in the aftermath of atomic bombings of Hiroshima and Nagasaki turned out to be the gravest tragedy in human history and its after-effects were far more painful as those who survived it contracted several dreaded diseases. Their life became miserable. They went through severe trauma and got frustrated with their sufferings and started to think as to what is the use of such a life? Its deleterious effects on the later generations are still visible. While feeling the pain of people during my visit to Japan, my eyes moistened and my heart wept. Will the future of our children follow a similar trajectory after coronavirus?

Since the initial days of the coronavirus epidemic, I have been very anxious, especially about children. I have also been constantly talking to experts and psychologists in the field of education about the ill-effects it can have on the personality of children. Now my concern has exacerbated following the statement of Jaime Saavedra, Global Education Director, World Bank. He has stated that the effect of the epidemic on the education of children is going to be more severe than what was thought. A situation of learning poverty is emerging. Learning poverty means inability to read and understand even a simple sentence by the age of 10 years. In common parlance, we can call it learning or academic poverty.

I have been constantly monitoring the mental state of the children. I have realised that children have suffered the most but how can they express that? The effect varies according to age. Children in KG or primary schools may have a different effect, while those in secondary schools show some different changes. The children of KG and primary schools have started believing that there is nothing called school. And if it is, it is online and at home! Whenever you feel like learning, sit in front of the tablet and do something! It will take time to change their perception. It will not be easy for them to go to school and follow the routine. Though a lot of changes are taking place, I will not call them permanent, and the effects of the epidemic will linger on long after its departure. For example, the children of KG had barely started going to schools when they were closed following the pandemic outbreak. Now these kids are over two years old and when they go to school again everything will be new and adjusting to it won’t be easy for them.

The school has its own environment. Its discipline has a profound effect on shaping the personality. Children have been deprived of it for two years. Everyone is at home but they are all lost in themselves. It is not yet clear how much attention those at home pay towards the children. Some people pay attention, but many parents have become so irritable that they have started venting their ire on the children.

There is a greater risk of personality disorder affecting children under these circumstances. Older children are victims of different problems. In the initial phase of school shutdown, many parents pushed children towards mobiles and computers so that they could keep playing games and not disturb the parents. Many parents didn’t care what else the kids were watching. It is feared that many may also have gotten addicted to porn. Staring at the screen continuously will also harm the eyes of the children. They will have to wear glasses.

Of course, technology should be used and is being utilised in education but technology cannot be the answer to the traditional style of face-to-face learning. When the eyes of the teacher and the children meet, it has a different effect. What other children used to ask inside the class and the conversation that used to take place are missing. This emotional power cannot be gained by learning online. There is no such situation as the emotional bond between the teacher and the children. Therefore, the personality of the children is not taking the desired shape. A few years later, when the situation becomes normal, we will definitely see its ill-effects in some form or the other. Due to the lockdown, children are not able to go to the playground to play games and they are unable to meet friends. Most importantly, there will be a change in emotional intelligence. Let me illustrate the definition of emotional intelligence by citing an example. Whenever there is an accident, a lot of people gather but there are very few people who call an ambulance. Some people just look the other way while some others even crack jokes. This behaviour depends on emotional intelligence. One cannot learn these things sitting at home. It is learnt along with others. The child learns a lot from the feeling of touch. Thus, there has been a huge loss in the field of emotional intelligence in the last two years.

Children in rural areas are worst affected. They have no access to proper internet connection, smartphones and tablets. This lack of electronic resources has alienated children from studies. They are under tremendous pressure that time is running out and they are not able to study. This pressure is impacting them psychologically. Therefore, it is high time the schools reopened all over the country. It is a welcome development that some states have reopened schools or the date of reopening has been announced.

As I said, there have been serious and far-reaching effects on children. If there is going to be a long-term effect, it is necessary that substantive research is conducted on this serious problem and the focus should be on what emotional support is needed to bring the children back to normal. The opinion of psychologists, educationists and other experts should be taken into consideration and corrective steps should be initiated accordingly. The government has to take some extraordinary steps. We are the youngest nation in the world. These children are our assets, strength and future. Let us hope our future is not jeopardised in any way. Stay safe!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

Will the coronavirus pandemic prove as destructive as the atomic bombing of Hiroshima and Nagasaki? The nuclear bombs had killed thousands in the blink of an eye and made lives of the survivors miserable. Its impact can be felt even today. Similarly, the impact of the pandemic is feared to last long too, especially in the field of education. India is facing a grave risk of learning poverty.

