Civil establishment of nuclear India & Pakistan absurdly bogged down in anti-defection laws about political parties while their people remain poor. By Hem Raj Jain
27 Jul 2022
This refers to whatever is presently happening in nuclear India & Pakistan in their Provincial Assemblies, Election Commissions, High Courts, Supreme Courts, political parties, State & Central governments, offices of Speakers / Governors / President etc as reported at and including
https://www.livelaw.in/top-stories/supreme-court-agrees-to-list-uddhav-factions-plea-against-eci-proceedings-to-determine-real-shiv-sena-on-august-1-204806 . It leads to an irrefutable conclusion that both nuclear India & Pakistan have predilection of and capability to create a storm in teacup (about anti-defection laws & political parties) while its entire civil establish remains oblivious of its responsibility to eradicate poverty of their majority of population, as explained below:-
(1)- The State apparatus both in India and Pakistan is inherited from British rule in pre-partition India and its political, legislative and judicial practices are mostly the result of this British legacy. This is the reason even court judgements of Supreme Court of India (SCI) are quoted in the proceedings of Supreme Court of Pakistan (SCP).
(2)- It needs to be understood that no legislature can enact laws so full-proof that the judiciary can always implement these by merely going as per the legislation. Rather some addressing is required to make some legislation implementable. This is the reason of the dictum “ a law remains merely statute and doesn’t become law unless RECOGNIZED and IMPLEMENTED by Judiciary”.
(3)- This is precisely the reason the Supreme Court can make necessary addition & alteration in any law including in the interest of complete justice and every civil & judicial authority (which is supposed to work in the aid of the Supreme Court) has to accept it and every court has to implement the laws thus made by the Supreme Court as is the case in India under Article 141, 142 and 144 of the Constitution of India.
(4)- In view of such plenary power of the the SCI and the SCP by this time both the Supreme Courts should have made their position clear about anti-defection laws & political parties which is given below:-
(i)- There is a clear difference between the ‘legislative party’ (consisting of elected representatives the MPs. MLAs etc) and ‘political party’ (which is a body corporate who’s office bearers are elected by the members of the party and such political party is supposed to file annual income tax returns with IT authorities with report to Election Commission). Only such political parties are entitled to issue A & B forms (to its candidates in elections), have election symbols and to nominate & issue whips to ‘legislative party’.
(ii)- Only a ‘political party’ has the right to issue ‘whip’ to the ‘legislative party’ and any whip (about matters in the House including voting in confidence / no-confidence votes, money bill etc) needs to be informed (by ‘political party’ through its authorized whip) to the Speaker of the house. If any member of a ‘legislative party’ defies the whip of a ‘political party’ the Speaker is not to count the votes of such rebellious MPs, MLAs etc.
(iii)- A country may have different laws about rebellion / dissent. In some cases every dissenting MP / MLA (who got his / her A & B form from the parent party) is required to seek fresh election if he / she wants to come again in the House. In some cases some concession is given to dissent as in India where earlier it was one third dissenters who could defect without disqualification, later on this number was increased to two third and now it is not merely two third dissenters but they have to merge in some existing political parties of the house in the interest of keeping the importance & sanctity of the political parties intact [But basic principle remains the same that ‘political party’ has right to issue whip over ‘legislative party’ with consequence if such whip is defied].
(5)- These laws about anti-defection and about the functioning of the political parties are simple and easily understood and can be implemented easily by various authorities including and mainly by Supreme Courts but unfortunately it is neither happening so in India nor in Pakistan. On the contrary in both these nuclear countries substantial amounts of time, energy and resources are unnecessarily being wasted in the legally non-existence disputes over anti-defection laws & political parties.
(6)- What is most unfortunate is that some other institutions of the civilians namely the religions (mainly Hinduism & Islam the religions of majority of people in India and Pakistan), the print & electronic media and human rights commissions of Nation & States (NHRC & SHRC) are also watching this ‘tamasha’ (vulgar drama) passively though they are supposed to stop it and are in a position to stop it (in the interest of diverting the time, energy and resources of India & Pakistan for the benefit of the people).
It is hoped the civil establishment of nuclear India & Pakistan would not get bogged down in unnecessary confusion over anti-defection laws & functioning of political parties and instead would spend the time, energy and resources of nuclear India & Pakistan for improving the condition of the majority of their population which still remains poor.