Arms and the women
Mains: General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.
- The Indian Army is what is called a command-oriented Army. That is, anyone who has to be given further positions up the chain of command has to first be experienced in command at the level of a full Colonel, a unit command. So far, this was denied to women. That is the main issue.
Arguments put forward by the Govt.
- The central government told the SC that “motherhood, childcare, psychological limitations” have a bearing on the employment of women officers in the Army.
- Family separation, career prospects of spouses, education of children, prolonged absence due to pregnancy, motherhood were a greater challenge for women to meet the exigencies of service.
- Physical Standards: Soldiers will be asked to work in difficult terrains, isolated posts and adverse climate conditions. Officers have to lead from the front. They should be in prime physical condition to undertake combat tasks. The Govt. said women were not fit to serve in ground combat roles.
- Army units were a “unique all-male environment”. The presence of women officers would require “moderated behavior”.
- The male troop predominantly comes from a rural background and may not be in a position to accept commands from a female leader.
- The government further said it is also keeping in mind the “greater family demands and danger of them being taken as prisoners of war”.
- Both male and female prisoners are at risk of torture and rape, but misogynistic societies may be more willing to abuse woman prisoners.
Arguments in government affidavit against commanding posts for women in the Army are wrong and discriminatory
- A quick look at the past records reveals, all the arguments put forth against giving women more responsibility have been answered by the armed forces by giving women greater responsibility in uniform — the IAF has allowed women to become fighter pilots, and the Army has sent them to tough UN peacekeeping missions globally.
- The current case in the Supreme Court is not about granting a role to women in combat arms but about the denial of equal opportunity in their existing roles for promotion to higher commands.
- Women officers are already commanding platoons, companies and second in command successfully, with male soldiers accepting orders from them as part of a professional force.
- Now they are being excluded from commanding a unit, only on the basis that they are women. This argument doesn’t hold water.
- A professional force does not discriminate on the basis of gender, it works because of training, norms and culture.
- Denying women, the posts will be an “extremely retrograde step” and “will inflict irreparable injury” to their dignity.
- It breaks gender stereotyping and provides equal opportunities for women in the Army.
- This was a long-fought battle. It will go a long way in ending a prejudice associated with the Army.
- The Army is often seen as the preserve of men, but enough women have fought heroic battles to bust that myth, from Rani of Jhansi in the past to Squadron Leader Minty Agarwal of the Indian Air Force, who in 2019 “was part of the team that guided Wing Commander Abhinandan Varthaman during the Balakot airstrike carried out by the IAF”.
- Today mindsets have changed, young men are more used to seeing women as peers and occupying leading public roles.
- A woman commanding them in combat would not blow their mind, as it might have older generations of army men.
- So far, women make up only 3.89% of the Indian army, 6.7% of the navy and 13.2% of the air force, excluding the various medical services, which indicates there are less women in the armed forces. Gradually the number has to be increased.
- The physical and mental standards for the role must be uniform and gender-neutral, and women and men free to compete for them. A change in the mindset and gender sensitization is the need of the hour.
- Countries like the United States and Israel had allowed women to play a key role in active combat. But in India, the Supreme Court had to forcefully nudge the government to make women’s role in the Army more inclusive.
- A gender barrier may have fallen, but the war against inequity is far from over.
Judicial indiscipline: On Rajasthan political crisis
Mains: General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.
- Congress Chief Whip had submitted a petition to the Speaker in the Rajasthan Assembly listing reasons that could be considered as grounds for disqualifying MLAs in reference to rebel Congress leader Sachin Pilot and 18 dissident Congress
- The reasons ranged from missing out Congress Legislature Party (CLP) meetings, conspiring to topple the elected government in Rajasthan, to hostile conduct and remaining inaccessible.
- The Rajasthan High Court ordered status quo to be maintained on the disqualification notices issued by Assembly Speaker C.P. Joshi to the rebel Congress MLAs.
- The court order has essentially put the disqualification procedure on hold.
- The Supreme Court heard Rajasthan Assembly Speaker C.P. Joshi’s petition challenging the Rajasthan High Court order barring Joshi from conducting disqualification proceedings against Sachin Pilot and 18 other rebel Congress MLAs, and deferred the case. It will be heard on 27th
The 10th Schedule of the Indian Constitution (which talks about the anti-defection law) is designed to prevent political defections prompted by the lure of office or material benefits or other like considerations. The Anti-defection law was passed by Parliament in 1985 and reinforced in 2002.
- The 10th Schedule of the Indian Constitution popularly referred to as the ‘Anti-Defection Law’ was inserted by the 52nd Amendment (1985) to the Constitution.
- ‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group”.
- The anti-defection law was enacted to ensure that a party member does not violate the mandate of the party and in case he does so, he will lose his membership of the House. The law applies to both Parliament and state assemblies.
