This article is written by ASHUTOSH SRIVASTAVA student of Asian law College.
- BACKGROUND :
The Anti-Defection Law, as the Tenth Schedule of the Indian Constitution is popularly known, was an amendment made by the Rajiv Gandhi government by the 52nd Amendment Act in 1985. The law made it mandatory for a legislator to follow the instructions of his party when voting in the house.
In other words, it barred the act of defection or a legislator joining or voting with any other party but his own. This law for the first time made legislators accountable to the party first, legislature later.
This law says a legislator – MLA or MP – can be disqualified by the Presiding Officer of a legislature – Speaker in the Vidhan Sabha and the Lok Sabha, and Chairman in the Rajya Sabha and upper houses in the state assemblies.
The disqualification can happen on the grounds of defection for which moving a petition by the party or any other member of the House is mandatory.
- DISQUALIFICATION METHODS:
There are two grounds on which a legislator can be disqualified. One, she or he gives up the membership of the party. Two, she or he disobeys the directives of the party leadership on a vote in the House. A whip issued by the party is a directive on how to vote in the House on a motion.
This law was brought in to make sure that an MLA or MP does not leave the party after being lured by a rival. The underlying principle is that it is the party that contests election and not the individual except in the case Independent candidates.
v RAJASTHAN SCENE:
Earlier this month, a section of party MLAs led by the deputy chief minister Sachin Pilot raised the banner of revolt against their party and government. With CP Joshi, the speaker – a stalwart Congress politician – moving to initiate disqualification proceedings against the rebel MLAs, the Rajasthan High Court on Tuesday “requested” the speaker to delay proceedings by giving them more time to file their reply.
The Congress requested the speaker to initiate proceedings after the Pilot camp absented itself from two Congress Legislature Party meetings.
The speaker had argued that the notice issued to the MLAs was in the realm of legislative proceedings under the Tenth Schedule and said the judicial review of an ongoing anti-defection proceedings was limited. It further argued that the high court order on holding off action against the rebels amounted to violation of Article 212 (courts not to enquire into the proceedings of the legislature).
The move set off a political storm, with the speaker accusing the high court of precipitating a constitutional crisis. In Indian politics, MLAs going missing are an alarmingly common occurrence. On July 12, 19 Rajasthan Congress MLAs, led by Sachin Pilot, rebelling against their chief minister, secretly left their state and surfaced in Haryana.
On July 13, when the Congress held a meeting of its legislature party, the rebel MLAs remained AWOL. The same pattern was repeated on July 14. As a result, the Congress’ chief whip in the Rajasthan Assembly filed a complaint with the speaker, saying that the MLAs should be disqualified under the anti-defection law. The speaker in turn sent the rebel MLAs a notice asking them to explain their side of the story.
Back to Rajasthan: on July 16, the rebel MLAs moved the Rajasthan High Court challenging the speaker’s notices. While the high court is yet to deliver a final verdict, unusually it requested the Rajasthan speaker to delay the proceedings for disqualification till it delivered its verdict. On Thursday, the Supreme Court endorsed this move by the high court.
v JUDICIAL LOOPHOLE:
The Parliament needs to amend the Constitution regarding the role of Speaker as a quasi-judicial authority while dealing with disqualification petitions under the anti-defection law (when such a Speaker continues to belong to a particular political party either de jure or de facto).
The Court suggested that an independent tribunal can be appointed which will substitute the Speaker of the Lok Sabha and Legislative Assemblies to deal with matters of disqualification under Tenth Schedule.
Currently, disqualification of members of a House/Assembly is referred to the Speaker of the House/Assembly.
The Tribunal will be headed by a retired Supreme Court judge or a retired Chief Justice of a High Court. The Court also suggested that some other outside independent mechanismcan adjudicate on such matters. This will ensure that such disputes are decided both swiftly and impartially.
- On the questions of disqualification of the members, the Supreme Court in Kihoto Hollohan vs Zachillhu and Others, 1992 case ruled that the decision of the Speaker in this regard is subject to judicial review.
- The Supreme Court in Jagjit Singh versus State of Haryana (2006) highlighted the similar allegations about the confidence on the role of Speaker in the matters of impartiality.
- In Kihoto Hollohan case (1992), one of the judges observed that the suspicion of bias on the Speaker’s role could not be ruled out as his/her election and tenure depends on the majority will of the House (or specifically of the ruling party).
- Also in the recent case of Manipur Legislative Assembly (2020), the Supreme Court questioned, “why a Speaker- who is a member of a particular political party and an insider in the House, should be the sole and final arbiter in the cases of disqualification of a political defector.”
In the present Deputy CM Sachin Piolet case, however, it might be the Rajasthan High Court that has overstepped its bounds, argues PDT Acharya, former Secretary General of the Lok Sabha. “There cannot be an intervention by the court before the speaker has made his decision,” he explained. “The court has the power to review the speaker’s decision. But the speaker is the only authority that can decide on the issue.”
In this case, the High Court has obstructed the proceedings of the speaker. In effect this is a stay on the disqualification proceedings. This goes against the orders of the Supreme Court itself. Intervention by any court at this stage is absolutely barred.
The solution to this whole thing is simple: get rid of the anti-defection law. That is the only way out of this mess.