Editorial Notes

[Editorial Notes] Controversy regarding disqualification power of the Speaker

Under the Tenth schedule of the Indian Constitution, the power for disqualification of any member of house is vested in the Speaker, who is usually a nominee of the ruling party.
By IASToppers
June 25, 2020

Contents

  • Introduction
  • Tenth Schedule
  • Controversy in Manipur
  • Supreme Court’s verdict
  • Way Forward
  • Conclusion

Controversy regarding disqualification power of the Speaker

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Introduction:

The anti-defection law, referred to as the Tenth Schedule, was added to the Constitution through the Fifty-Second (Amendment) Act, 1985. The recent incidents in Manipur in particular, and in India at large, highlight the complete failure of the anti-defection law to stop cynical defections in legislatures.

Tenth Schedule:

  • The Tenth Schedule provides for the disqualification of Members of Parliament and State Legislatures who defect.
  • It was inserted in the Constitution by the 52nd Constitution Amendment Act, 1985, popularly known as the anti-defection law.
  • The power for this disqualification is vested in the Speaker, who is usually a nominee of the ruling party.

i. Grounds for disqualification:

The member of a House (MP, MLA/MLC) belonging to any political party becomes disqualified for being a member of the House, if:

  • He voluntarily gives up his membership of such political party.
  • He votes or abstains from voting in such 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.
  • An independent candidate joins a political party after the election.
  • A nominated member joins a party six months after he becomes a member of the legislature.

ii. Exceptions to the disqualification on the ground of defection:

  • If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such merger.
  • 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.

Controversy in Manipur:

i. 2017:

  • In 2017, Manipur’s Assembly elections, in the 60-seat House, Congress emerged the largest party with 28 seats – just three short of a clear majority.
  • But the state governor invited the Bharatiya Janata Party government to form the government when it had only 21 seats.
  • This unusual decision by the governor set-off a domino effect of questionable decisions within the Manipuri assembly.
  • As many as eight Congress MLAs defected from the Congress and eventually the BJP won the Rajya Sabha seat.
  • India’s Constitution forbids defections as per the Act, and so Congress asked the speaker to disqualify these MLAs.
  • But the speaker simply hung on the disqualification petitions – allowing the defectors to keep on functioning as members of the Manipur Assembly.
  • The matter reached High Court; But the Court again did not pass orders since the larger issue of disqualification was pending before the Supreme Court.

ii. 2020:

  • On June 9, 2020, the Manipur High Court followed in the footsteps of the apex court and barred the seven MLAs from entering the House.
  • The court also barred the speaker from ruling on the disqualifications until after the Rajya Sabha elections. [Manipur elects one MP to the Rajya Sabha]
  • However, the Manipur speaker completely ignored the High Court’s orders and disqualified three Congress MLAs as well the state’s lone Trinamool Congress MLA ahead of the Rajya Sabha election – all of whom were expected to vote for the Congress Rajya Sabha candidate.
  • Four other Congress MLAs were allowed to enter the House. Three of them voted for the BJP.
  • The result showed that the speaker’s machinations were critical for the result.
  • The Rajya Sabha is supposed to reflect the will of the state assemblies – but in the case of the Manipur Rajya Sabha MP election [19 June 2020], it was more a reflection of the speaker’s own political biases.
  • The incident highlights the failings of constitutional posts such as the governor and the speaker.
  • Both are supposed to represent their official institutions and be politically non-partisan; but as is clear from this case – and countless others – this is not the case.

Supreme Court’s verdict:

  • The Supreme Court in its January 2020 verdict set a time limit of three months for Speakers of state assemblies to decide on disqualification petitions under the anti-defection law, unless there were exceptional circumstances.
  • The Court urged Parliament to set up an independent tribunal to decide disqualification petitions within reasonable time to give teeth to the anti-defection law instead of leaving it to Speakers who continue to remain political party members either de jure or de facto.
  • Speakers have for long used the absence of a specific provision in the law for timely disposal of disqualification pleas to sit on the matter indefinitely that seemingly helped the ruling party.
  • It also held that courts have the powers to intervene if the proceedings are delayed.
  • This is an important order that closes the option for inaction on the part of a Speaker who fails to disqualify a member of the opposition who defects to the ruling party.

Way Forward:

  • A five judge constitution bench of the court in 2007 had already ruled that there is scope judicial intervention when presiding officers fail to exercise their powers.
  • While the court’s January 2020 order may have settled the issue of delay on the part of presiding officers to take decisions, the larger question of the Speakers’ role in the scheme of the anti-defection law remains unaddressed.
  • The suggestion that Parliament should think of putting in place a permanent and independent tribunal of former judges or some other mechanism to replace the Speaker as the adjudicating authority under the anti-defection law, must be taken into consideration.

Conclusion:

The anti-defection law failed to serve the purpose for which it was created, but has become a tool for manipulation and control at the hands of the ruling party of any particular state. The constitutional courts must intervene in such unruly exercise of power and cement the loopholes in the Act, to make it a legit tool to exercise the democratic power.

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