Events & Issues
New Delhi, 30 January
2020
Chronic Defections
TRIBUNAL PERMANENT REMEDY
By Dr.S.Saraswathi
(Former Director, ICSSR, New Delhi)
The
Supreme Court is indeed forced to make a rather drastic recommendation that
Parliament should by an amendment of the Constitution add a provision in the Tenth
Schedule to constitute a permanent tribunal to decide cases of defection of MPs
and MLAs. For the present, it has
directed that
the Speaker, who is acting as a
tribunal, should decide on disqualification petitions “within a reasonable time” and fixed an outer limit of three months from the date of
filing of the petition.
The
judgement is given in a case relating to a Congress MLA in Manipur Assembly who
joined BJP and also became a Minister when BJP formed government in 2017. The
Speaker had not taken any decision on dozens of petitions received by him seeking
the member’s disqualification for defection.
This
is in sharp contrast to the speed with which the Karnataka
Speaker recently not only disqualified one Congress and another JD(U) member
who gave up their party membership, but also barred them from contesting election during the remainder of their term.
Ever
since the Anti-Defection provisions were added as the Tenth Schedule in the
Constitution, courts are flooded with cases
involving judicial review of decisions of Speakers on migration of MPs and MLAs
from party to party inviting interpretation and application of the law.
Defections have grown as a chronic political disease in our parliamentary
democracy and certainly require a permanent remedy. A standing tribunal is likely to find its hands full to
deal with growing number of cases throughout the year. It will also lessen the
burden on the overburdened SC. As
more and more laws are enacted and rules under the laws and court directives
increase, more litigations are bound to come up leading to delay in judgements
whereas issues have time-bound existence.
The
question of Speaker’s powers to decide disqualification of members and the
power of intervention by the court are important constitutional issues that
have faced contrasting court verdicts. Setting
up a larger Bench of five judges
recommended by the Court in 2016 to go into this has not yet materialised. In this background, the recommendation for a
permanent tribunal is made by the SC.
“It
is time that Parliament has a rethink on whether disqualification petitions
ought to be entrusted to the Speaker as an impartial quasi-judicial authority
when such Speaker continues to belong to a particular political party either de jure or de facto”, stated the judgement. It questioned the necessity to conduct the
disqualification proceedings in-house when removal of judges is handled outside
the judiciary.
The
problem of political defection has been
enlarged and transformed as a constitutional issue of Speaker’s rights and also judiciary’s role
vis-à-vis the legislative body.
Unlike
the Speaker of the House of Commons in Britain, the Speaker in India is not
required to resign from his party. The
first Speaker Mavalankar considered adopting the British convention of
uncontested election of the Speaker and
his/her independence from party
affiliation, but it was not acceptable to political parties in India and given up.
There is no continuity in the office of Speaker who is elected by
members among themselves.
Rather, a convention of granting the post of Speaker to the ruling
party and that of Deputy Speaker to the main Opposition Party has found favour with all parties and also
broadly followed. In the politics of alliances,
these posts, like
ministries and chairmanship of some important boards, are among the
items in top-level negotiations
conducted for concluding sharing
formula among
the allies.
The
practice of entrusting decisions on defections and disqualifications in the
office of the Speaker
has enhanced the power and influence of the Speaker. This development is linked with increase in
the number of political parties and establishment of “coalition governments”
and constant efforts for “opposition unity”. Government formations and dismissals have come
to depend much on mobilising support of elected members more than voters. The
context providing the incentive for engineering defections, the office of the
Speaker is growing in importance. His role both in Parliament and State
legislatures goes beyond what was envisaged in the Constitution.
Executing
the Anti-Defection Law in letter and spirit is stressed by the SC as
vital to the functioning of democracy. It is for achieving this, it
suggested that a tribunal under a retired judge of the SC or
Chief Justice of a High Court or some
similar independent body should handle defection cases because of
doubts raising over the impartiality of Speakers and to speed up
decision-making. The inordinate delay
made by Speakers on several cases when the term of the legislative body is
fixed as five years has already nullified the effectiveness of the law. Nariman’s Bench this time was for Court’s intervention when the Speaker
delayed decision inordinately. It is a way of assisting the Speaker to arrive
at a quick decision provided political interests are kept away. His contention
is that the previous judgement did not prohibit judicial intervention to assist
the Speaker.
What
happened in Tamil Nadu in 2017 after
Jayalalitha’s demise best illustrates the latent power of the
Speaker in deciding the fate of
governments. Disqualification of 18
dissident AIADMK MLAs by the Speaker reduced the strength of the House and
thereby helped the party to retain power. Lack of confidence in the Chief Minister
expressed by the dissident members was interpreted as “voluntarily giving up”
their party membership. The Speaker’ decision received the approval of
the courts and ended in bye-election for vacated seats. A
similar case in Karnataka of disqualification of 11 BJP legislators was
upheld by the High Court.
The
present court ruling has a chain effect
and already, the DMK has sought urgent hearing of its plea for disqualification
of 11 AIADMK MLAs including the Deputy.CM of Tamil Nadu who voted against Tamil Nadu
government on the confidence motion in
2017 when that party was undergoing a deep split within. In April 2018, the
Madras High Court rejected the petition and decided to wait for the verdict of
the Supreme Court on the powers of the court to issue directions to the
Speaker. The DMK’s appeal to the Supreme Court is now in the apex Court.
Whether urgent hearing of this case will take place or the recommendation for constituting a
permanent tribunal will move ahead is to
be settled now. The decision on this will have multiple
consequences – direct and indirect. It will help determine the powers of the
Speaker, and also the limits of judicial review of Speaker’s decision. Indirectly,
it will impact the political party influence on the functioning of
Speakers who cannot disassociate themselves from their political affiliations for the sake of an office for a limited term.
The
Speaker’s stand and judicial delay have been deciding survival and breakdown of
governments following defection of members. Tightening the system and
procedures are not normally welcomed by contesting parties who benefit by
flexibility and take advantage of loopholes. The Supreme Court hopes for speedy
and impartial decisions from an independent tribunal. We have to wait and hope.---INFA
(Copyright, India News & Feature Alliance)
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