1. Marandi issue hangs fire in Jharkhand (Anti-Defection)
Syllabus: Prelims: Polity and Governance | Mains – GS Paper II – Polity and Governance Sub Theme: Split| Merger | Anti-defection | UPSC
Context: Almost seven months after the Babulal Marandi-led Jharkhand Vikas Morcha (Prajatantrik) merged with the BJP in February this year, the Jharkhand Assembly Speaker Rabindra Nath Mahato has not yet taken any decision on granting status of Leader of the Opposition (LoP) to him under the anti-defection law pertaining to 10th Schedule of the Constitution. For the past six months, the Jharkhand Assembly has been without an LoP.
∙ Affects the debate and discussion: The Anti-Defection Law has created a democracy of parties and numbers in India, rather than a democracy of debate and discussion. ∙ It does not make a differentiation between dissent and defection. It curbs the legislator’s right to dissent and freedom of conscience. Thus, ‘it clearly puts party bossism on a pedestral and sanctions tyranny of the party in the name of the party discipline’.
∙ The Anti-Defection Law, in effect, dilutes the separation of powers between the Executive and the Legislature – and centralises power in the hands of the executives. ∙ Stifling of independent voices of legislatures – which negatively
∙ impacts constructive debate over key policy matters.
∙ Weakening of representative democracy – as legislatures are made
∙ primarily accountable to the party rather to people.
▪ National Commission to review the working of the constitution (NCRWC) have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.
▪ Independent authority to deal with disqualification: Hollohan judgment said that tenure of the Speaker is dependent on the continuous support of the majority in the House and therefore, he does not satisfy the requirement of such independent adjudicatory authority.
o Also, his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.
o Thus, the need for an independent authority to deal with the cases of defection.
▪ Promoting the principle of intra-party democracy and limit issuance of whip: 170th Law Commission report underscored the importance of intra-party democracy by arguing that a political party cannot be a dictatorship internally and democratic in its functioning outside.
o Thus, the parties should listen to the opinions of the members and have discussions on the same. This would give the freedom of speech and expression to its members and promote inner-party democracy.
The Constitution (Fifty-second Amendment) Act, 1985
∙ The statement of objects and reasons of Constitution 52nd Amendment highlights that it is necessary to combat the evil of political defection as it is likely to undermine the very foundations of our democracy and the principles which sustain it.
∙ The amendment accordingly provides that
▪ an Elected Member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and
▪ a Nominated Member of Parliament or a State Legislature who is a member of a political party at the time he takes his seat or who becomes a member of a political party within six months after he takes his seat
would be disqualified on the ground of defection if he voluntarily relinquishes his membership of such political party or votes or abstains from voting in such House contrary to any direction of such party or is expelled from such party.
▪ An Independent Member of Parliament or a State Legislature shall also be disqualified if he joins any political party after his election.
▪ A Nominated Member of Parliament or a State Legislature who is not a member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months from the date on which he takes his seat shall be disqualified if he joins any political party after the expiry of the said period of six months.
∙ Para 4 – Splits & Merger – The Amendment also provides for provisions with respect to splits in, and mergers of, political parties. This aspect was further amended by Constitution Ninety-First Amendment.
∙ Para 5 – Exemption – A special provision has been included in the 52nd Constitution Amendment to enable a person who has been elected as the presiding officer of a House to sever his connections with his political party.
∙ As per Paragraph 5 of Tenth Schedule – A person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule –
(a) if he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party; or
(b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office.
∙ Paragraph 6 – The question as to whether a member of a House of Parliament or State Legislature has become subject to the proposed disqualification will be determined by the presiding officer of the House. However, where the question is with reference to the presiding officer himself, it will be decided by a member of the House elected by the House in that behalf.
∙ Based on the Constitution (Fifty-second Amendment) Act, 1985, some provisions of the Constitution was amended and suitable provisions were added to include defection as ground of disqualification for members of Parliament and State Legislatures along with the entire Tenth Schedule.
Decision of Speaker under 10th Schedule
∙ Paragraph 6 of Tenth Schedule refers to decision on questions as to disqualification on ground of defection.
∙ If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or the Speaker of such House and his decision shall be final.
∙ The Supreme Court in Kihota Hollohon v Zachilhu and others upheld the constitutional validity of Tenth Schedule. The Court also held that the decision of the Speaker of Lok Sabha or State Assembly on matters of disqualification will be open to judicial review.
Paragraph 3 – The Constitution (Fifty-second Amendment) Act, 1985
∙ Constitution (Fifty-second Amendment) Act, 1985, provided for Paragraph 3 under Tenth Schedule
∙ Paragraph 3 – Disqualification on ground of defection not to apply in case of split – Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing as faction which has arisen as a result of a split in his original political party and such group consists of not less than one-third of the members of such legislature party –
∙ (a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground – (i) that he has voluntarily given up his membership of his original political party; or (ii) that he has voted or abstained from voting in such House contrary to any
direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and
∙ (b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph.
