The article discusses the recent event in Madhya Pradesh where a group of legislatures resigned bringing down the government. A most important issue arising out such incidents is circumventing of the laws made to avoid such things from happening. Several such issues along with their solutions are described here.

What is the Tenth Schedule?

The Tenth Schedule was inserted in the Constitution in 1985. 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 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.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.

Is there any time limit to decide on the matter? 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.

New method to bypass the anti-defection law

The political activities in Madhya Pradesh represent a new method of bypassing the anti-defection law and toppling elected governments.

The government in Karnataka was brought down in July last year in a similar manner with 17 MLAs of the ruling coalition resigning and joining the BJP.

What method was used? Under this novel method, a set of legislators of the party in power is made to resign from the Assembly to reduce the total strength of the House enough for the opposition party to cross the halfway mark to form the government.

In the ensuing by-elections, the members who resigned were then fielded as ruling party candidates (most of whom have been re-elected in the case of Karnataka).

Exploiting the loophole in the Tenth Schedule

This method of mass defection circumvents the provisions of the Tenth Schedule of the Constitution (better known as the anti-defection law)

The tenth schedule prescribes the grounds for disqualification of legislators: voluntarily giving up party membership and voting or abstaining to vote against party directions.

Resignation is not mentioned as a ground for disqualification.

However, the Speaker in Karnataka disqualified them for the rest of the Assembly’s term, thereby barring them from contesting the by-polls.While the Supreme Court upheld the disqualification.It stuck down the bar from contesting by-polls.

In Madhya Pradesh, since the Speaker has accepted the resignation of the MLAs, the defectors can in any case contest the by-polls.

Damaging the underpinnings of democracyThe recurrence of this model of defection signals the exploitation of the inherent weaknesses of the anti-defection law.

While solo legislators jumping ship might have reduced now, “horse-trading” seems to have gone from retail to wholesale.

This threatens the underpinnings of India’s electoral democracy since such surreptitious capture of power essentially betrays the people’s mandate in a general election.

Kihoto case is an important case in relation to the anti-defection law

Context: In the arguments in the Supreme Court in the case related to the political crisis in Karnataka, advocate has cited the landmark judgment in Kihoto Hollohan vs Zachillhu And Others (1992), in which the court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.

What was the Kihoto Hollohan case?

The law covering the disqualification of legislators and the powers of the Speaker in deciding such matters became part of the statute book in 1985 when the Tenth Schedule to the Constitution was adopted.

A constitutional challenge to the Tenth Schedule was settled by the apex court in Kihoto Hollohan.

The principal question before the Supreme Court in the case was whether the powerful role given to the Speaker violated the doctrine of Basic Structure — the judicial principle that certain basic features of the Constitution cannot be altered by amendments by Parliament, laid down in the landmark judgment in Kesavananda Bharati vs State Of Kerala (1973).

What is the extent of the Speaker’s powers?

Paragraph 6(1) of the Tenth Schedule describes the Speaker’s sweeping discretionary powers: “If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.”

What did the Supreme Court rule in Hollohan?

The majority judgement:

The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.

The Schedule’s provisions were “salutory and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.”

Minority view:

The tenure of the Speaker, who is the authority in the Tenth Schedule to decide this dispute, is dependent on the continuous support of the majority in the House and, therefore, he does not satisfy the requirement of such an independent adjudicatory authority.

An independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of the democratic system which is a basic feature of our Constitution… [the Speaker’s] choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

Time to reframe the anti-defection law

In this context, it is important to examine whether the anti-defection law fulfils any purpose.

This law raises fundamental concerns regarding the role of a legislator in a parliamentary democracy.

Issues with the law: It denies the legislator the right to take a principled position on a policy matter and reduces her to an involuntary supporter of the whims of party bosses.

Challenge to the constitutionality: The constitutionality of the Tenth Schedule was challenged for violating the Basic Structure of Constitution with regard to parliamentary democracy and free speech.

Judicial review of the Speaker’s decision: The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) in a 3-2 verdict upheld the law while reserving the right of judicial review of the Speaker’s decision.

What are the shortcomings in the anti-defection law?

Restriction on the freedom of legislator: The anti-defection law, on the one hand, severely restricts the freedom of a legislator and makes her a slave of party whips.

Failure in preventing the horse-trading: On the other hand, it has not been able to meet its primary objective of preventing horse-trading and continues to be circumvented to bring down elected governments.

This calls for reforms that address concerns at both ends of the spectrum.

Following two are the solutions offered here. They are important from Mains point of view. As solutions are often asked for the pressing issues.

Dinesh Goswami Committee and other suggestion

Restrict the scope of the binding whip: For addressing the first issue, as the Dinesh Goswami Committee also suggested, the scope of the binding whip should be restricted to a vote of confidence.

For addressing the second issue, it is best to institutionalise the Karnataka Speaker’s decision to bar the defected members from contesting in the ensuing by-poll, if not for a longer period.

This will disincentivise MLAs from jumping ship. These reforms would require a constitutional amendment to the Tenth Schedule, an uphill task under the current circumstances.

Conclusion

We are facing a deeper challenge of the corrosion of India’s parliamentary system, for even in jurisdictions without such anti-defection laws, we do not see “horse-trading” and “resort politics”. Hence, beyond institutional fixes, we also need a popular articulation of an ethical politics that causes the public to shun such political manoeuvres.

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