Editorial Notes

[Editorial Notes] Overcome the malaise of Defection

The growing opportunistic incidents in politics of the country in general and Rajasthan in particular highlight the failure of the anti-defection law to stop cynical defections in legislatures.
By IASToppers
July 24, 2020

Contents

  • Introduction
  • Tenth Schedule
  • Kihoto Hollohan case
  • Controversy in Rajasthan
  • Recent Developments
  • Way Forward
  • Conclusion

Overcome the malaise of Defection

For IASToppers’ Editorial Simplified Archive, click here

Introduction:

The anti-defection law or the Tenth Schedule was added to the Constitution through the Fifty-Second (Amendment) Act, 1985. The recent incidents in the country in general and Rajasthan in particular highlight the failure of the anti-defection law to stop cynical defections in legislatures.

Tenth Schedule:

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

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 an 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 a 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.

Kihoto Hollohan vs Zachillhu And Others (1992):

  • In the case, the SC settled the constitutional challenge to the Tenth Schedule.
[Background: The question before the SC was whether the powerful role given to the Speaker violated the rights of free speech and doctrine of Basic Structure.]
  • SC upheld the constitutional validity of the 52nd CAA in the case & observed that the anti-defection law does not violate any rights of free speech or basic structure of the parliamentary democracy.
  • The court made it clear that the decision made by the presiding officer is final and subject to judicial review after the decision is pronounced and affected.
  • Also, a five-judge constitution bench of the court in 2007 had ruled that there is scope judicial intervention when presiding officers fail to exercise their powers.

Controversy in Rajasthan:

i. Background:

  • The Rajasthan Legislative Assembly Speaker removed the Deputy Chief Minister of Rajasthan (Sachin Pilot) from his position and his loyal 18 other MLAs after they failed to show up at two Congress Legislature Party (CLP) meetings, which showed the intention of the MLAs to leave the Congress party.
  • On a petition of the Congress legislature party, the Speaker of the Rajasthan Vidhan Sabha issued show-cause notices to concerning legislators to explain as to why they should not be disqualified under the Tenth Schedule.
  • The show-cause notices were challenged in the Rajasthan High Court.

ii. Arguments of the dissidents:

  • Pilot and the 18 MLAs have neither defected nor voted/abstained from voting in a manner that can be construed as being against the party whip in the Vidhan Sabha.
  • Mere probability of defection cannot be a legally sustainable ground for disqualification; a political party can expel such members from the legislature party, though.

iii. Arguments of the ruling party:

  • Every political party is empowered under its party constitution to enforce discipline to preserve, protect and uphold its ideological moorings and identity.
  • The Supreme Court in its judgments has ruled that formal resignation is not a prerequisite for giving up membership of the party.
  • Actions such as public opposition to the party’s decisions or support to a rival party or participating in rallies of the rivals constitute giving up membership.
  • In Sachin Pilot’s case, he has gone public with his opposition to party leadership’s decision – such as expressing his resentment to the appointment of Ashok Gehlot as the chief minister.
  • He also defied directive to attend the Congress legislature party meetings.

Recent Developments:

  • The High Court issued an interim order granting extended time to Mr. Pilot and the other MLAs to file their replies to the July 14 anti-defection notices.
  • The speaker’s office filed a special leave petition within a day of the High Court order.
  • A three-judge bench of Supreme Court led by Justice Arun Mishra is scheduled to hear on 23 July an appeal filed by Rajasthan Speaker’s office challenging the State High Court order to defer anti-defection proceedings till July 24.
  • The petition by the speaker to SC said the HC asking the Speaker to put off his decision on the disqualification notices was an affront to the powers of the Speaker.
  • It was illegal and destroys the delicate balance envisaged by the Constitution between the legislature and the judiciary.
  • It amounted to a violation of Article 212 (courts not to inquire into the proceedings of the legislature). The notice dated July 14 is a proceeding in the House and immune from judicial interference at that stage.

Way Forward:

  • The 10th Schedule should be replaced with a simple provision which will automatically disqualify the defecting legislators and force them to be re-elected in case of anti-party activities.
  • No one who resigns or is disqualified should be allowed to be a minister or corporation post holder, for six months or a year even after re-election.
  • The election of speakers should be done by all or the majority of parties unanimously selecting an appropriate person before each general election as presiding officer and not putting up a candidate against such a pre-selected speaker.
  • The governor should be constitutionally and explicitly barred from anything but a ceremonial role in the legislature to prevent meddling in the running of the House and the government.
  • 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 Constitution was amended to curb the evil of defection, considering it a serious threat undermining the very foundations of democracy and the principles that sustain it. Given how the intent of the law is being ingeniously thwarted, a review of the anti-defection law is called for, to possibly even include debarring of such representatives from contesting election for five years. 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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