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Syllabus of Constitutional Law – I
Unit – I: Constitution:
a. Definition and Classification b. Sources of Constitution c. Constitutional Conventions d. Salient features of Indian Constitution e. Rule of Law f. Separation of powers
Unit – II: Distribution of Powers between Center and States
a. Legislative Powers b. Administrative powers c. Financial powers
Relevant Doctrines:
(a) Territorial Nexus (b) Harmonious Construction (c) Pith and Substance (d) Repugnancy
Unit—III Constitutional Organs
a. Parliament b. Parliamentary Sovereignty c. Parliamentary Privileges d. Anti Defection Law e. Executive Power f. Collective Responsibility of Cabinet g. Judiciary – Jurisdiction of Supreme Court and High Courts h. Independence of Judiciary i. Public Interest litigation j. Power of Judicial Review k. Doctrine of Political question
Unit – IV Emergency Provisions
Amendment of Constitution
Doctrine of Basic Structure.
Subject: Constitutional Law –I Paper Code: 205
Brief notes on the subject of Constitutional Law-I
Dr.Lellala.Vishwanadham.
Unit – I Constitution
a) Definition and Classification, b) Sources of Constitution, c) Constitutional Conventions, d) Salient features of Indian Constitution, e) Rule of Law, f) Separation of powers.
Summary:
Definition
Constitution means a document having a special legal sanctity which sets out the frame-work and the principal functions of the organs of the Government of a State and declares the principles governing the operation of those organs.
The term constitutional law has been defined by many writers. Hibbert defines Constitutional Law as “the body of rules governing the relation between the sovereign and his subjects and the different parts of the sovereign body”.
According to Dicey: “Constitutional law includes all rules which directly or indirectly affect the distribution or exercise of the sovereign power of the State. Hence it includes all rules which define the members of the sovereign power; all rules which regulate the relation of such members to each other or which determine the mode in which the sovereign power or the members thereof exercise their authority”.
(1) The framers of the Indian Constitution have gained experience from the working of all the known constitutions of the world. They were aware of the difficulties faced in the working of these constitutions. This was the reason that they sought to incorporate good provisions of those constitutions in order to avoid defects and loopholes that might come in future in the working of the Indian Constitution.
The framers of the Indian Constitution framed, the most important chapter of the Fundamental Rights on the model of the American Constitution, and adopted the parliamentary system of government from the United Kingdom; they have taken the idea of the directive principles of state policy from the Constitution of Ireland, and added elaborate provisions relating to Emergency in the light of the Constitution of the German Reich and the Government of India act, 1935.
(2) The Indian Constitution lays down the structure not only of the Central Government but also of the States. The American Constitution leaves the states to draw up their own constitutions. (3) The vastnesses of the country and peculiar problems relating to the language have added to the bulk of the constitution.
Establishment of a Sovereign, Socialist, Secular, Democratic Republic:
The Preamble of the Constitution declares that India to be a Sovereign, Socialist, Secular, Democratic Republic. The word ‘Sovereign’ emphasizes that India is no more dependent upon any outside authority. It means that both internally and externally India is sovereign.
The term ‘Socialist’ has been inserted in the Preamble by the Constitution 42nd Amendment act, 1976. The word ‘Socialism’ is used in democratic as well as socialistic Constitutions.
The term ’Secularism’ means a State which has no religion of its own as recognized religion of state. It treats all religions equally. In a secular State the State regulates the relation between man and man. It is not concerned with the relation of man and God.
The term ‘Democratic’ indicates that the Constitution has established a form of Government which gets its authority from the will of the people. The rulers are elected by the people and are responsible to them. Justice, Liberty, Equality and Fraternity which are essential characteristics of a democracy are declared in the preamble of the Constitution as the very objectives of the Constitution. The Preamble to the Constitution declares that the Constitution of India is adopted and enacted by the people of India and they are the ultimate master of the Republic. Thus the real power is in hands of the people of India, both in the Union and in the States.
The term ‘Republic’ signifies that there shall be an elected head of the State who will be the chief executive head. The President of India, unlike the British King, is not a hereditary monarch but an elected person chosen for a limited period. It is an essential ingredient of a Republic.
- Parliamentary form of Government:
The Constitution of India establishes a parliamentary form of Government both at the Centre and the States. The framers of the Constitution preferred the parliamentary system of government mainly for two reasons—(1) the system was already in existence in India and people were well acquainted with it, (2) it provides for accountability of ministers to the Legislature.