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Policy & Politics

IT’S TIME TO REVIEW INDIA’S ANTI-DEFECTION LAW

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INTRODUCTION

When Haryana held its first election in 1967 after the state carved out from Punjab, an independent candidate named Gayalal won the assembly elections. Later he joined the Congress party; in the evening, he joined the United front, and within 9 hrs he joined the Congress again, which ultimately means M.L.A. Gayalal switched his party thrice within 9hrs. This incident gave rise to “Aaya Ram Gaya Ram” politics in our country, and the defection got the new term, “Aaya Ram, Gaya Ram.” Unfortunately, this didn’t end here. Within 15 days, Gayalal again joined the United front. In another notorious event in 1979, Haryana also came into the limelight when Bhajan Lal became CM of the state. The next, year Indira Gandhi came into power in the central government. He joined the Congress party with forty other M.L.A.s. It is worth mentioning here that more than 50 state governments have fallen because of these defections since Independence’s enactment.

These acts of defections had to be curbed to maintain the dignity of the constitutional machinery and assemblies; then, the prime minister of the country, Late Rajeev Gandhi, enacted the 52nd amendment of the Constitution, and the 10th Schedule was added, which defined the word defection and known as Anti-Defection law. Various provisions have been provided by the law, which discusses grounds under which any member of the state legislature or Parliament can be disqualified. In most common forms, defection means jumping from one political party to the other after getting elected.

HISTORICAL EVOLUTION OF LAW

After enacting the Constitution in the year 1950, we had the first general elections in our country in which Congress secured a whopping victory. Still, with time, the political scenario took a turn, and we came across coalition governments in various states. Floor crossing started which led to a vicious cycle of defections and floor crossing. In the late 1960s, most defectors were from Congress. In 1977, the Bhartiya Lok Dal ran 94 turncoat candidates, including 21 from Congress. Many of them migrated back to the Congress once it became clear that Indira Gandhi was set to win the 1980 elections. This period is considered a weak point of Congress in Indian Politics.

With all those defections in this phase, the most dramatic case of the defection in that era was that of Mr. Gaya Lal, who contested state assembly elections as an independent candidate. After results, he switched the parties between Congress and United Front thrice in a day. Ultimately, the president was forced to implement President rule in the state, giving rise to Aaya Ram, Gaya Ram politics in our country.

THE INTERNATIONAL SCENARIO ON ANTI-DEFECTION LAW

Anti-defection law isn’t applicable in India only. It’s rife in various other countries like the People’s Republic of Bangladesh, Kenya, an African country, etc. Article 70th of the People’s Republic of Bangladesh Constitution says a member shall vacate his seat if he resigns from or votes against the directions given by his party. The Speaker refers the dispute to the committee. Section forty of the Kenyan Constitution states that a member United Nations agency that resigns from his party must vacate his seat. The choice is by the Speaker, and therefore the member might consider attractiveness to the state supreme court.

Article forty-six of the Singapore Constitution says a member should vacate his seat if he resigns or is expelled from his party. Article forty-eight states that Parliament decides on any question about the Disqualification of a member. Section forty-seven of the South African Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party-appointed him.

WHAT IS THE ROLE OF PRESIDING OFFICERS IN THE CONTEXT OF ANTI-DEFECTION LAW?

The tenth Schedule provides presiding officers of legislatures with the power to make your mind up cases of defection. However, it’s been noted that because the Speaker relies upon continuous support of the bulk within the House, he might not satisfy the need of associate freelance adjudicating authority regarding the decision of defection.

