PM IAS FEB 24 EDITORIAL ANALYSIS

Editorial 1: A case that scans the working of the anti-defection law

Introduction:

• A five-judge Bench of the Supreme Court of India is presently hearing a set of cases popularly known as the “Maharashtra political controversy cases”. Recently Election Commission of India (ECI) ordered that Eknath Shinde’s faction is entitled to the Shiv Sena party name and symbol.

The Tenth Schedule, past and present

• The anti-defection law (ADL) was introduced into the Constitution via the Tenth Schedule, in 1985. Its purpose was to check increasingly frequent floor-crossing; lured by money, ministerial berths, threats, or a combination of the three, legislators were regularly switching party affiliations in the house (and bringing down governments with them).
• The Tenth Schedule sought to put a stop to this by stipulating that if any legislator voted against the party whip, he or she would be disqualified from the house. While on the one hand this empowered party leadership against the legislative backbench, and weakened the prospect of intra-party dissent, the Tenth Schedule viewed this as an acceptable compromise in the interests of checking unprincipled floor-crossing.

• 40 years later, we find that the working of the Tenth Schedule has been patchy, at best. In the last few years, there have been innumerable instances of governments being “toppled” mid-term after a set of the ruling party or coalition’s own members turn against it.
• That this is power-politics and no high-minded expression of intra-party dissent is evident from the well-documented rise of “resort-politics”, where party leaders hold their “flock” more or less captive within expensive holiday resorts, so as to prevent the other side from getting at them.
• Indeed, politicians have adopted various stratagems to go around the anti-defection law:

1. Mass resignations (instead of defections) to force a fresh election
2. Partisan actions by State Governors (who are nominees of the central government) with respect to swearing-in ceremonies and the timing of floor tests
3. Partisan actions by Speakers (in refusing to decide disqualification petitions, or acting in undue haste to do so).

The Court has a challenging task

• This is where the role of the Supreme Court becomes crucial. Disputes over government formation and government toppling invariably end up before the highest court. It must immediately be acknowledged that such cases place the Court in an unenviable position: the Court has to adjudicate the actions of a number of constitutional functionaries: Governors, Speakers, legislative party leaders, elected representatives, many (if not all) of whom, to put it charitably, have acted dubiously.
• But the Court does not have the liberty of presuming dishonesty: it must maintain an institutional arm’s-length from the political actors, and adjudicate according to legalities, even as political actors in anti-defection cases do their best to undermine legality. This is a challenging task.
• The present case (the Maharashtra political controversy) that presents an interesting case study. It began when a set of legislators from the Shiv Sena rebelled against then CM Uddhav Thackeray. The Deputy Speaker (there was no Speaker at the time) moved to disqualify the “rebels” who in turn moved the Court, arguing that there was a pending no-confidence motion against the Deputy Speaker, and therefore, as per the Supreme Court’s judgement in Nabam Rebia case, he was disqualified from deciding on the disqualifications while it was pending.
• The Supreme Court’s vacation Bench stayed the Deputy Speaker’s hand, but also directed a floor test. The upshot of this was that the “rebel MLAs” (who may or may not have subjected themselves to disqualification) were able to vote in this floor test, and voted to bring the government down. The new government was swiftly sworn in (by the Governor), and appointed its own Speaker, thus effectively creating a fait accompli with respect to the pending disqualification petitions. To top it all, the Supreme Court’s orders were “interim” in nature, and therefore, no reasons were provided.

In perspective

• These orders, the correctness of which is now being considered by the five-judge Bench, albeit in the context of a changed political situation that itself is the consequence of those very orders, reflect how judicial interventions, if not carefully thought through, can hasten the toppling of a government and contribute to turning the Tenth Schedule into a dead letter.
• If, for example, it is held that a Speaker cannot decide a disqualification petition while under a notice for removal themselves, and that a floor test can be ordered in the interim (by the Governor or the court), the consequences are obvious: a “rebel MLA” can move a notice for removal, incapacitate the Speaker from taking action, and leave rebel MLAs free to bring down the government without consequence.

Conclusion:

• The use of money and indeed threats and inducements of prosecution or immunities therefrom to “turn” MLAs is a truth that is evident to all with the eyes to see. The Court’s judgement can act as a counterweight to political power, and infuse a dose of constitutionalism into the politics of government formation and toppling. But equally, the Court’s judgement could make toppling governments even easier for those with the means to do so. Only time will tell which of the two it will be.

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Editorial 2: India’s R&D estimates are an incomplete picture

Context:

• India’s research and development (R&D) expenditure-GDP ratio of 0.7% is very low when compared to major economies and is much below the world average of 1.8%.

Issues with the current system

• The main reason is the low investment in R&D by the corporate sector. While the corporate sector accounts for about two-thirds of gross domestic expenditure on R&D (GERD) in leading economies, its share in India is just 37%. There is evidence, however, suggesting that India’s GERD data are an underestimate.
• A 2022 infobrief of the National Science Foundation (NSF) of the United States on Foreign R&D by U.S.-based multinational corporations (MNCs) shows a spend of $9.5 billion on R&D in India in 2018, which increased to $9.8 billion in the following year.
• There are MNCs from other leading countries also spending on R&D in India. But the latest Research and Development Statistics, published by the Department of Science and Technology (DST) in 2020, has provided an estimate of R&D spending in 2017-18 by foreign MNCs, which is only about 10% of what U.S. firms have reported to have spent in India on R&D.

• The National Science and Technology Management Information System (NSTMIS) of the DST is the agency that compiles GERD statistics in India. It is easier to gather the information on R&D by the government sector, the higher education sector and public sector enterprises. The challenge lies in collecting data from the private corporate sector. There are two key factors that make the official R&D estimates grossly inadequate.
• The method used for identification of R&D performing firms does not capture all the R&D performing firms. The NSTIMS relies on the Department of Scientific and Industrial Research (DSIR) list of recognised R&D units and the Prowess database of the Centre For Monitoring Indian Economy (CMIE) Pvt. Ltd. for this purpose.
• The DSIR list may not have many of the actual R&D performers for two reasons:

1. firms which consider government incentives as not attractive enough or that are sensitive about sharing critical information with the DSIR may not be inclined to register themselves with the DSIR.
2. It may be difficult for R&D firms in services such as software and R&D services to meet the requirement of having separate infrastructure for R&D to distinguish it from their usual business. Many of the R&D performing enterprises in new technology areas may come under the services category.

Way forward:

• Transforming India’s R&D statistics to truly reflect the R&D ecosystem calls for short-term and medium-term measures.

1. In the short term, the NSTMIS should use the patents granted data, both in India and the U.S., in addition to its current method to identify R&D performing enterprises.
2. While surveys can collect much more information related to innovation activities, R&D statistics should not be confined to the responses to the surveys. Instead, annual R&D estimates can be prepared from mandatory disclosures that the enterprises are required to make to the MCA.
3. In order to ensure compliance and proper reporting, technologies can be used like in the case of revamped income-tax return forms where various sections are interlinked.
4. Additionally, proper disclosure of information to regulatory agencies, including R&D spending data, should be made an essential component of the environmental, social and governance (ESG) ranking of enterprises.

Conclusion:

• Unlocking the R&D potential of India is one of the key drivers of our goal to become a $5 trillion economy by 2025.