Insights into Editorial: Disqualification moves
On December 4, the Chairman of Rajya Sabha disqualified two Members of Parliament (MPs) from the House under the Tenth Schedule of the Constitution (better known as the anti-defection law) for having defected from their party. These members were elected on a Janata Dal (United) ticket.
The orders of the Chairman have established a benchmark, both in terms of speedy disposal as well as the quality of the decisions.
Allegations of legislators defecting in violation of the law have been made in several other states including Andhra Pradesh, Arunachal Pradesh, Goa, Manipur, Nagaland, Telangana and Uttarakhand in recent years.
Objective of Anti-defection law:
The objective of the landmark anti-defection law of 1985 was to enhance the credibility of the country’s polity by addressing rampant party-hopping by elected representatives for personal and political considerations.
What is the anti-defection law?
Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA changed his party thrice within the same day in 1967. The anti-defection law sought to prevent such political defections.
The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
- A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership (whip) on a vote.
- This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
- As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorised person within 15 days of such incident.
- The decision on question as to disqualification on ground of defection is referred to the Chairman or the Speaker of such House, and his decision is final.
- The law applies to both Parliament and state assemblies.
Exceptions under the law:
Legislators may change their party without the risk of disqualification in certain circumstances.
The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
How has the law been interpreted by the Courts while deciding on related matters?
The Supreme Court has interpreted different provisions of the law.
- The law provides for a member to be disqualified if he/she ‘voluntarily gives up his membership’. However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.
- In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.
In the case of the two JD(U) MPs who were disqualified from Rajya Sabha on December 4th, they were deemed to have ‘voluntarily given up their membership’ by engaging in anti-party activities which included criticizing the party on public forums on multiple occasions, and attending rallies organised by opposition parties in Bihar.
Decision of the Presiding Officer is subject to judicial review
The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court. However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
In 2015, the Hyderabad High Court, refused to intervene after hearing a petition which alleged that there had been delay by the Telangana Assembly Speaker in acting against a member under the anti-defection law.
The Chairman is required either to proceed to determine the question himself or refer it to the committee of privileges for a preliminary inquiry. But reference to the committee is contingent upon the Chairman satisfying himself that it is necessary or expedient to do so; it is not mandatory.
As a matter of fact, in several cases in the past, the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha, whenever “the circumstances of the case” so warranted, have “determined the question” themselves, without referring it to the committee.
Is there a time limit within which the Presiding Officer has to decide?
The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea. Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.
There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions. In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House.
There have also been instances where opposition members have been appointed ministers in the government while still retaining the membership of their original parties in the legislature.
In Andhra Pradesh, legislators of the main opposition party recently boycotted the entire 12-day assembly session. This boycott was in protest against the delay of over 18 months in action being taken against legislators of their party who have allegedly defected to the ruling party.
The Vice President, in his recent order disqualifying two JD(U) members stated that all such petitions should be decided by the Presiding Officers within a period of around three months.
Does the anti-defection law affect the ability of legislators to make decisions?
The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue. Several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions).
The significance of recent decision of Vice President
Vice President’s orders assume significance in the context of instances where members have switched sides and became ministers in the governments, which are formed by parties against whom they contested and won.
The chairman of Rajya sabha(Vice President) declared that those two defected had ceased to be members of the Rajya Sabha with immediate effect on account of having incurred disqualification under Tenth Schedule to the Constitution.
The orders of the Chairman have established a benchmark, both in terms of speedy disposal (about three months) as well as the quality of the decisions. Since the anti-defection law came into place, there have been a large number of cases where proceedings have dragged on for years.
While delivering the order, Chairman made it clear that while dissent is a political right, it should be articulated appropriately without striking at the roots of the functioning of the party-based democratic system.
The defection cases should not be kept pending and dragged on by the Presiding Officers, with a view to save the membership of the persons, who have otherwise incurred disqualification or even to save the Government, which enjoys majority only because of such type of persons.
All such petitions should be decided by the Presiding Officers within a period of around three months by giving an opportunity to the concerned Members (Seven days of time as per the Rule 7(3) of the Members of Rajya Sabha) against whom there are allegations, which lead to their disqualification under the Tenth Schedule to the Constitution of India so as to effectively thwart the evil of political defections, which if left uncurbed are likely to undermine the very foundations of our democracy and the principles which sustain it.