In the past, adjudication of the Speakers with relation to disqualifications are challenged before courts for being biased and partial. Many knowledgeable committees and commissions, together with the Dinesh Goswami Committee (1998), Commission to Review the Constitution (2002) so the| and also the} Law Commission (2015) have therefore counseled that defection cases should be set by the President or Governor for the center and states severally, World Health Organization shall act on the recommendation of the committee. This can be an equivalent observe that’s followed for deciding queries associated with the Disqualification of legislators on alternative grounds, like holding an associate workplace of profit or being of unsound mind, beneath the Constitution. However, note that the Supreme Court has upheld the availability granting the leader the ability to require these selections on the bottom that,

“The Speakers/Chairmen hold a polar position within the theme of republic and square measure guardians of the rights and privileges of the House. They’re expected to require way reaching selections within the functioning of the republic. Vestiture of power to adjudicate queries beneath the Tenth Schedule in such constitutional functionaries shouldn’t be thought of objectionable.”

JUDICIAL VIEW ON DISQUALIFICATION BY THE SPEAKER FOR DEFECTION

Dr. Koya defied a celebration whip requiring him to be a gift within the House and vote against the Motion of Confidence for the government. He claimed he was too unwell to be a gift within the House. The Speaker over that Dr. Koya abstained from choice by remaining absent, and therefore the proof of the ‘illnesses isn’t decent to conclude that he was thus unwell that he couldn’t be a gift within the House.

Shri Prasad defied a celebration whip requiring him to be a gift within the House. In his defense, he denied that any whip was issued or served. The Speaker commands that visible of the fact that there’s proof to indicate that the whip had been delivered to Shri Prasad’s House, and had been punctually received, it can’t be aforesaid that Shri Prasad had no information of the whip.

The opposition alleged that Shri Bishnoi usually dissented from and criticized the Congress government in public and demanded the govt’s dismissal. In Haryana. The Speaker command that an individual obtaining elective as a candidate of a party also gets elective thanks to the party’s programs. If the person leaves the party, he ought to return before the citizens.

It was alleged that Shri Akhlaque joined the Samajwadi Party in an exceedingly public meeting. It was alleged that at this meeting, Shri Akhlaque had aforesaid that inside, he had invariably been a member of the S.P. The Speaker reasoned that there’s no reason why news clippings and stories within the media would be lying. The Speaker, so command Shri Akhlaque disqualified for having voluntarily given up membership of the B.S.P. The foremost recent case about anti-defection is from the Mysore State assembly wherever B.J.P. is that the ruling party and fourteen members of B.J.P. and five freelance members sent a letter of discontent against the Chief Minister.

A criticism was created against them, and Speaker disqualified them from their membership. The case is unfinished within S.C.

CHALLENGES TO ANTI-DEFECTION LAW

The Constitution (32nd Amendment) Bill 1973 and thus the Constitution (48th Amendment) Bill 1978 had provisions for decision-making by the president and governors of states in connection queries on Disqualification on the ground of defection.

The Constitution (52nd Amendment) Bill 1985 suddenly introduced the provision that queries of Disqualification on the ground of defection shall be determined by chairmen and speakers of the legislative bodies. The intention was to possess speedier assessment processes at a lower place in the Tenth Schedule. This provision was a problem matter of excellent discussion in Parliament once the bill was being passed.

The 91st amendment to the Constitution was enacted in 2003 to tighten the Tenth Schedule’s anti-defection provisions, passed earlier in 1985. This change obligates all those political modification sides — whether or not on a private basis or in groups — to resign their legislative membership. They presently have to be compelled to search for re-election if they defect and cannot continue work by engineering a “split” of the simple fraction of members, or among the pretense of a “continuing split of a party.” The change jointly bars legislators from holding, post-defection, any work of profit. This amendment has therefore created defections concerning insufferable and may be an important breakthrough in cleansing politics. The irony of matters today is that the events have invalidated the vital intent of the dream of Rajiv Gandhi Their area unit instances whereby once the declaration of election results, winning candidates have resigned from their membership of the House additionally due to the party from that they got elective. Instantly, they have joined the party that has formed the govt and have yet again opposed that party, which looks to be a fraud and goes against the spirit of democracy and 52nd constitutional modification. The ingenious human brain unreal innovative ideas to induce resignations and, in effect, created the anti-defection law as a cover to hide their atrocious crime.

