Anti-defection law- Faces a new threat
In news:
After the assembly elections in 2014, a troubling situation has emerged in Andhra Pradesh and Telangana. As of date, 27 legislators are alleged to have defected from various parties to the ruling Telangana Rashtra Samiti (TRS) since 2014. The speaker, S Madhusudhana Chary, himself a member of the TRS, has not taken any decision on the disqualification petitions filed against these MLAs over these three years. Likewise, in Andhra Pradesh, the Telugu Desam Party (TDP) in power has been able to get 21 MLAs from the Yuvajana Shramika Rythu Congress Party (YSRCP) to defect to it, without suffering disqualification. Here too, Speaker Kodela Siva Prasada Rao, a member of the TDP, has taken no decision on the disqualification petitions.
The question that “does the Tenth Schedule, in its present form, strike the right balance between the freedoms of the legislator and the need for respecting democratic mandates and processes?” has emerged again.
In news:
After the assembly elections in 2014, a troubling situation has emerged in Andhra Pradesh and Telangana. As of date, 27 legislators are alleged to have defected from various parties to the ruling Telangana Rashtra Samiti (TRS) since 2014. The speaker, S Madhusudhana Chary, himself a member of the TRS, has not taken any decision on the disqualification petitions filed against these MLAs over these three years. Likewise, in Andhra Pradesh, the Telugu Desam Party (TDP) in power has been able to get 21 MLAs from the Yuvajana Shramika Rythu Congress Party (YSRCP) to defect to it, without suffering disqualification. Here too, Speaker Kodela Siva Prasada Rao, a member of the TDP, has taken no decision on the disqualification petitions.
The question that “does the Tenth Schedule, in its present form, strike the right balance between the freedoms of the legislator and the need for respecting democratic mandates and processes?” has emerged again.
A new threat to anti-defection law:
The events in Telangana and Andhra Pradesh show that the anti-defection law faces a new, devastating threat. The speakers in these two states refused to perform their constitutional duties under the law by not taking a decision as to the disqualification of a member of legislative assembly (MLA) within reasonable time. This means that an MLA, who has otherwise violated the Tenth Schedule by “defecting” to another political party, will not suffer the legal consequence of disqualification for such “defection,” but instead will continue to enjoy her seat. This effectively renders the anti-defection law irrelevant. This new modus operandi to defeat the anti-defection law seems to avoid any possible judicial review.
The events in Telangana and Andhra Pradesh show that the anti-defection law faces a new, devastating threat. The speakers in these two states refused to perform their constitutional duties under the law by not taking a decision as to the disqualification of a member of legislative assembly (MLA) within reasonable time. This means that an MLA, who has otherwise violated the Tenth Schedule by “defecting” to another political party, will not suffer the legal consequence of disqualification for such “defection,” but instead will continue to enjoy her seat. This effectively renders the anti-defection law irrelevant. This new modus operandi to defeat the anti-defection law seems to avoid any possible judicial review.
About anti-defection law:
The (Fifty-Second Amendment) Act, 1985 introduced the Tenth Schedule to the Constitution. The ostensible reason for the introduction of the Tenth Schedule was to curb the so-called “aaya-ram-gaya-ram” practices of Indian legislators. The inspiration for this moniker is said to be Gaya Lal, a Haryana MLA who changed parties thrice in the space of one fortnight in 1967 while retaining his seat as an MLA. Defections thereafter reached such epidemic proportions that the stability of some state governments was always in question, distracting from any semblance of good governance. The Tenth Schedule was offered as the solution to this issue. However, In its 32 years of existence, political parties and legislators have come up with creative ways of avoiding the rigours of the law.
The (Fifty-Second Amendment) Act, 1985 introduced the Tenth Schedule to the Constitution. The ostensible reason for the introduction of the Tenth Schedule was to curb the so-called “aaya-ram-gaya-ram” practices of Indian legislators. The inspiration for this moniker is said to be Gaya Lal, a Haryana MLA who changed parties thrice in the space of one fortnight in 1967 while retaining his seat as an MLA. Defections thereafter reached such epidemic proportions that the stability of some state governments was always in question, distracting from any semblance of good governance. The Tenth Schedule was offered as the solution to this issue. However, In its 32 years of existence, political parties and legislators have come up with creative ways of avoiding the rigours of the law.
Loophole in the law:
Non-Partisan Speaker – By a narrow majority of three to two, a Constitution Bench held in the Kihoto Hollohan case that the Tenth Schedule was largely valid, but read down paragraph 7 which tried to exclude judicial review of the speaker’s decision on disqualification.
Non-Partisan Speaker – By a narrow majority of three to two, a Constitution Bench held in the Kihoto Hollohan case that the Tenth Schedule was largely valid, but read down paragraph 7 which tried to exclude judicial review of the speaker’s decision on disqualification.
The minority judgment raised concern about its reliance on the position of the speaker to make an impartial adjudication when the post clearly was a partisan one. Subsequent years have proved the minority judgment right as speakers have only become more partisan.
The speakers’ inaction in both the states is the latest manifestation of the underlying problem highlighted by the minority judgment in the Kihoto Hollohan case — the partisan role of the speaker.
The key question in the above case is whether a high court or the Supreme Court can order the speaker to take a decision on such disqualification petitions.
Fixing the anti-defection law:
It is perhaps time to reconsider the anti-defection law.
The anti-defection law should be restricted only to votes on the budget and confidence/no-confidence motions. Simply voting against the party whip should not be a sufficient cause for disqualification.
The disqualification in case of defection should be as a matter of course and not involve any discretion or decision-making on the part of the speaker.
While the Supreme Court has placed much faith in the neutrality and sanctity of the office of the speaker, the reality is that the office is increasingly becoming partisan. Thus, the role ole of the speaker under the law should be carefully scrutinized.
The key question in the above case is whether a high court or the Supreme Court can order the speaker to take a decision on such disqualification petitions.
Fixing the anti-defection law:
It is perhaps time to reconsider the anti-defection law.
The anti-defection law should be restricted only to votes on the budget and confidence/no-confidence motions. Simply voting against the party whip should not be a sufficient cause for disqualification.
The disqualification in case of defection should be as a matter of course and not involve any discretion or decision-making on the part of the speaker.
While the Supreme Court has placed much faith in the neutrality and sanctity of the office of the speaker, the reality is that the office is increasingly becoming partisan. Thus, the role ole of the speaker under the law should be carefully scrutinized.
Conclusion:
The above changes are necessary since what has taken place in Telangana and Andhra Pradesh is probably being watched with interest by political parties around the country. Given that most ideas concerning governance in India, good or bad, have travelled from the states to the centre, the day may not be far when the central government is formed through an illegitimate majority gained only by flagrant violation of the Tenth Schedule.
The above changes are necessary since what has taken place in Telangana and Andhra Pradesh is probably being watched with interest by political parties around the country. Given that most ideas concerning governance in India, good or bad, have travelled from the states to the centre, the day may not be far when the central government is formed through an illegitimate majority gained only by flagrant violation of the Tenth Schedule.
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