In India, police and law and order come under the purview of state governments.[1] Accordingly, each state has its own police force for maintaining law and order and investigating crimes. However, due to financial and other constraints, states have critical gaps in their policing infrastructure.2 Figure 1 shows the expenditure by states on police, as a percentage of their total budget. In 2015-16, Manipur spent the highest proportion of its state budget on police, followed by Punjab and Jammu and Kashmir.
Figure 1: Police Expenditure as a proportion of total state budget
The Ministry of Home Affairs has been supplementing resources of states under the Modernisation of Police Forces (MPF) scheme.[2] The Union Cabinet last week approved the implementation of an umbrella scheme of MPF and has allocated funding of Rs 25,060 crore for the 2017-18 to 2019-20 period.[3] In light of this decision, we present the key features of the scheme and examine other issues related to the police forces.
Modernisation of Police Forces scheme
The MPF scheme was initiated in 1969-70 and has undergone several revisions over the years.2 It was allocated Rs 11,946 crore for the period between 2012-13 to 2016-17, which has now been doubled after last week’s Cabinet approval.[4] Funds from the MPF scheme are typically used for improving police infrastructure through construction of police stations and provision of modern weaponry, surveillance and communication equipment. Upgradation of training infrastructure, police housing and computerisation are also important objectives funded through the scheme.
Following the recommendations of the Fourteenth Finance Commission, to increase the share of central taxes to states, it was decided that the MPF scheme would be delinked from central funding from 2015-16 onwards.[5] States were expected to finance the scheme using their own resources. However, of the recent allocation made by the Cabinet, Rs 18,636 crore will come from the central government and Rs 6,424 crore will come from the states.3 This implies that the centre will fund almost 75% of the scheme.
Underutilisation of Funds
Data from the Bureau of Police Research and Development (BPR&D) shows that funds have not been fully utilised under the MPF scheme. In the year 2015-16, out of a total grant of Rs 9,203 crore that was made available for modernisation, states utilised only Rs 1330 crore (14%).[6]
Figure 2 shows the trend in underutilisation of modernisation funds from 2009-10 to 2015-16. Over this period, there has been a consistent underutilisation of funds by states. On average, states spent 55% of the funds allocated to them, with the highest being 86% utilisation in 2013-14.
Figure 2: Utilisation of funds for modernisation by states (%)
Issues related to police forces
While the MPF scheme seeks to improve police infrastructure, there are a number of structural issues that have been raised by experts over the years related to police forces. We discuss a few of these below.
(i) Overburdened police force
Apart from the core function of maintaining law and order, police personnel carry out various other functions such as traffic management, disaster rescue and removal of encroachments. The Second Administrative Reforms Commission (2007) has noted that these extra obligations lead to overburdening of the police force. It recommended that these functions should be carried out by other government departments or private agencies.[7] Note that as of January 2016, 24 per cent of sanctioned police posts in India were vacant.6 This indicates that police personnel may be overburdened, which may have negative consequences on their efficiency and performance.
(ii) Poor quality of investigation
In 2015, the conviction rate for crimes recorded under the Indian Penal Code, 1860 was only 47%.[9] The Law Commission (2012) observed that one of the reasons for low conviction rates in India is poor quality of investigation by police.[8] The police lack training and expertise required to conduct professional investigations. They also have insufficient legal knowledge and inadequate forensic and cyber infrastructure. In light of these deficiencies, the Second Administrative Reforms Commission (2007) recommended that states should have specialised investigation units within the police force for better investigation of crimes.7
(iii) Police accountability
In India, control over the police force vests with the political executive.[10] The Second Administrative Reforms Commission (2007) noted that this has to led to abuse of police personnel and interference with their decision-making authority.7 To allow the police operational autonomy while maintaining accountability, the Supreme Court issued guidelines to the central government and state governments (and Union Territories) in the year 2006.[11]
The guidelines provided for the establishment of three institutions: (i) a State Security Commission, (ii) a Police Establishment Board, and (iii) a Police Complaints Authority.11 The Supreme Court also stated that the state Director General of Police (DGP) should be selected from three senior-most officers of the state empanelled by the Union Public Service Commission and must have a minimum two-year tenure.