This law excluded the jurisdiction of the judiciary from reviewing the choices of Speakers. This half was controlled to be unconstitutional by the Supreme Court, whereas it upheld the remainder of the law. The Supreme Court was unanimous in holding that paragraph seven of the tenth Schedule utterly excluded all courts’ jurisdiction together with the Supreme Court beneath Article 136 and High Courts beneath Articles 226 and 227 in respect of any matter connected with the Disqualification of the member of a House.

The Constitution doesn’t enable the general assembly to limit the powers of the judiciary. ‘The Speakers/Chairmen, whereas effort powers and discharging functions beneath the Tenth Schedule act as assembly adjudicating rights and obligations beneath the Tenth Schedule and their choices therein capability area unit amenable to judicial review,’ Supreme Court same. Consequently, the Supreme Court reviewed and smitten down the order gone by the Speaker of province Assembly to disable two members in violation of the constitutional mandate in paragraph three of the Tenth Schedule to the Constitution.

Suppose we tend to run into the impact of this law. In that case, it curbs the legislators’ freedom of opposing the incorrect policies, dangerous leaders, and anti-people bills projected by the ‘High Command’ in a whimsical and monarchical manner. This law has given extra dictatorial power to the organization to stay the flock along for a complete term.

“Section 2(b) of the Tenth Schedule puts the Member of Parliament into the straight jacket of obedience to the despotic dictates of the party whips that undermines the democratic spirit. It conjointly violates the principle of representative democracy by empowering the party and undermining nonappointive representatives and constituents’ connection.

The anti-defection law makes a mockery of the republic by marginalizing debates because the legislators aren’t allowed to dissent while not disqualified by the House. Disruptions, instead of substantive dialogue, become the sole style of opposition attainable. The parliamentary discussion has thereby become, for the most part, redundant”.

The Tenth Schedule has set down bound norms for keeping the flock of legislators of every party along. Therefore, the ‘whips’ within the hands of legislative party leaders, reducing the Hon’ble leaders and people’s representatives into shepherds and sheep. Because of the political parties’ unreal mechanisms to fail this constitutional legislation, the judiciary competes for a vital role in upholding the lawfulness and morality of the law besides increasing its horizons to curb the most treacherous observation unforeseen political infidelity.

This Tenth Schedule whenever used to enhance the burden of courts. Instead of maintaining standards within the party with effective leadership, the political parties are resorting to litigation, begging the courts to decide the political issues they failed to settle. It is not fair to blame the judiciary for taking the time to determine this tricky question within the framework of the Constitution. Neither the Governor nor the Speaker is bona fide. Their moves are not fair. They desperately try to use Constitutional power to settle political scores and wreak political vengeance. In the process, they do not care about the people’s will in electing a party to power, for whatever reasons that might be.

MERITS AND DEMERITS OF ANTI-DEFECTION LAW

Like every law, anti-defection laws accompany their own deserves and demerits. Looking at the positive aspect, the law aims at providing stability to the government by significant members-only just in case of any party shifts on their parts. Also, anti-defection laws try to induce some way of the members’ loyalty towards their party. This it tries to realize by guaranteeing that the members selected among the party’s name and its support conjointly as a result of the party tell to remain loyal to the party of that he is a member and its policies.

Turning to the downsides, anti-defection laws limit the freedom of speech and expression of the members by preventing them from expressing any opinion in relevant party policies. However, it has been managed in varied judgments that the freedom of speech provided below Article one zero 5 and 194 is not absolute. It’s subject to the provisions of the Constitution, the Tenth Schedule being one in all them. Another demerit of the law is that it reduces the irresponsibility of the government. To the Parliament and the parents by preventing the members of the political parties from changing their parties.

