The politics in Manipur has come under fresh turmoil following the withdrawal of support to the Bharatiya Janata Party-led government from MLAs belonging to the National People’s Party (NPP), two independents and defections by three BJP MLAs to the Opposition.
The Biren Singh-led government has probably now been reduced to a minority. The uncertainty in the numbers in the 59-member Assembly has been due to several defections in the last three years.
In Kihoto Hollohan (1992) case, the SC had upheld the validity of the anti-defection law and had also made the Speaker’s order subject to judicial review on limited grounds.
It had 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.
In the Rajendra Singh Rana case of 2007, the constitution bench set aside the Uttar Pradesh Speaker’s order refusing to disqualify 13 BSP defectors on the grounds that he had failed to exercise his jurisdiction to decide whether they had attracted disqualification, while recognising a ‘split’ in the legislature party.
About Disqualification under the Tenth Schedule
- The anti-defection law is contained in the 10th Schedule of the Constitution and was enacted by Parliament Constitution (52nd Amendment) Act, 1985.
- Legislators used to change parties frequently bringing in Political Instability and was also considered as betraying the mandate of voters (who voted for the legislator considering his political party).
- The purpose of 10th Schedule is to curb political defection by the legislators.
- There are two grounds on which a member of a legislature can be disqualified.
- One, if the member voluntarily gives up the membership of the party. Second, if a legislator votes in the House against the direction of his party and such act has not been condoned by the party within 15 days
- However, there is an exception – if there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified.
- The Presiding officer of the House (Speaker/Chairman) is the adjudicating authority with regard to disqualification of legislators under the Tenth Schedule.
Criticism of the anti-defection Law:
- Curbs the freedom of speech & expression of law makers
- Tyranny of Political Parties: Legislators have to abide by the line taken by Political parties even it is against their own stand or against the interest of her constituency
- Role of the Speaker is biased: Speaker who is a member of a political party is often not neutral and comes under the influence of his political party instead of deciding the cases on merit
- Delay in decision making: 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.
Utter failure of the anti-defection law:
The shenanigans in Manipur are not unique to the State. The examples of Karnataka and Madhya Pradesh most recently, and Arunachal Pradesh and Uttarakhand earlier show the utter failure of the anti-defection law in curbing the brazen subversion of electoral mandates by legislators who get elected on the ticket of one party but do not find it inconvenient to shift to another, due to the lure of ministerial berths or financial gains.
If the role of the Speaker who has the authority to decide upon defections has been utilised by ruling parties to engineer defections without inviting immediate disqualification in some cases, legislators have also adhered to the law in letter if not spirit by utilising the option of outright resignation.
This begs the question whether the anti-defection law actually serves any purpose today.
In the absence of any amendments to the law suitably, the only disincentive for defectors is the possibility that voters might punish them in a by-election.
But as Karnataka recently showed, voters in some States have yet to discern candidacies beyond considerations of patronage and identity, emboldening parties to retain or seize power through immoral machinations.
Supreme Court directive on Anti-defection law:
- Though the law has been able to curb the evil of defection to a great extent, a very alarming trend of legislators defecting in groups to another party is visible.
- The speaker who also belongs to a particular political party could be influenced by political interests.
- In many cases, the disqualification petition to be decided within a reasonable period of time has lingered on for an indefinite period.
- Recently the disqualification petition against seven of its MLAs had been pending at Nagaland Legislative Assembly speaker’s court for 10 months.
- In the recent case of Manipur Congress MLAs’ disqualification case, the three-judge bench of the SC headed by Justice R.F. Nariman directed the speaker of the Manipur Legislative Assembly to dispose of the case within four weeks, failing which the petitioner could approach the High court.
- In the recent Manipur assembly case, the court gave a deadline of four weeks to the Manipur Assembly Speaker to decide the disqualification question in a legislator’s case.
- 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.
- If the SC directive is followed without any constraints, it augurs well for the enforcement of the law against defection in letter and spirit.
Supreme Court in its 21st Jan 2020 order gave the following pronouncements:
Reasonable Time period for deciding on Disqualification:
- Unless there were “exceptional circumstances”, disqualification petitions under the Tenth Schedule should be decided by Speakers within three months
- Failure to deliver decision by Speaker within a reasonable time period will entail the court to intervene in the disqualification matter (as has happened now in this case)
Suggested an Independent Body:
- SC asked the Parliament to consider having an independent and permanent body to decide disqualification petition, which requires an amendment to the constitution.
- Given the fact that a Speaker belongs to a particular political party, the Court mooted this idea.
- Also, Speaker wasn’t adjudicating election disputes or disqualification of members under Articles 103/ 192/ 329 for good reason, because their fairness could be suspected.
We are facing a deeper challenge of the corrosion of India’s parliamentary system, for even in jurisdictions without such anti-defection laws, we do not see “horse-trading” and “resort politics”.
Hence, beyond institutional fixes, we also need a popular articulation of an ethical politics that causes the public to shun such political manoeuvres.