anti-defection-law-goa-assembly-case

Context- After the interference of the Supreme Court of India, the Goa assembly Speaker recently agreed to advance the date of his decision on the disqualification petitions filed against ten former opposition party’s MLAs who merged with the ruling government in 2019 from April 29 to April 20.

Background 

  • Earlier, the former Chief Justice of India Sharad A Bobde asked the Solicitor General, who appeared for the Speaker's office, whether the initial date of April 29 was fixed with an eye on the fact that he would retire on April 23. 
  • As per the court,the Speaker had resolved the disqualification proceedings for orders on February 26, so April 29 is not acceptable by the bench and asked the Speaker to dispose of the petition as soon as possible.
  • The CJI had orally observed that nobody can have vested the right to delay a plea filed by a opposition leader, thus challenging the Speaker's delay of over 19 months to decide the disqualification petitions. 
  • The petitioner alleges that the 10 MLAs, purportedly claiming to form a two third of Indian National Congress in the state, decided to merge the said legislature party with the BJP and address a communication to that effect to the Speaker. 
  • The plea said based on the communication, the Speaker was pleased to take note of the alleged merger of INC’s legislative party in Goa’s Legislative assembly and allotted the 10 MLAs seats in the assembly along with the members of the BJP. 
  • The petition has referred to a recent judgment of the Supreme Court which is just the Speakers to decide on disqualification proceedings within a reasonable time, ideally three months. 

ANTI DEFECTION LAW 

  • The tenth schedule of the Constitution of India also known as the Anti Defection Law was added to the Constitution by the 52nd Constitutional Amendment Act, 1985 to combat the “evil of political defections" in legislatures- both Central and state.  
  • It lays down the grounds on which the legislators may be disqualified in cases of defection by the Presiding Officer of the House on a petition by any other member of the House. The decision of the Presiding Officer is final in this regard.  

Grounds of Disqualification as per the Law 

  • If an elected member voluntarily gives up his or her membership of a political party. 
  • If a member votes or abstains from voting in the house, contrary to the directions issued by his or her political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from the voting or abstention, then the member shall not be disqualified.
  • If any independent candidate joins any political party after his/ her election to the House. 
  • If a nominated candidate joins any political party after the end of six months of his election to the house. 

Disqualification Procedures 

  • The decision on the disqualification of a member on the grounds of defection is referred to the Speaker or the Chairman of the house and his/ her decision is final in this regard. 
  • The proceedings in relation to defection under the 10th schedule are considered to be proceedings in parliament or the legislature of a state as is the case. 

Exceptions made under the Law 

  • The law allows the legislators to change their party without the risk of disqualification in certain circumstances. These include: 
  • When there is a merger of one party into another party; provided that at least 2/3rd of its legislators are in favor of the merger. 
  • In such a scenario, neither the members who decided to merge nor the ones who stayed with the original party face disqualification charges. 

Kihota Hollohon vs. Zachilhu (1992) 

  • In the judgment, the Supreme Court clarified that the 10th schedule is constitutionally valid and it neither impinges upon the freedom of speech and expression nor subverts the democratic rights of the elected members. 
  • It also upheld the sweeping discretion available to the Speaker/ Chairman of the House in deciding cases of disqualification of MLAs. 
  • However, the apex court also held that the Presiding Officer’s decisions of disqualification shall be open to judicial review. 

Positive implications of the Anti Defection law  

  • The law to a certain extent ensures that the elected representatives stay loyal to the mandate given to them by their constituents and that they do not steal the mandate for personal motives. 
  • Due to this, the toppling of the ruling dispensation has become a difficult task, as legislators are prevented from switching sides. 
  • It provides a scope to reprimand elected representatives who have defected from their party to another.  
  • The law helps in promoting party discipline. 
  • It facilitates mergers of political parties without attracting the provisions of anti defection. 

Concerns with the Law 

  • The law restricts the legislators from voting according to their conscience and thus is a challenge to one’s internal judgements.  
  • Over time, it has been observed that the Presiding Officer who in most cases has a political affiliation fails to perform his duties impartially. 
  • The Presiding Officer who is the deciding authority lacks enough judicial competence to decide on such sensitive matters. 
  • It impedes legislative control over the government.  
  • It affects the spirit of discussion and debate in the legislature.  
  • The difference between the nominated and the independent members under the law is found to be absurd.  
  • While the current law provides for disqualification, it is rendered toothless because the resigning MLAs, even if disqualified, are allowed to recontest the by elections and return to the house. 

Way Forward  

  • As per the Dinesh Goswami Committee (1990), the disqualification provision should specifically be limited to defying the party whip in motions of confidence, money bill, and vote of thanks to the President. 
  • The disqualifying authority should be vested in the Governor/ President who shall act on the advice of the Election Commission.  
  • Parity has to be there between the nominated and the independent members.  
  • The Law Commission in its 170th report recommended for the deletion of the provisions that exempts splits and mergers from disqualification. 
  • The Commission also recommended that pre-poll electoral fronts should be treated as political parties under anti defection and the political parties should limit the issuance of whips only to such instances when the government’s stability is in danger. 
  • Given the rise in problems in the modern world, it is high time the legislation either reviews or implements the recommendations given by the various committees. What is currently needed is a rationalized version of the Anti Defection law. 

Source: The Hind