- Unique blend of rigidity and flexibility:
It has been the nature of the amending process itself in federations which had led political scientists to classify federal Constitution as rigid. A rigid Constitution is one which requires a special method of amendment of any of its provisions while in flexible Constitution any of its provisions can be amended by ordinary legislative process. A written Constitution is generally said to be rigid. The Indian Constitution, though written, is sufficiently flexible.
- Fundamental Rights:
These rights are prohibitions against the State. The state cannot make a law which takes away or abridges any of the rights of the citizens guaranteed in the part III of the Constitution. If it passes such a law it may be declared unconstitutional by the courts. But mere declaration of certain Fundamental Rights will be of no use if there is no machinery for their enforcement.
- Directive Principles of State Policy:
The directive Principles of State Policy contained in part IV of the Constitution set out the aims and objectives to be taken up by the States in the governance of the country.
- A Federation with strong centralizing tendency:
The most remarkable feature of the Indian Constitution is that being a federal Constitution it acquires a unitary character during the time of emergency. During the proclamation of emergency the normal distribution of powers between the centre and the States undergoes a vital change. The Union Parliament is empowered to legislate on any subjects mentioned in State List. The Central Government is empowered to give directions to States as to the manner in which it should exercise its executive powers.
RULE OF LAW:
Adjustment of law to the social needs is a continuing process. Law must always be
responsive to the social development. This continuing process requires watchful legislature and alert
judiciary. However, certain care and caution regarding the adjustment of law to social change
should be observed. “The increasing use of device of legislation in modem societies and the general
orientation of nearly all start and elites in favor of change and popular elections in democratic
countries as also the decreasingly conservative attitudes of the lawmen including judges, provide
rather simple ways of adjusting the law to social change. The problem today, as one writer sees it,
is not as much of preventing lag of law behind social needs and development as of preserving legal
security which is endangered by rapid changes in the law. “This is the interesting problem of the lag of
society after changes in the law, which is a more novel problem, both from the theoretical and the
practical point of view”. “The problem one has to grapple with today appears to be one arising out
of the tension between the ideology of rule of law and the need for recognition of law as a means of
social action. Law shapes various social institutions, which in turn have direct impact on society, i.e.,
compulsory education system, prohibition of polygamy etc. It has indirect impact on social change
as where a new patent law calls forth inventions and further changes in technological institutions.
Law may set up new public bodies and an authority, which is turn bring about significant social and
economic changes”
The guarantee of equality before the law is an aspect of what Dicey calls the rule of law in England.
It means that no man is above the law and that every person, whatever be his rank. Dicey gave three
meanings of the Rule of Law those are: 1) Absence of Arbitrary power or Supremacy of the, 2) Equality
before the law, and, 3) The Constitution is the result of the ordinary law of the land.
The first and the second aspects apply to Indian system but the third aspect of the Dicey’s rule of
law does not apply to Indian system as the source of rights of individuals is the Constitution of India. The
rule of law imposes a duty upon the State to take special measure to prevent and punish brutality by
police methodology to a federal Government. The supreme Constitution is essential if The Indian
Constitution possesses all the essential characteristics of a federal Constitution. The Constitution
establishes a dual polity, a system of double Government with the Central Government at one level and
the State Government at the other. There is a division of powers between the central and the State
Government
Rule of Law under Constitution of India:
Dicey’s rule of law has been adopted and incorporated in the Constitution of India. The Preamble
itself enunciates the ideals of Justice, Liberty and Equality. In part III of the Constitution these concepts
are enshrined as Fundamental Rights and are made enforceable. The Constitution is supreme and all the
three organs of the Government, namely, Legislature, Executive and Judiciary are subordinate to and
have to act in consonance with the Constitution. The doctrine of judicial review is embodied in the
Constitution and the subjects can approach High Courts and the Supreme Court for the enforcement of
Fundamental Rights guaranteed under the Constitution. If the executive or the Government abuses the
power vested in it or if the action is mala fide, the same can be quashed by the ordinary courts of law.