Amendment Proposed through the Constitution (Ninety-First Amendment) Act, 2003 ∙ The Dinesh Goswami Committee on Electoral Reforms, the Law Commission in its 170th Report on “Reform of Electoral Laws” and the National Commission to Review the Working of the Constitution (NCRWC) – all recommended the deletion of Paragraph 3 under Tenth Schedule regarding exemption from disqualification in case of a split.
∙ Finally, Constitution 91st Amendment omitted Paragraph 3 and also limited the size of council of minister. The 91st Amendment has added Article 75(1A), 75(1B), 164(1A), 164(1B) and 361B to the Indian Constitution.
∙ Article 75(1A) – The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed 15 per cent of the total number of members of the House of the People.
∙ Article 164(1A) – The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed 15 per cent of the total number of members of the Legislative Assembly of that State: Provided that the number of Ministers, including the Chief Minister in a State shall not be less than 12.
Paragraph 2 – Disqualification on ground of defection – (1) – a member of a House belonging to any political party shall be disqualified for being a member of the House— (a) if he has voluntarily given up his membership of such political party.
So, after going through Anti-Defection law in detail, the question which arises are: ❖ what constitutes “voluntarily giving up membership”; and
❖ Whether, MLAs have freedom to express their concerns, which may be at times contrary to party’s opinion.
❖ Whether speaking or showing dissent without voluntarily giving up membership of the party attracts disqualification under Paragraph 2(1)(a) of Tenth Schedule.
- Powers of High Court to decide cases of Anti-Defection under Tenth Schedule A constitutional challenge to the Tenth Schedule was settled by the Supreme Court in Kihoto Hollohan. The principal question before the Supreme Court in the case was whether the powerful role given to the Speaker violated the doctrine of Basic Structure namely the judicial principle that certain basic features of the Constitution cannot be altered by amendments by Parliament, laid down in the landmark judgment in Kesavananda Bharati vs State Of Kerala (1973).
Important Highlights of Kihoto Hollohan v Zachilhu and others
⮚ The majority judgment (3:2) held that the Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the Parliamentary democracy. Clothing of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.
⮚ The Court further held that that the Schedule’s provisions were remedial and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.
⮚ The Court ruled that Speaker/Chairman while deciding cases of anti-defection acts as a Tribunal and accordingly the decision of Speaker/Chairman is subject to judicial review. ⮚ However, judicial review would not cover any stage prior to the making of decision by Speaker/Chairman.
2. An indignity to women
UPSC Syllabus: Prelims: Social Justice | Mains – GS Paper II – Social Justice; GS Paper I – Indian Society
Sub Theme: Marital Rape | IPC – Section 375 | NHFS-4 survey | UPSC
Context: The Chhattisgarh High Court acquitted a man of marital rape by ruling that sexual intercourse between legally wedded man and woman is not rape even if it is by force or against the wishes of the wife
Marital rape refers to the act of sexual intercourse with one’s spouse without the spouse’s consent. Marital rape is not a crime in Indian Jurisprudence. However, there has been growing clamour to Criminalise Marital rape in India.
According to NHFS-4 survey, 5.4% women experienced marital rape in India. Reasons:
∙ Economic independency: lack of economic independence often deters married women to ∙ Lack of awareness: women often do not even realise that they are the victims of marital rape, as sex without consent is taken for granted in the marriage
∙ Patriarchy: Sexual offence is a weapon of male domination and it is manifestation of patriarchy
IPC under Section 375 defines rape as follows:
A man issaid to commit “rape” whohas sexual intercourse with a woman under following circumstances
⮚ Against her will
⮚ without her consent
⮚ With her consent, but the consent has obtained because of
✔ Putting her in the fear of death
✔ When the man knows that he is not her husband but she believes that he is her husband
✔ Unsound mind or intoxication
⮚ With or without consent, when she is under 16 years of age
However, the same section gave an exemption
Exemption: Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape
Arguments in favour of Criminalisation of Marital rape:
∙ Against the individual rights of the married women(Article 14 and 21): AMarried woman should have the same rights over her body as much as an unmarried women does. ∙ Victims of marital rape undergoes same trauma as in case of rape by strangers. Studies show that rape victims, either married or unmarried, undergoes PTSD (post-traumatic stress disorder)
∙ A form of domestic violence: sexual offence against the wife is a form of domestic violence ∙ Inconsistent with other laws and Judgements:
✔ A husband separated from hiswife (though not divorced) may even betried for rape (Section 376B)
✔ Section 377 of IPC penalises carnal intercourse against the order of nature by any man (including husband)
✔ This exemption indirectly admits that wife is a property of Husband, which is in conflict with the opinion given by SC in Joseph Shine v. Union of India (2018)
(The Supreme Court held that the offence of adultery was unconstitutional because it was founded on the principle that a woman is her husband’s property after marriage)
Arguments often given against criminalization of Marital Rape:
∙ Threat to the institution of marriage: Criminalisation of marital rape is often viewed as a threat to the institution of marriage, in which both the spouses have conjugal rights over each other.