CONCLUSION

The introduction of the Tenth Schedule to the Indian Constitution was in gear toward edge political defections. Though the law has succeeded in associate degree extremely low-cost suggests that but because of the variety of its loopholes, it hasn’t been able to reach the foremost effectiveness it’ll. Through their dishonesty, corrupt politicians have noticed the defects among the law to suit their wishes among absolutely the best suggests that. The following changes among the law might facilitate it to develop to the utmost adequate possible extent:

The power to the lawgiver needs to be reduced so that only those members’ administrative body vote against the party declaration is subject to disqualification associate agreed, not those who vote against the party in an extremely not-so-important matter or a matter that may not core to the party declaration. This might, in an associate degree, extremely suggest that facilitate the members to possess some individual viewpoint on varied issues.

The law ought to expressly launch what it means by the words’ voluntarily jettisoning Membership’, thus avoiding any confusion. The provision with relevancy mergers whereby it exempts members from Disqualification if they defect in large numbers, i.e., two-thirds, ought to be amended to form the reason for defection due to the idea of exemption from Disqualification rather than mere numbers.

Turning to the downsides, anti-defection laws limit the freedom of speech and expression of the members by preventing them from expressing any opinion in relevant party policies. However, it has been managed in varied judgments that the freedom of speech provided below Article one zero 5 and 194 is not absolute. It’s subject to the provisions of the Constitution, the Tenth Schedule being one in all them. Another demerit of the law is that it reduces the irresponsibility of the government. To the Parliament and the parents by preventing the members of the political parties from changing their parties.

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Policy & Politics

Where did the farm laws go wrong?

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The three new agriculture laws implemented by India in September 2020 with little public or legislative debate have piqued the world’s curiosity. The initiatives were portrayed as a gift to farmers by Prime Minister Narendra Modi’s government, but farmers in various Indian states, headed by smallholders in Punjab and Haryana, have refused to accept them.The three laws are:

• The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act,

• The Essential Commodities (Amendment) Act and

• The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act.

The court stated that dozens of rounds of negotiation between the Centre and farmers had yielded no breakthroughs, despite the fact that senior individuals, women, and children among the protestors were exposed to major health risks caused by the cold and COVID-19. It was stated that deaths had already happened, not as a result of violence, but as a result of illness or suicide. The court praised the protesters’ nonviolent character and indicated that it did not intend to stop them.Essentially, in the midst of a pandemic, with a critical vaccination drive underway, the government appears to be employing a two-pronged strategy to break the impasse: reaching out to farmers to bridge the trust deficit in farm laws, and combating disruptive forces that are attempting to take advantage of the situation.

Farmers are concerned that agriculture sector changes would result in the abolition of the minimum support price (MSP) system and the abolition of APMC markets. The government buys farm commodities at a fixed price under the MSP framework. The MSP guarantees that farmers are guaranteed a set price, regardless of supply and demand limits. Farmers have been calling for legislation to ensure that agricultural food is purchased at the MSP. They also urge the government to repeal the Electricity Act modifications.Farmers are concerned that it would lead to the corporatization of agriculture, which will eventually force them out of the industry. They contend that the sale of agricultural produce would be governed by contracts, rendering the MSP regime ineffectual. The law permitted farmers to engage into a direct arrangement with the buyer before to the sowing season and sell their goods at the agreed-upon price at the time of contract signing.

What were the main issues in THE FARMER’S PRODUCE TRADE AND COMMERCE (PROMOTION AND FACILITATION) ACT, 2020 OR THE FPTC ACT as regarded by the farmers?

Though farmers objected to all three agricultural laws, the main issue was this Act, commonly known as the ‘APMC Bypass Bill.’ Cultivators were concerned that its provisions would undermine the APMC mandis.

Sections 3 and 4 of the Act permitted farmers to sell their goods in regions beyond the APMC mandis to purchasers from inside or outside the state. Section 6 barred the collection of any market charge or cess under any state APMC Act or other state law in connection with trading outside the APMC market. Section 14 overruled the contradictory sections of the state APMC laws, while Section 17 enabled the Centre to make regulations for enforcing the law’s provisions.

Farmers were concerned that the new laws would result in insufficient demand for their goods in local marketplaces. They said that moving the produce outside of mandis would be impossible due to a lack of resources. This is why they sell their goods at prices lower than MSP in local marketplaces.