Modern concept of Rule law:
Davis has given seven principal meanings of the term ‘Rule of Law’ :-(1) Law and order; (2) Fixed
rules; (3) Elimination of discretion; (4) Due process of law or fairness; (5) Natural law or observance of
the principles of natural justice; (6) Preference for judges and ordinary courts of law to executive
authorities and administrative tribunals; and (7) Judicial review of administrative actions.
Separation of powers:
(a) Meaning:
It is generally accepted that there are three main categories of governmental functions—(i) Legislative, (ii) Executive, and (iii) Judiciary. According to the theory of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and be exercised by three separate organs of the government. Thus, the Legislature cannot exercise executive or judicial power; the Executive cannot exercise legislative or judicial power and the Judiciary cannot exercise legislative or executive power of the Government.
(b) Historical background:
The doctrine of separation of powers has emerged in several forms at different periods. Its origin is traceable to Plato and Aristotle. In the 16th^ and 17th^ centuries, French philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. But it was Montesquieu who for the first time formulated this doctrine systematically, scientifically and clearly in his book ‘Esprit des Lois’ (The Spirit of the Laws), published in the year 1748.
(c) Montesquieu doctrine:
Unit –II Distribution of powers between Center and States:
Generally, three models are followed in the matter of division of powers in a federation. In the first model, the powers of the Centre are defined and the residuary powers are left to the States. This model is found in America. In the second module, the powers of the federating units or States are defined and the residuary powers are given to the centre. Canada follows this model. And in the third model, the powers of both the governments are clearly laid down. Australia has this model of federation. In India, we follow the combination of both the Canadian and the Australian models.
The Constitution of India divides powers between the Union and the State governments. The Seventh Schedule of the Constitution includes three lists of subjects - the Union List, the State List and the Concurrent List. The Central or Union Government has exclusive power to make laws on the subjects which are mentioned in the Union List. The States have the power to make law on the subjects which are included in the Concurrent List. With regard to the Concurrent List, both the Central and State governments can make laws on the subjects mentioned in the Concurrent List. Finally, the subjects which are not mentioned in the above three lists are called residuary powers and the Union government can make laws on them.
It may be noted here that in making laws on the subjects of the Concurrent list, the Central government has more authority than the State governments. And on the subjects of the State List also the Central government has indirect control. All this shows that though the Indian Constitution has clearly divided powers between the two governments, yet the Central government has been made stronger than the State governments.
We can discuss the division of powers between the two governments in India under three headings, such as, legislative relations, administrative relations and financial relations with reference to the three lists.
a. Legislative powers
The President of India is a component part of the Union Parliament. In theory he possesses extensive legislative powers. He has power to summon and prorogue the Parliament and he can dissolve the Lok Shaba. Article 85 (1), however, imposes a restriction on his power. The President is bound to summon Parliament within six months from the last sitting of the former session. If there is a conflict between the two houses of Parliament over an ordinary Bill he can call a joint sitting of both Houses, to resolve the deadlock (Article 108). At the commencement of each session the President addresses either House of Parliament of a joint session of a Parliament. In his address to joint session of Parliament he outlines the general policy and programme of the Government. His speech is like that of the King in England and is prepared by the Prime Minister. He may send message to either Houses of Parliament (Art. 86).
Every Bill passed by both Houses of Parliament is to be sent to the President for his assent (Article 111). He may give his assent to the Bill, or withhold his assent or in the case of a bill other than a
money-bill, may return it to the House for reconsideration on the line suggested by him. If the bill is again passed by both the houses of the Parliament with or without amendment, he must give his assent to it when it is sent to him for the second time. A bill for the recognition of a new State or alteration of State boundaries can only be introduced in either House of the Parliament after his recommendation (Article3). The State Bills for imposing restrictions on freedom of trade and commerce require his recommendation (Article 304). He nominates 12 members of the Rajya Sabha from among persons having special knowledge or practical experience of Literature, Science, Art and Social Services [Article 80(3)]. He is authorized by the Constitution to nominate two anglo-Indians to the Lok Sabha, if he is of opinion that the anglo-Indians community is not adequately represented in that House (Article 331). The President has to lay before the Parliament the Annual Finance Budget, the report of Auditor-General, the recommendations of the Finance Commission, Report of the Union Public Service Commission, and report of the Special Commission for Scheduled Castes and Scheduled Tribes, the report of the Commission of the Backward Classes and the report of the Special Officer for linguistic minorities
b. Administrative powers
As in legislative maters, in administrative matters also, the Central government has been made more powerful than the States. The Constitution has made it clear that the State governments cannot go against the Central government in administrative matters. The State governments have to work under the supervision and control of the Central government. The States should exercise its executive powers in accordance with the laws made by the Parliament. The Central government can make laws for maintaining good relations between the Centre and the States. It can control the State governments by directing them to take necessary steps for proper running of administration. If the State fails to work properly or according to the Constitution, it can impose President’s rule there under Article 356 and take over its (the State’s) administration. Again, there are some officials of the Central government, working in the States, through which it can have control over the State govern
- Article 257 of the Constitution lays down that the executive authority of every State shall be exercised in such a way that it does not impede or prejudice the exercise of the executive power of the Union.
