Disqualification pleas: Goa Speaker to rule on April 20
#GS2 #POLITY #ANTI DEFECTION LAW
- Asked by the Supreme Court, the Goa Assembly Speaker agreed to advance the date of his decision on the disqualification petitions filed against 10 former Congress MLAs who ‘merged’ with the BJP in 2019 from April 29 to April 20.
- Chief Justice of India asked Solicitor General, who appeared for the Speaker’s office, whether the initial date of April 29 was fixed with an eye on the fact that he would retire on April 23.
- “You want the matter to go to another Bench, which will have to hear the case all over again,” Chief Justice Bobde, who heads the three-judge Bench hearing the case, asked the law officer.
Challenging the Speaker’s delay
- The Speaker had reserved the disqualification proceedings for orders on February 26.
- April 29 is not acceptable by this Bench. Ask Speaker to dispose of the petition preferably this week itself.
- The Speaker was a constitutional authority who should be free to exercise his discretion in these issues.
- Petitioner remarks - The Speaker was “making a mockery of the whole process” under the Tenth Schedule of the Constitution.
- He has not decided the petitions for the past 19 months. There is a judgment of this court which says the Speaker should decide in four months.
- Finally, after receiving instructions, Solicitor General informed the court that the Speaker would decide on April 20. The court scheduled a hearing on April 21.
- On January 4, the CJI had orally observed that “nobody can have a vested right to delay” a plea filed by Goa Congress leader challenging the Speaker’s delay of over 19 months.
Disqualification Powers of Speakers
- In 2020, the Supreme Court had held that disqualification petitions under the tenth schedule should be adjudicated by a mechanism outside Parliament or Legislative Assemblies.
- The Court has suggested a permanent tribunal headed by a retired Supreme Court judge or a former High Court Chief Justice as a new mechanism. This would require an amendment to the Constitution.
- Currently, disqualification of members of a House/Assembly is referred to the Speaker of the House/Assembly.
- However, for the present, the court said the Speakers should decide Tenth Schedule disqualifications within a “reasonable period”. What is ‘reasonable’ would depend on the facts of each case.
- The Court held that unless there are “exceptional circumstances”, disqualification petitions under the Tenth Schedule should be decided by Speakers within three months.
- 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 disqualification of a political defector.
- For that matter, it asked why disqualification proceedings under the Tenth Schedule should be kept in-house and not be given to an “outside” authority.
- It reasoned that even the final authority for removal of a judge is outside the judiciary and in Parliament.
- The Court held that only swift and impartial disqualification of defectors would give “real teeth” to the Tenth Schedule.
Disqualification under the Tenth Schedule
- The Anti-Defection Law was passed in 1985 through the 52nd amendment to the Constitution. It added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat “the evil of political defections”.
- According to it, a member of a House 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; or
- 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.
Exceptions to the disqualification on the ground of defection (Two cases)
- 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. This exemption has been provided in view of the dignity and impartiality of the office.
Powers of Speaker with regard to Anti-Defection Law
- Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
- After Kihoto Hollohan versus Zachilhu case (1993), the Supreme Court declared that the decision of the presiding officer is not final and can be questioned in any court.
- It is subject to judicial review on the grounds of malafide, perversity, etc.
Speaker and Issue of Impartiality
- The office of Speaker has been criticised time and again for being an agent of partisan politics especially in context of power for the disqualification.
- 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 the Kihoto Hollohan versus Zachillhu 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).
Range of the provision of the Anti-defection Law
- The provision was not limited to confidence motions or money bills (which are quasi-confidence motions).
- It applies to all votes in the House, on every Bill and every other issue.
- It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government.
- Therefore, an MP (or MLA) has absolutely no freedom to vote their judgement on any issue.
- They have to blindly follow the direction of the party. This provision goes against the concept of representative democracy.
How Anti-defection law turns MP/MLAs to a agent of another party?
- There are two broadly accepted roles of a representative such as an MP in a democracy.
- One is that they are agents of the voters and are expected to vote according to the wishes and for the benefits of their constituents.
- The other is that their duty to their constituents is to exercise their judgement on various issues towards the broader public interest.
- In this, they deliberate with other MPs and find a reasonable way through complex issues.
- The anti-defection law turns the concept of a representative on its head.
- It makes the MP neither a delegate of the constituency nor a national legislator but converts them to be just an agent of the party.
A Missing link in India
- Look at the contrast with other democracies.
- For example, in the vote on the impeachment of former U.S. President Donald Trump, seven members from his party in the U.S. Senate, the Republicans, voted to convict him. Such a decision does not have any legal repercussion.
- Of course, the party may take action (it did not). Also, voters may decide to reject the legislator for re-election and that is the core design element of representative democracy.
- The legislator is accountable to voters, and the government is accountable to legislators.
- In India, this chain of accountability has been broken by making legislators accountable primarily to the party.
- This means that anyone from the party having a majority in the legislature which is, by definition, the party forming the government is unable to hold the government to account.
- Further, all legislators have a ready explanation for their voting behaviour: they had to follow the party’s direction.
- This negates the concept of them having to justify their positions on various issues to the people who elected them to the post.
The Anti-defection law fails to provide stability
- The political system has found ways to topple governments by reducing the total membership through resignations.
- In other instances, the Speaker usually from the ruling party has delayed taking a decision on the disqualification.
- The Supreme Court has tried to plug this by ruling that the Speaker has to take the decision in three months, but it is not clear what would happen if a Speaker does not do so.
- The premise that the anti-defection law is needed to punish legislators who betray the mandate given by the voters also seems to be flawed.
- We have seen many of the defectors in States such as Karnataka and Madhya Pradesh being re-elected in the by-polls, which were held due to their disqualification.
SOURCE: THE HINDU