However, Marriage as an institution evolved over the period. New forms of marriage emerged like Cohabitation, Live-in, same sex marriages etc. where individual choices are given primacy. Institution of marriage is no more primitive in nature, where conjugal rights took precedence over individual choices
∙ Conjugal rights: Section 19 of the Hindu Marriage Actgives either spouse in a marriage the legal right to “restitution of conjugal rights”
But, recognition of conjugal rights to have sex with spouse does not give a licence to rape
∙ Misuse of law: laws to protect women are often misused just like section 498 A. It is also a challenge to prove the offence
However, Misuse of a law is not a defensive argument to not to enforce it.
3. New initiative in J&K to restore lost glory of Pashmina shawls
UPSC Syllabus: Prelims: Economy | Mains – GS Paper III – Economy
Sub Theme: GI Tag for Pashmina Shawls | Paris Convention | IPR | UPSC
Context: Plans are afoot to re-engage women artisans in critical production process by doubling wages and announcing MSPs for GI-certified products. Individuals are opening hand woven workshops to initiate non-mechanised weaving of Pashmina shawl by women workers along with doubling the wage payments.
Spinning on a traditional Kashmiri charkha allows longer threads of Pashmina wool with fine hair like size, unlike machines, and adds to the softness and warmth of the product.
∙ Directorate of Handicrafts and Handloom, Kashmir, has proposed Minimum Support Price of Rs. 12,000 for GI-certified plain Pashmina hand-spun and hand-woven shawls.
∙ Pashmina Shawls are a fine variant of shawls spun from cashmere wools. A cashmere wool itself is obtained from the Changthangi goat (Capra aegagrus hircus) native to the high plateau of Ladakh.
∙ Known for its soft features, the Pashmina Shawls himself had been a status symbol not just for the wealthy in Indian but even across the world.
∙ In 2019, the Bureau of India Standards (BIS) published an Indian standard for identification, marking and labelling the Pashmina Shawls for its purity.
What is GI Tag?
∙ A GI or Geographical Indication is a name or a sign given to certain products that relate to a specific geographical location or origins like a region, town or country.
∙ Using Geographical Indications may be regarded as a certification that the particular product is produced as per traditional methods, has certain specific qualities, or has a particular reputation because of its geographical origin.
∙ Geographical indications are typically used for wine and spirit drinks, foodstuffs, agricultural products, handicrafts, and industrial products.
∙ GI Tag ensures that none other than those registered as authorized users are allowed to use the popular product name. In order to function as a GI, a sign must identify a product as originating in a given place.
∙ Geographical Indications of Goods are defined as that aspect of industrial property, which refers to the geographical indication referring to a country or to a place situated therein as being the country or place of origin of that product.
∙ Under Articles 1 (2) and 10 of the Paris Convention for the Protection of Industrial Property, geographical indications are covered as an element of IPRs.
∙ Typically, the GI tag conveys an assurance of quality and distinctiveness which is essentially attributable to the fact of its origin in that defined geographical locality, region or country.
∙ They are also covered under Articles 22 to 24 of the TRIPS -Trade-Related Aspects of Intellectual Property Rights Agreement, which was part of the Agreements concluding the Uruguay Round of GATT negotiations.
∙ Promoters of Geographical indications regard them as strong tools for protecting their national property rights. Opponents, however, consider GI as a barrier to trade.
Who accords and regulates Geographical Indications?
Geographical Indications are covered as a component of intellectual property rights (IPRs) under the Paris Convention for the Protection of Industrial Property. At the International level, GI is governed by the World Trade Organisation’s (WTO’s) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In India, Geographical Indications registration is administered by the Geographical Indications of Goods (Registration and Protection) Act, 1999which came into force with effect from September 2003. The first product in India to be accorded with GI tag was Darjeeling tea in the year 2004-05.
Some famous GI tags:
∙ Darjeeling Tea (word & logo)
∙ Gorakhpur Terracotta
∙ Lucknow Zardozi
∙ Telia Rumal
∙ Kancheepuram Silk
∙ Blue Pottery of Jaipur
∙ Solapur Chaddar
∙ Chanderi Sarees
∙ Pokkali Rice
∙ Channapatna Toys & Dolls
∙ Kutch Embroider
∙ Madhubani Paintings
∙ Tirupati Laddu