- There are some functionaries of the Union government who serve the State governments. The Governor of a State is appointed by the President who acts as a central agent in the State. The Chief Justice and the Judges of a High Court are appointed by the President and he can also remove them if a resolution is passed by the Parliament in this regard. The offices of the All India Services are appointed by the Central government but they serve in different States.
The area in which the principle of territorial nexus has been applied most in India is taxation. In State of Bombay Vs R.M.D. Chamarbangwala, a newspaper printed and published at Bangalore had wide circulation in the State of Bombay. Through this news paper the respondent conducted and ran prize competitions for which the entries were received from the State of Bombay through agents and depots established in the State to collect entry forms and fees for being forwarded to the head office at Bangalore. The Bombay Legislature imposed a tax on the business of prize competitions in the state by enacting the Act of 1952 and amending the Bombay Lotteries and prize Competitions and Tax Act, 1948. The respondent contended that he was not bound to pay the said tax on the ground of extra- territoriality. The Supreme Court ruled that when the validity of an act is called in question the first thing for the court to do is to examine as to whether the Act is called in question the first thing for the court to do is to examine as to whether the Act is a law with respect to a topic assigned to the particular legislature which enacted it because under the provisions conferring legislative powers on it such legislature can only make a law for its territory or any part thereof and its laws cannot, in the absence of a territorial nexus, have any extra-territorial operation. For sufficiency of territorial connection, two elements were considered by the court, namely, (1) the connection must be real and not illusory, and (2) the liability sought to be imposed must be pertinent to that connection. It was held that all the activities which the competitor was ordinarily expected to undertake took place in the State of Bombay and there existed a sufficient territorial nexus to enable the Bombay Legislature to tax the respondent who was residing outside the state.
Some other example of cases:-
- Tata Iron and Steel Company Vs. State of Bihar, AIR 1958 SC 452
- State of Bihar vs. Charusila Das, AIR1959 SC 1002.
(b) Harmonious Construction
When two or more provisions of the same statute are repugnant, the court will try to construe the provisions in such a manner, if possible, as to give effect to both by harmonizing them with each other. The court may do so by regarding two or more apparently conflicting provisions as dealing with separate situations or by holding that one provision merely provides for an exception of the general rule contained in the other. The question as to whether separate provisions of the same statute are overlapping or are mutually exclusive may, however, be very difficult to determine. The basis of the principle of harmonious construction probably is that the legislature must not have intended to contradict itself. This principle has been applied in a very large number of cases dealing with interpretation of the Constitution. It can be assumed that when the legislature gives something by one hand it does not take away the same by the other. One provision of an Act does not make another provision of the same Act useless. The legislature cannot be presumed to contradict itself by enacting apparently two conflicting provisions in the same Act.
In State of Bombay v. F.N. Balasara, while deciding upon the constitutionality of the Bombay Prohibition Act, 1949, enacted by the Bombay Legislature, whereby restrictions on production and sale of liquor were put, the Supreme Court observed that the expression possession and sale occurring in entry 31 of List II are to be read without any qualification. Under that entry the State Legislature has the power to prohibit possession, use and sale of intoxicating liquor absolutely. The word import in Entry 19 of List I standing by itself does not include with sale or possession of the article imported into country by a person residing in the territory into which it is imported. There is, therefore, no real conflict between entry 31 of List II and Entry 19 of List I. Consequently, the Act of 1949, in so far as it purports to restrict possession, used and sale of foreign liquor, is not an encroachment on the field assigned to the Federal Legislature.
Some other cases:
- Raj Krishna Vs Binod, AIR 1954 SC 202
- Bengal Immunity Company Vs State of Bihar, AIR 1955 SC 661.