- The aim of the Anti-Defection Law is to prevent MPs from switching political parties for any personal motive.
10th Schedule – Provisions under Anti-Defection Law
The Tenth Schedule includes the following provisions with regard to the disqualification of MPs and MLAs on the grounds of defection:
Grounds for disqualification:
- If an elected member gives up his membership of a political party voluntarily.
- If he votes or abstains from voting in the House, contrary to any direction issued by his political party.
- If any member who is independently elected joins any party.
- If any nominated member joins any political party after the end of 6 months.
- The decision on disqualification questions on the ground of defection is referred to the Speaker or the Chairman of the House, and his/her decision is final.
- All proceedings in relation to disqualification under this Schedule are considered to be proceedings in Parliament or the Legislature of a state as is the case.
Exceptions under the Anti Defection Law
- In the situation where two-thirds of the legislators of a political party decide to merge into another party, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
- Any person elected as chairman or speaker can resign from his party, and rejoin the party if he demits that post.
- Earlier, the law allowed parties to be split, but at present, this has been outlawed.
- Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
Is the decision of the Presiding Officer subject to judicial review?
- Originally, the Act provided that the presiding officer’s decision was final and could not be questioned in any court of law. But, in Kihoto Hollohan case (1993), the Supreme Court declared this provision as unconstitutional on the ground that it seeks to take away the jurisdiction of the SC and the high courts.
- The court held that while deciding a question under the 10th Schedule, the presiding officer should function as a tribunal. Hence, his/her decision (like that of any other tribunal) was subject to judicial review on the grounds of malafides, perversity, etc. But the court rejected the argument that the vesting of adjudicatory powers in the presiding officer is by itself invalid on the ground of political bias.
- However, it held that there may not be any judicial intervention until the Presiding Officer gives his order. A good example to quote in this respect is from 2015, when the Hyderabad High Court declined to intervene after hearing a petition which alleged that there had been a delay by the Telangana Assembly Speaker in taking action against a member under the anti-defection law.
Is there a time limit within which the Presiding Officer should decide?
- There is no time limit as per the law within which the Presiding Officers should decide on a plea for disqualification. The courts also can intervene only after the Officer has made a decision, and so the only option for the petitioner is to wait until the decision is made.
- There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.
- In a few cases, there have been situations where members who had defected from their political parties continued to be House members, because of the delay in decision-making by the Speaker or Chairman.
- There have also been instances where opposition members have been appointed ministers in the government while still being members of their original political parties in the state legislature.
How have the Courts interpreted the law while deciding on related matters?
- The SC has interpreted different provisions of the law.
- The phrase ‘Voluntarily gives up his membership’ has a wider suggestion than resignation.
- The law says that a member can be disqualified if he ‘voluntarily gives up his membership’. However, the SC has interpreted that without a formal resignation by the member, the giving up of membership can be inferred by his conduct.
- In other judgments, members who have publicly expressed opposition to their party or support for another party were considered as having resigned. Recently, the Chairman of the Upper House of Parliament disqualified two Janata Dal leaders from the house based on the allegation that indulging in anti-party politics, they had “voluntarily” given up their membership of the party (which is not synonymous to resignation as per the SC orders).
Does the anti-defection law affect legislators’ ability to make decisions?
- The anti-defection law aims to maintain a stable government by ensuring that the legislators do not switch sides. However, this law also limits a legislator from voting according to his conscience, judgement and electorate’s interests.
- This kind of a situation hinders the oversight functions of the legislature over the government, by making sure that members vote based on the decisions taken by the party leadership, and not based on what their constituents would like them to vote for.
- Political parties issue directions to MPs on how to vote on most issues, irrespective of the nature of the issue.
- Anti-defection does not provide sufficient incentive to an MP or MLA to examine an issue in depth and ponder over it to participate in the debate.
- The Law breaks the link between the elected legislator and his elector.
- Importantly, several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions).
Several recommendations have come up regarding Anti-Defection:
Dinesh Goswami Committee:
Recommendations include that disqualification should be only for cases such as:
- Member giving up his membership of his political party voluntarily.
- Member voting or abstaining from voting opposed to party directions.
Law Commission 170th Report:
- Delete the exemption in case of splits and mergers.
- Consider the pre-poll electoral fronts as one party under the 10th Schedule.
- Parties should issue whips only on critical situations or votes.
Make the President/Governor the decision-maker with respect to disqualification subject to binding advice from the Election Commission on the lines of disqualifications based on the Representation of Peoples Act’s provisions regarding the Office of Profit.
Regulation of the 10th Schedule along with the correct working directives that adhere to transparency and accountability in a democracy is the need of the hour. However, this provision should also aid stability in the government which would in turn, decrease corruption and steer the focus of the parliamentarians/legislators towards governance.