ThIrty-four years after the Rajiv Gandhi-led Congress government piloted the anti-defection law to check ‘Aaya Ram Gaya Ram’ phenomenon of Indian politics, the party has lost 12 of its 18 MLAs in Telangana to the ruling TRS. Call it an irony or a mere coincidence, the party behind the anti-defection law has become a victim of the political defection.
Speaker P Srinivas Reddy on Thursday accepted the request of the 12 defecting MLAs to merge with the TRS as they constituted
two-thirds of the total strength of the Congress legislature party.
The defections have raised questions over desirability and usefulness of this law in checking political defections. The development has also exposed the limitations of law as a tool to solve a purely political problem.
Added to the Constitution through the 52nd Amendment, the Tenth Schedule envisages two circumstances when a lawmaker can be disqualified: one, if he/she voluntarily gives up membership of a party; two, when he/she votes (or abstains from voting) contrary to the directive issued by the party. But the law has often hit headlines for its misuse just before the crucial trial of strength in a House.
The Supreme Court's 1994 ruling in the Ravi Naik versus Union of India has made things worse for those opposing their own party's policies while retaining membership of the House as it ruled that "Even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs."
Ironically, if a lawmaker is expelled by his/her party, he/she can still retain his/her membership of the House. This is due to the Supreme Court's ruling in the G Viswanathan versus Hon'ble Speaker, Tamil Nadu State Assembly (1996) that said an expelled lawmaker is bound by his/her party's whip even after expulsion. It said failure to obey the whip would result in his/her disqualification from the House. "Paragraph 2(1) read with the explanation (of the Tenth Schedule) points out that an elected member shall continue to belong to that political party by which he was set up as a candidate for election as such member. This is so notwithstanding that he was thrown out or expelled from that party,” ruled the top court. The issue has since been referred to a Constitution Bench in Amar Singh’s case.
Originally, the Tenth Schedule recognised a 'split' in a legislature party if at least one-third members formed a new group or joined another party. But, after the 91st Amendment (2004), the law recognises a 'merger' that requires at least two-thirds members of a legislature party to join another one or form a new one without falling foul of the anti-defection law.
There are many problems with the Tenth Schedule. On the face of it, the law appears to violate Articles 105 and 194 which guarantee free speech to MPs/MLAs in the House. In the changed scenario, the Supreme Court needs to reconsider its decision in Kihoto Hollohan vs Zachillhu and Others (1991) in which it said, "The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct…above certain theoretical assumptions.”
Politics has its own ways of finding solutions to problems. The legal intervention of ant-defection law has hindered that natural political process. While attempting to solve the problem of political defections, it has created many other complications.
The experience of last 34 years shows that the Tenth Schedule has failed to solve the problem of political defections. On the contrary, it has been misused by political parties to keep their flock together. Parties often misuse it against lawmakers raising legitimate questions concerning their party's stand on issues they are uncomfortable with. In a way, it has smothered inner-party democracy and has been proved to be conscience killer for many vocal MPs/MLAs.
The role of Speaker — who is supposed to be an impartial arbiter — has rarely been above board, attracting judicial scrutiny. Be it Goa, Tamil Nadu, Uttarakhand, Arunachal Pradesh or Karnataka - Speakers' decisions have invariably faced judicial scrutiny. No wonder, the SC ruled that the Speaker's decision was subject to judicial review.
What's the way out? Should anti-defection law be scrapped? Should it be used only during confidence motions as suggested by the Dinesh Goswami Committee on Electoral Reforms (1990) and the Law Commission in its 170th Report (1999)?
The Constitution Review Commission headed by Justice MN Venkatachaliah (2002) had recommended that instead of the Speaker, decisions on disqualification of lawmakers should be taken by the President or the Governor — as the case may be — on the Election Commission's advice, as in the case of disqualification on grounds of office of profit.
Alternatively, a tribunal can be created to deal with such cases.
But even if the law remains on the statute book, Rajya Sabha Chairman M Venkaiah Naidu's suggestion that cases of political defections must be disposed of by courts and presiding officers within a specific time frame is worth implementing.
from The Tribune http://bit.ly/2wHOfoG
via Today’s News Headlines
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