(c) Pith and Substance
: The Doctrine “Pith and Substance” means, that if an enactment substantially falls within the powers conferred by the Constitution upon the legislature by which it was enacted, it does not become invalid merely because it incidentally touches upon subjects within the domain of another legislature as designated by the Constitution. Within their respective spheres, the Union and the State Legislatures are made supreme and they should not encroach into the sphere reserved to the other. If a law passed by one encroaches upon the field assigned to the other the Court will apply the doctrine of ’pith and substance’ to determine whether the Legislature concerned was competent to make it.
If the ‘pith and substance’ of law, i.e., the true object of the legislation or a statute, relates to a matter with the competence of Legislature which enacted it, it should be held to be intra virus even though it might incidentally trench on matters not within the competence of Legislature. In order to ascertain the true character of the legislation one must have regard to the enactment as a whole, to its object and to the scope and effect of its provisions.
The Privy Council applied this doctrine in Profulla Kumar Mukerjee Vs Bank of Khulna, AIR 1947. In this case the validity of the Bengal Money Lenders’ Act, 1946, which limited the amount and the rate of interest recoverable by a money-lender on any loan was challenged on the ground that it was Ultra virus of the Bengal Legislature in so far as it related to ‘Promissory Notes’, a Central subject. The Privy Council held that the Bengal Money-lenders’ Act was in pith and substance a law in respect of money- lending and money-lenders-a State subject, and was valid even though it trenched incidentally on “Promissory note”—a Central subject.
The above rule of repugnancy is, however, subject to the exception provided in clause (2) of this Article. According to clause (2) if a State law with respect to any 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 of that matter, then the state law if it is has been reserved for the assent of the President and has received his assent, shall prevail not withstanding such repugnancy. But it would still be possible for the parliament under the provision to clause (2) to override such a law by subsequently making a law on the same matter. If it makes such a law the State Law would be void to the extent of repugnancy with the Union Law.
Unit – III: Constitutional Organs:
a. Parliament:
Parliament of India consists of three organs. The President, the Council of States (the Rajya Sabha) and the House of the People (the Lok Sabha). Though President is not a member of either House of Parliament yet, like the British Crown, he is an integral part of the Parliament and performs certain functions relating to its proceedings. The President of America is not an integral part of the Legislature. In India, the President summons the two Houses of Parliament, dissolves the House of People and gives assent of Bills.
It is to be noted that, though the Indian Constitution provides for the parliamentary form of Government but unlike Britain, the Parliament is not supreme under the Indian Constitution. In India, the Constitution is supreme. In England, laws passed by the parliament cannot be declared unconstitutional while the Indian Constitution expressly vests this power in the courts. The Indian Parliament is the creature of the Constitution and derives all its powers from the Constitution. It is not a sovereign body.
b. Parliamentary Sovereignty: What is Sovereignty?
In its popular sense, the term sovereignty means supremacy or the right to demand obedience.
In the British Constitution, the legislative authority alone resides in Parliament while executive authority resides in the crown.
It is to be noted that, though the Indian Constitution provides for the parliamentary form of Government but unlike Britain, the Parliament is not supreme under the Indian Constitution. In India, the Constitution is supreme. In England, laws passed by the parliament cannot be declared unconstitutional while the Indian Constitution expressly vests this power in the courts. The Indian Parliament is the creature of the Constitution and derives all its powers from the Constitution. It is not a sovereign body.
Under the Indian Constitution, Article 53 provides that the executive power of the Indian Union is vested in the President of India. Legislative power resides in Parliament which comprises the President, the Council of States and the House of the People. The Constitution can be amended only when the amending bill after being duly passed as required by article 368, has received the assent of the President.
According to Austin, the sovereign possesses unlimited powers, but experience shows that there is no power on earth which can wield unlimited powers.
It is suggested that sovereignty may be located in the constitution-amending body. However, that cannot be done in India whose Constitution does not prescribe only one procedure for amending the Constitution. Some amendments can be made by Parliament itself without the concurrence of the States. Some amendments mentioned in the Proviso to Article 368 of the Indian Constitution require in addition ratification by the legislatures of one-half of the States. As there is not one constitution-amending body for all purposes, it is not the repository of sovereign power. Moreover, the constitution-amending body functions rarely and it is artificial to ascribe sovereignty to it.
c. Parliamentary Privileges:
Parliamentary Privilege is defined by Sir T.F.May as:
“Some of the peculiar rights enjoyed by each House collectively as a constituent part of the Parliament and by the members of each house individually, without which they could not discharge their functions and which exceed those possessed by other bodies or individuals.