Farmers were also upset with the provisions in Section 8 of the law that stated that a farmer or merchant might approach the Sub-Divisional Magistrate (SDM) to reach an agreement through conciliation procedures. While farmers claim they lack the right to enter SDM offices for conflict resolution, others say this amounts to seizure of judicial authorities.

POSSIBLE ISSUES WITH FARMERS (EMPOWERMENT AND PROTECTION) AGREEMENT OF PRICE ASSURANCE AND FARM SERVICES ACT, 2020

Sections 3-12 of the statute attempted to provide a legal framework for contract farming. Before the planting season, farmers might get into a direct arrangement with a buyer to sell their products at predetermined pricing. It enabled farmers and sponsors to enter into agricultural partnerships. The law, however, made no mention of the MSP that purchasers must provide to farmers.

Though the Centre claimed that the law was intended to liberate farmers by allowing them to sell anywhere, farmers were concerned that it would lead to the corporatisation of agriculture. They were also concerned that the MSP will be eliminated. Critics also claimed that the contract system would expose small and marginal farmers to exploitation by large corporations unless selling prices were continued to be regulated as they were before to the new law’s implementation.

HOW DID THE FARMERS REACT TO THE FARM BILL?

Despite the potential benefits, both parties were unable to reach an agreement on the farm laws, which resulted in their repeal. Farmers who have been protesting at Delhi’s borders and in their states since last year have rejected the Central government’s offers to alter the contentious new agriculture rules. They said that the plan was insufficient and accused the administration of being “insincere,” while also warning the Parliament to step up their protests. Parliament approved these Acts during the monsoon session in 2020. Farmers have long feared that the Centre’s farm reforms will pave the way for the demise of the MSP system, leaving them at the whim of large corporations. However, no resolution was reached, and no date for the next round of discussions was set for the first time. Following the failure of these discussions, the Supreme Court suspended the execution of these farm legislation. Farmers were overjoyed when these rules were removed on November 19, 2021.

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Declaring vaccination mandatory in India: A last resort towards battling Covid-19

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With the spread of novel coronavirus (COVID-19) across the globe, there is hardly any country which has been able to protect its citizens from it. During this unprecedented situation which has persisted more than a year, this pandemic has claimed as many as 3.18 lakh lives in India itself, making the situation abysmal and chaotic in the country. But a silver lining arose on January 03rd, 2021, when the Government of India approved emergency authorization for Covishield and Covaxin for effectively tackling the pandemic situation.

Till date, around 160 crore people have been vaccinated out of which around 4.24 crore have been fully vaccinated. As can be evidently seen, India’s COVID-19 vaccination drive is alarmingly behind schedule, especially when India is facing an unforeseen situation and it is the need of the hour to rustle up the vaccination drive. Indubitably, the government has miserably failed in procuring vaccines leading to an inordinate delay in inoculating people. One of the reasons behind such a delay is an acute shortage of supply of vaccines from the manufacturers. But there is another hidden but known facet which has conspicuously reduced the percentage of vaccinated population despite vaccines being available at local vaccination centers. Suspicions and myths pertaining to vaccines in general are creating mistrust among people, especially for those residing in rural or marginalized areas, who are very skeptical about getting inoculated. Due to such fear and apprehension, people are not registering for vaccination and even after scheduling an appointment, they are not turning up for vaccination at the centers leading to wastage of thousands of doses raising a cause for concern in the entire country.

First and foremost step to be taken by the government is to initiate an awareness drive throughout the country by educating the people residing especially in rural and marginalized areas about the various personal and community health benefits of getting vaccinated. However, in case there is timely and unhindered supply of vaccines and yet people refuse to take it then the government must promulgate laws making vaccination compulsory in the nation. Although, it is not always necessary to go through the trouble of making vaccination compulsory but it should only be kept as a last resort to tackle the problem. It is well within the legislative powers of the State Legislature to enact such a law related to public health and sanitation. (vide Entry 6 List-II of the Seventh Schedule of the Constitution on India). Here, a focus needs to be drawn to a similar step taken by the British Government to make smallpox vaccination compulsory by way of the Vaccination Act of 1892. Another example was laid down by the US Supreme Court which upheld the law made by the State for compulsory vaccination stating that is well with its police power for the protection of public health.