In addition, the court recommended that officers in key positions in the field (Inspector General in charge of Range, Station House Officer) must be given a two-year tenure. Currently, DGPs and senior officers are selected by the political executive of the state and are not guaranteed security of tenure.[10] In order to improve the quality of investigation, the Court recommended that investigating police must be separated from law and order police.11
These guidelines and recommendations of other expert bodies were used to create the draft Model Police Bill, 2015 by BPR&D, which states have been encouraged to adopt. While states have partially implemented some of these guidelines, no state has adhered to them in full.[12] In most states, the three institutions which the Supreme Court has directed states to create have not been given the authority they need to ensure accountability and insulate the police force from political misuse.12
[1]Entry 1 and 2, List II, Schedule 7, Constitution of India, 1950.
[2] Modernisation of Police Force Scheme Book, Ministry of Home Affairs, 2010 http://mha.nic.in/sites/upload_files/mha/files/Scheme-MPF-11Nov.pdf.
[3] “Cabinet approves umbrella scheme of Modernisation of Police Forces”, Press Information Bureau, 27th September 2017.
[4] Annual Report, Ministry of Home Affairs, 2015-16, http://mha.nic.in/sites/upload_files/mha/files/AR(E)1516.pdf.
[5] “Major Programmes Under Central Assistance for State Plans”, Union Budget, 2015-16 http://indiabudget.nic.in/budget2015-2016/ub2015-16/bag/bag8.pdf.
[6] “Data on Police Organisations”, Bureau of Police Research and Development, 2016, http://bprd.nic.in/WriteReadData/userfiles/file/201701090303068737739DATABOOK2016FINALSMALL09-01-2017.pdf.
[7] “Public Order”, Second Administrative Reforms Commission, 2007, http://arc.gov.in/5th%20REPORT.pdf.
[8] “Report No. 239: Expeditious Investigation and Trial of Criminal Cases Against Influential Public Personalities”, Law Commission of India, March 2012, http://lawcommissionofindia.nic.in/reports/report239.pdf.
[9] “Crime in India”, National Crime Records Bureau, 2006-15 http://ncrb.nic.in/StatPublications/CII/CII2015/FILES/Compendium-15.11.16.pdf.
[10] Section 3, Police Act, 1861.
[11] Prakash Singh vs Union of India, Supreme Court, Writ Petition (Civil) No. 310 of 1996, November 8, 2010.
[12] “Building Smart Police in India: Background into the needed Police Force Reforms”, Niti Aayog, 2016, http://niti.gov.in/writereaddata/files/document_publication/Strengthening-Police-Force.pdf.
On Monday, December 4, the Chairman of Rajya Sabha disqualified two Members of Parliament (MPs) from the House under the Tenth Schedule of the Constitution (better known as the anti-defection law) for having defected from their party.[1] These members were elected on a Janata Dal (United) ticket. The Madras High Court is also hearing petitions filed by 18 MLAs who were disqualified by the Speaker of the Tamil Nadu Assembly in September 2017 under the anti-defection law. Allegations of legislators defecting in violation of the law have been made in several other states including Andhra Pradesh, Arunachal Pradesh, Goa, Manipur, Nagaland, Telangana and Uttarakhand in recent years.[2] In this context, we explain the anti-defection law.
What is the anti-defection law?
Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.[3]
The Tenth Schedule was inserted in the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament and state assemblies.
Are there any exceptions under the law?
Yes, legislators may change their party without the risk of disqualification in certain circumstances. The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
Various expert committees 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.[4] This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries a remuneration, and has not been excluded in a list made by the legislature).
How has the law been interpreted by the Courts while deciding on related matters?
The Supreme Court has interpreted different provisions of the law. We discuss some of these below.
The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation
The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.[5] In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.[6]
In the case of the two JD(U) MPs who were disqualified from Rajya Sabha on Monday, they were deemed to have ‘voluntarily given up their membership’ by engaging in anti-party activities which included criticizing the party on public forums on multiple occasions, and attending rallies organised by opposition parties in Bihar.[7]
Decision of the Presiding Officer is subject to judicial review
The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.[8] However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
In 2015, the Hyderabad High Court, refused to intervene after hearing a petition which alleged that there had been delay by the Telangana Assembly Speaker in acting against a member under the anti-defection law.[9]
Is there a time limit within which the Presiding Officer has to decide?
The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea. Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.
