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Insights into Editorial: Ending inaction: On Speakers and disqualification

Insights into Editorial: Ending inaction: On Speakers and disqualification

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Context:

In an important order aimed at rearming the anti-defection law, the Supreme Court set three months as the outer limit for the Speaker to conclude disqualification proceedings against defectors.

The apex court also wanted Parliament to revisit the rationale behind giving exclusive powers to the Speaker in deciding disqualification petitions. After all, the Speaker also belongs to a political party and often gets caught in the power games.

 

Provisions of Anti-Defection Law:

The anti-defection law was made by inserting the Tenth Schedule to the Constitution in 1985 to combat “the political defections”.

The provisions require every Member of Parliament (MP) and of state legislative assemblies or councils (MLA or MLC) to abide by the party’s command on voting or abstaining on every vote.

If a legislator fails to do so, he may be disqualified from his membership to the legislature.

The provisions apply not only to votes that affect the stability of the government, i.e., no confidence motions and money Bills. They are applicable to all votes.

 

Arguments against Anti-Defection:

  • Legislators often argue that defection is a matter of choice and as individuals they have a right to decide who to support.
  • Several democracies have not adopted an anti-defection law, even though legislators often switch to the other side.
  • In the U.K., Australia and the U.S., parliamentarians and senators often take positions contrary to their parties or vote against the party’s view, yet continue within the same party.
  • Legislators should be allowed to express their own views and a defection law amounts to curtailment of the delegate’s freedom of choice.
  • Anti-Defection goes against the basis of a representative democracy in which the elected representative is expected to act in public interest
  • Even in India, several commentators have highlighted the irrelevance of the anti-defection law and called for reconsideration of such a legal provision.

 

Supreme Court’s decision of Speaker’s Authority:

There are two significant aspects to the Supreme Court’s latest decision on the Speaker as the adjudicating authority under the anti-defection law.

  • The first is that Parliament should replace the Speaker with a “permanent tribunal” or external mechanism to render quick and impartial decisions on questions of defection.
  • Few would disagree with the Court’s view that initial fears and doubts about whether Speakers would be impartial had come true.
  • The second is its extraordinary ruling that the reference by another Bench, in 2016, of a key question to a Constitution Bench was itself unnecessary.
  • The question awaiting determination by a larger Bench is whether courts have the power to direct Speakers to decide petitions seeking disqualification within a fixed time frame.
  • The question had arisen because several presiding officers have allowed defectors to bolster the strength of ruling parties and even be sworn in Ministers by merely refraining from adjudicating on complaints against them.
  • Some States have seen en masse defections soon after elections.
  • Secure in the belief that no court would question the delay in disposal of disqualification matters as long as the matter was pending before a Constitution Bench, Speakers have been wilfully failing to act as per law, thereby helping the ruling party, which invariably is the one that helped them get to the Chair.
  • It is time that Parliament have a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto.

 

Landmark judgment in Kihoto Hollohan (1992) which upheld the validity of the Constitution’s Tenth Schedule:

This verdict had also made the Speaker’s order subject to judicial review on limited grounds.

It made it clear that the court’s jurisdiction would not come into play unless the Speaker passes an order, leaving no room for intervention prior to adjudication.

Finding several pending complaints before Speakers, the Bench, in 2016, decided that it was time for an authoritative verdict on whether Speakers can be directed to dispose of defection questions within a time frame.

 

Supreme Court directed till Independent Tribunal is brought, decide in 3 months:

However, 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.

Given the widespread abuse of provisions of the Anti-Defection Act in the country, it is time Parliament reflected on the matter and came up with an out-of-the-box solution.

 

Conclusion:

The decision to disqualify a legislator is contingent on the institution of the Speaker.

The partisan role of the Speaker in many States has ensured the continuation of turncoat legislators as legitimate members of the House.

This is a good time to heed the advice of eminent constitutional experts to amend the anti-defection law and rest the authority to disqualify turncoats in the hands of an autonomous body.

As “failure to exercise jurisdiction” is a recognised stage at which the court can now intervene, the court has thus opened a window for judicial intervention in cases in which Speakers refuse to act.

This augurs well for the enforcement of the law against defection in letter and spirit.

While recommending that keeping in view the partisan conduct of Speakers, Parliament should amend the Constitution to set up a permanent tribunal to decide cases under the 10th Schedule.