LAWS EMPOWERING THE GOVERNMENT TO MAKE VACCINATION MANDATORY

The Epidemic Disease Act of 1897 contains provisions empowering the government to take whatever measures it deems necessary to prevent the outbreak or spread of an epidemic disease, provided the existing laws are not sufficient to deal with the situation. Moreover, a collective reading of numerous provisions of the National Disaster Management Act of 2005 shows that the Central Government is empowered to constitute a National Disaster Management Authority which can lay down the policies, plans and guidelines for disaster management for ensuring timely and effective response to a disaster. The Central Government has invoked its power under Section 6 (2)(i) of the Disaster Management Act, 2005 directing the State Governments to restrict the movement of people and various other activities in the beginning of the pandemic and those can be applied for the process of vaccination too. Under such laws, the government can formulate policies for compulsory vaccination during the current unprecedented situation in India.

ENFORCING MANDATORY VACCINATION

It is certainly not advisable to impose penal action like imprisonment against an individual who refuses to get inoculated. There are several ways through which the government can enforce mandatory vaccination on such individuals. For instance, it can impose fine on people who refuse vaccination. Another way can be by imposing a reasonable restriction on the movement of an individual within any part of this country since the freedom to move freely within the territory in India is subject to reasonable restrictions as laid down under Article 19(5) of the Constitution of India. Moreover, for the people who are visiting India, vaccination must be compulsory upon failure of which can lead to restricting the use of their passport by the Government by exercising its powers under the Passport Act, 1967. Alternatively, if a person still refuses to get vaccinated upon his arrival in India, he shall be mandatorily kept under 7 days institutional quarantine as per the guidelines for international arrival issued by the Ministry of Health and Family Welfare (MoHFW). Moreover, for foreigners who are not vaccinated, the government can pass an order under Section 3 (2) (e) of the Foreigners Act, 1946. For example, people applying for immigration to the United States need to show their vaccination certificates. Otherwise the applicant must be given those vaccines at the time of medical exam.

PERCEIVED CRITICISMS

Making COVID-19 vaccination mandatory for people can have some serious legal concerns. A person can claim that the legislation making vaccination compulsory is violative of the right to privacy under Article 21 of the Constitution of India. The term privacy has been interpreted in its widest sense so as to restrict the government from infringing it by way of an unfair, unjust and unreasonable laws and regulations. But it is pivotal to argue that the right to privacy is embraced under the right to life and personal liberty which may be restricted according to the procedure established by law. Therefore, the right to privacy can very well be curtailed by the government by way of enacting just, fair and reasonable law which is in interest of public at large (vide K.S Puttaswamy v Union of India). Further in the case of Evara Foundation vs Union of India in the affidavit it was stated that “It is humbly submitted that the direction and guidelines released by Government of India and Ministry of Health and Family Welfare, do not envisage any forcible vaccination without obtaining consent of the concerned individual”.

At this juncture, it is also pertinent to give reference to Hohfeld’s theory of jural relations. As Hohfeld says, if a person has a right, then that right is accompanied by a duty to protect the rights of others. In other words, the people are guaranteed the right to privacy which can be restricted by making the vaccination compulsory for the people refusing to take the vaccination for collective public interest, since COVID-19 will continue to spread if people do not get vaccinated. For instance, if majority of the population in the Country is vaccinated then it will obviously break the chain of the spread of the virus and the positivity rate will come down.

Moreover, there are many developed countries across the world like U.K., Australia, France, Italy, who have made the vaccination mandatory for their citizens despite the fact it is not the last resort but it was the only way to break vicious cycle of waves of the virus. In addition, India is a developing country where the health care system is ineffective to cater the vast number of populations. So, India should also follow the footsteps of the developed countries in order to save the lives of its citizens.

SUMMING UP

In order to achieve herd immunity by vaccinating a large number of people either by way of voluntary vaccination or forced vaccination, equitable distribution of vaccines is a pre-requisite, failure of which can render the former otiose. There is an obligation on part of the government to ensure that there are no obstacles or impediments in providing vaccines all across the nation without any discrimination.

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