There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.[10] In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House. There have also been instances where opposition members have been appointed ministers in the government while still retaining the membership of their original parties in the legislature.[11]
In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken away in small groups gradually to join the ruling party. In some of these cases, more than 2/3rd of the opposition has defected to the ruling party.
In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller groups. However, it is not clear if they will still face disqualification if the Presiding Officer makes a decision after more than 2/3rd of the opposition has defected to the ruling party. The Telangana Speaker in March 2016 allowed the merger of the TDP Legislature Party in Telangana with the ruling TRS, citing that in total, 80% of the TDP MLAs (12 out of 15) had joined the TRS at the time of taking the decision.[12]
In Andhra Pradesh, legislators of the main opposition party recently boycotted the entire 12-day assembly session. This boycott was in protest against the delay of over 18 months in action being taken against legislators of their party who have allegedly defected to the ruling party.[13] The Vice President, in his recent order disqualifying two JD(U) members stated that all such petitions should be decided by the Presiding Officers within a period of around three months.
Does the anti-defection law affect the ability of legislators to make decisions?
The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue. 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).[14]
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[1] Parliamentary Bulletin-II, December 4, 2017, http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066 and http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57067.
[2] MLA Defection Politics Not New, Firstpost, March 13, 2017, http://www.firstpost.com/politics/bjp-forms-govt-in-goa-manipur-mla-defection-politics-not-new-telangana-ap-perfected-it-3331872.html.
[3] The Constitution (52nd Amendment) Act, 1985, http://indiacode.nic.in/coiweb/amend/amend52.htm.
[4] Report of the Committee on Electoral Reforms, 1990, http://lawmin.nic.in/ld/erreports/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdfand the National Commission to review the working of the Constitution (NCRWC), 2002, http://lawmin.nic.in/ncrwc/ncrwcreport.htm.
[5] Ravi Naik vs Union of India, 1994, https://indiankanoon.org/doc/554446/.
[6] G.Viswanathan Vs. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras& Another, 1996, https://indiankanoon.org/doc/1093980/ and Rajendra Singh Rana vs. Swami Prasad Maurya and Others, 2007, https://indiankanoon.org/doc/1620629/ and Parliamentary Bulletin-II, December 4, 2017, http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066.
[7] Parliamentary Bulletin-II, December 4, 2017, http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066.
[8] Kihoto Hollohon vs. Zachilhu and Others, 1992, https://indiankanoon.org/doc/1686885/.
[9] Sabotage of Anti-Defection Law in Telangana, 2015, https://www.epw.in/journal/2015/50/commentary/sabotage-anti-defection-law-telangana.html.
[10] Speaker, Haryana Vidhan Sabha Vs Kuldeep Bishnoi & Ors., 2012, https://indiankanoon.org/doc/45034065/ and Mayawati Vs Markandeya Chand & Ors., 1998, https://indiankanoon.org/doc/1801522/.
[11] Anti-Defecton Law Ignored, November 30, 2017, http://www.news18.com/news/politics/anti-defection-law-ignored-as-mlas-defect-to-tdp-trs-in-andhra-pradesh-and-telangana-1591319.htmland It’s official Minister Talasani is still a TDP Member, March 27, 2015, http://www.thehansindia.com/posts/index/Telangana/2015-03-27/Its-Official-Minister-Talasani-is-still-a-TDP-member/140135.
[12] Telangana Legislative Assembly Bulletin, March 10, 2016, http://www.telanganalegislature.org.in/documents/10656/19317/Assembly+Buletin.PDF/a0d4bb52-9acf-494f-80e7-3a16e3480460; 12 TDP MLAs merged with TRS, March 11, 2016, http://www.thehindu.com/news/national/telangana/12-tdp-mlas-merged-with-trs/article8341018.ece.
[13] The line TD leaders dare not cross, December 4, http://www.thehindu.com/todays-paper/tp-national/tp-andhrapradesh/the-line-td-leaders-dare-not-cross/article21257521.ece
[14] Report of the National Commission to review the working of the Constitution, 2002, http://lawmin.nic.in/ncrwc/ncrwcreport.htm, Report of the Committee on electoral reforms, 1990, http://lawmin.nic.in/ld/erreports/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf and Law Commission (170th report), 1999, http://www.lawcommissionofindia.nic.in/lc170.htm.
