The Supreme Court recently asked Parliament to amend the Constitution to strip Legislative Assembly Speakers of their exclusive power to decide whether legislators should be disqualified or not under the anti-defection law.
- An independent tribunal ought to be appointed instead to determine the fate of an MP or an MLA who has switched sides for money and power, the court said.
The recent judgment came on an appeal filed by Congress legislator Keisham Meghchandra Singh against the Manipur Assembly Speaker for the disqualification of Minister T. Shyamkumar, who after contesting in the Congress ticket, switched sides to favor the BJP.
The court asked the State Assembly Speaker to decide the disqualification petition in four weeks. The petitioners were given liberty to approach the Supreme Court in case the Speaker failed to comply.
- This is the second time in as many months the court has highlighted the issue of taking away the disqualification power under the Tenth Schedule from Speakers.
- In an earlier judgment in the Karnataka MLA’s disqualification case, the court had held that a Speaker who cannot stay aloof from the pressures and wishes of his political party does not deserve to occupy his chair.
- This judgment also urged Parliament to reconsider strengthening certain aspects of the Tenth Schedule, so that such undemocratic practices are discouraged.
The question raised in the present order
- The judgment questioned why a Speaker, who is a member of a particular political party and an insider in the House, should be the sole and final arbiter in the disqualification of a political defector.
- The court asked why disqualification proceedings under the Tenth Schedule (anti-defection law) should be kept in-house and not be given to an outside authority. Even the final authority for the removal of a judge is outside the judiciary and in Parliament.
Possible alternatives that can be explored
- A permanent tribunal: The court suggested a permanent tribunal headed by a retired Supreme Court judge or a former High Court Chief Justice.
- Swift and impartial disqualification: Only swift and impartial disqualification of defectors would give real teeth to the Tenth Schedule. Hence, for the present, the court said the Speakers should decide Tenth Schedule disqualifications within a reasonable period.
What was ‘reasonable’ would depend on the facts of each case. Unless there were “exceptional circumstances”, disqualification petitions under the Tenth Schedule should be decided by Speakers within three months. The court noted that this period was ‘reasonable’, as the ordinary life of the Lok Sabha or the Legislative Assemblies was merely five years.
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.
- The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act. 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 has voluntarily given up his membership of such political party
- If he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs.
Exceptions under the law
- The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favor 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.
The Supreme Court’s interpretation while deciding on related matters
Voluntarily gives up his membership
- 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.
- In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.
The 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.
- However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
The 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.
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 Electoral Reforms (1990):
The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
Halim Committee on anti-defection law (1998):
- The words ‘voluntarily giving up membership of a political party’ be comprehensively defined.
- Restrictions like the prohibition on joining another party or holding offices in the government be imposed on expelled members.
- The term political party should be defined clearly.
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).