The constitutional provisions regarding privileges of the state Legislature and Parliament are identical. Articles 105 and 194 provide for privileges of the Legislature in India. While Article 105 deals with Parliament Article 194 deals with State Legislatures. The Constitution expressly mentions two privileges (a) freedom of speech in the legislature and (b) right of publication of its proceedings. Prior to the 44th^ Amendment with regard to other privileges Article 105 (3) provided that the powers, privileges and immunities of each House until they were defined by the Parliament shall be those of the House of Commons in England. After the 44th^ Amendment Article 105 now provides that in other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of the 44th^ Amendment Act, 1978.
In another judgment in the case of Rajendra Singh Rana vs. Swami Prasad Maurya and Others, the Supreme Court held that the act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government itself would amount to an act of voluntarily giving up membership of the party on whose ticket the said members had got elected.
The anti-defection law was passed by parliament in 1985. Twenty-five years down the road, it is pertinent to trace the several modifications and to evaluate how well the law has worked.
The 52nd amendment to the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection. A member of parliament or state legislature was deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote. That is, they may not vote on any issue in contravention to the party’s whip. Independent members would be disqualified if they joined a political party. Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.
The law also made a few exceptions. Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post. A party could be merged into another if at least two-thirds of its party legislators voted for the merger. The law initially permitted splitting of parties, but that has now been outlawed.
Experience so far
In the 24 years of this law, complaints have been made against 62 Lok Sabha MPs. Of these, 26 were disqualified. It is pertinent to note that ten of these disqualifications were after the trust vote of July 2008 (over India-US civil nuclear co-operation). Four cases were made against Rajya Sabha MPs (two in 1989 and two in 2008) and all were upheld. In state legislatures, up to 2004, out of 268 complaints, 113 were upheld.
Challenges and Interpretations
The anti-defection law raises a number of questions, several of which have been addressed by the courts and the presiding officers.
Does the law impinge on the right of free speech of the legislators? This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). The court said that “the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct…above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.
What constitutes “voluntarily” resigning from a party? Various judgements and orders indicate that a member who publicly opposes the party or states his support for another party would be deemed to have resigned from his party. News reports may be used as evidence for this purpose.
Can the decision of the presiding officer be challenged in the courts? The law states that the decision is final and not subject to judicial review. The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.
Issues for consideration
Should the law be valid for all votes or only for those that determine the stability of the government (such as the confidence and no-confidence motions)? The main intent of the law was to deter “the evil of political defections” by legislators motivated by lure of office or other similar considerations. However, loss of membership is hardly a penalty in cases ahead of the scheduled time of general elections—as seen last year. It also loses significance if the House is likely to be dissolved. On the other hand, the voting behaviour may be affected even on issues not related to the stability of the government. A member may be unable to express his actual belief or the interests of his constituents. Therefore, a case may be made for restricting the law to confidence and no-confidence motions. The Dinesh Goswami Committee on electoral reforms (1990) recommended this change, while the Law Commission (170th report, 1999) suggested that political parties issue whips only when the government was in danger.
Should the law apply only to pre-poll alliances? The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances. The Law Commission proposed this change with the condition that partners of such alliances inform the Election Commission before the elections.
Should the judgement be made by the presiding officers? Several MPs had raised this issue at the time of passage of the law. The Supreme Court upheld the law in the Kihoto Hollohon judgment. The Goswami Committee, the Election Commission and the Venkatachaliah Commission to Review the Constitution (2002) have recommended that the decision should be made by the president or the governor on the advice of the Election Commission. This would be similar to the process for disqualification on grounds of office of profit.
Should there be any additional penalties on defectors? The Venkatachaliah Commission recommended that defectors should be barred from holding any ministerial or remunerative political office for the remaining term of the House. It also said that the vote of any defector should not be counted in a confidence or no-confidence motion.
There is no ambiguity in the legality of current provisions related to these issues. Any change would require legislative action. There is, however, need for public debate on the working of the anti-defection law.
