Context: Marking a first, the Supreme Court removed Manipur Minister, against whom disqualification petitions were pending before the Speaker, from the state cabinet and restrained him from entering the Legislative Assembly till further orders.
- The concerned person became an MLA in 2017 on a Congress ticket before switching to the BJP to become Minister in the coalition government.
- The apex court’s ruling came on an appeal against a Manipur High Court order on a petition seeking directions to Speaker Y Khemchand to decide the disqualification pleas within a reasonable period of time.
- Earlier, while hearing the matter, the Manipur High Court had stated that it cannot pass any order as the question of whether a High Court can direct a Speaker to decide on a disqualification petition within a time frame is pending before a Supreme Court Bench.
- A three-judge Supreme Court Bench had asked the Speaker to decide the disqualification petitions within four weeks.
- The deadline was not met, and the Additional Solicitor General, appearing for the Speaker, had submitted that a detailed petition would be filed in ten days.
- The apex court while delivering the judgement said that it went out of our way to give the Hon’ble Speaker a chance to perform his functions under the Tenth Schedule to the Constitution of India and decide the matter.
SC invoked Article 142:
- Article 212 of the Constitution bars courts from inquiring into proceedings of the Legislature.
- In this case, however, prompted by the fact that the Speaker’s conduct has been called into question on several occasions, the court invoked Article 142, which allows the Supreme Court to pass any order necessary for doing complete justice in any cause or matter.
SC on Speaker’s power under 10th schedule:
- The Supreme Court, in a recent judgement said that the Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification with a permanent Tribunal, or some other outside independent mechanism.
- The tribunal to be headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court.
- This will ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy.
- Interpreting the Speaker's power under the 10th schedule the apex court had said that the Speaker, in acting as a Tribunal under the Tenth Schedule, is bound to decide disqualification petitions within a reasonable period, which will depend on the facts of each case.
- The 52nd CAA,1985 provided for the disqualification of the MPs and MLAs on the grounds of defection.
- Iit made changes to Article 101, 102, 190,191 of the Constitution and also added the 10th Schedule.
Provisions related to Disqualification
Grounds of Disqualification
- Members of Political Parties: A member of a House belonging to any political party becomes disqualified for being a member of the House.
- If (S)he voluntarily gives up his membership of such a political party.
- If he votes or abstains from voting in such a House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.
- Independent Members
- If he joins any political party after getting elected to the house.
- Nominated Members
- If he joins any political party after the expiry of six months from the date on which he takes his seat in the House. (can join any political party within six months)
The above disqualification on the ground of defection does not apply in the following two cases:
- If a merger takes place when two-thirds of the members of the party have agreed to such a merger.
- The provision of the Tenth Schedule pertaining to exemption from disqualification in case of split by one-third members of the legislature party has been deleted by the 91st Amendment Act of 2003.
- If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office.
- Disqualification arising out of defection is to be decided by the presiding officer of the House.
- Originally, the act provided that the decision of the presiding officer is final and cannot be questioned in any court.
- However, in the Kihoto Hollohan case (1993), the Supreme Court held that the presiding officer, while deciding a question under the Tenth Schedule, functions as a tribunal.
- Hence, his decision like that of any other tribunal, is subject to judicial review on the grounds of mala fides, perversity, etc.
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.
- In S.A. Sampath Case 2016, the SC referred the matter of inordinate delay by Speakers to pass an order, to a larger bench.
Impact of anti-defection law on legislator’s decision making abilities
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, judgment and interests of his electorate.
- Such a situation impedes the oversight functions 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.
Recommendations on Reforming the Anti-Defection Law
- Dinesh Goswami Committee on Election Reforms (1990): The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
- The Election Commission called for this advice to be binding in nature.
- Halim Committee on anti-defection law (1998):
- The words ‘voluntarily giving up membership of a political party’ are not comprehensively defined.
- Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members.
- The term political party should be defined clearly.
- Election Commission
- Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
- Constitution Review Commission (2002)
- The vote cast by a defector to topple a government should be treated as invalid.
- 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).