Tuesday, March 19, 2024
spot_img

TRIBUNAL PERMANENT REMEDY

Date:

Share post:

spot_img
spot_img

Chronic Defections

 

 

By Dr S Saraswathi

 

The Supreme Court is indeed forced to make a rather drastic recommendation that Parliament should by an amendment of the Constitution add a provision in the Tenth Schedule to constitute a permanent tribunal to decide cases of defection of MPs and MLAs.  For the present,  it  has  directed   that  the Speaker, who is  acting as a tribunal,  should  decide on  disqualification petitions  “within a reasonable time”  and fixed  an outer limit of three months from the date of filing of  the petition. 

The judgment is given in a case relating to a Congress MLA in Manipur Assembly who joined BJP and also became a Minister when BJP formed government in 2017. The Speaker had not taken any decision on dozens of petitions received by him seeking the member’s disqualification for defection.

This is in sharp contrast to the speed with which  the  Karnataka Speaker recently  not only   disqualified one  Congress and another  JD(U) member  who gave up their party membership,  but also   barred  them  from contesting  election  during  the remainder of their term.

Ever since the Anti-Defection provisions were added as the Tenth Schedule in the Constitution, courts   are flooded with cases involving judicial review of decisions of Speakers on migration of MPs and MLAs from party to party inviting interpretation and application of the law. Defections have grown as a chronic political disease in our parliamentary democracy and certainly require a permanent remedy. A standing   tribunal is likely to find its hands full to deal with growing number of cases throughout the year.  It will also  lessen  the  burden on the overburdened  SC. As more and more laws are enacted and rules under the laws and court directives increase, more litigations are bound to come up leading to delay in  judgements  whereas issues have time-bound existence.

The question of Speaker’s powers to decide disqualification of members and the power of intervention by the court are important constitutional issues that have faced contrasting court verdicts. Setting  up  a larger Bench of five judges recommended by the Court  in 2016  to go into this  has not yet materialised.  In this background, the recommendation for a permanent tribunal is made by the SC.

“It is time that Parliament has a rethink on whether disqualification petitions ought to be entrusted to the Speaker as an impartial quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto”, stated the judgement.  It questioned the necessity to conduct the disqualification proceedings in-house when removal of judges is handled outside the judiciary. 

The problem of political  defection has been enlarged and transformed as a constitutional issue of  Speaker’s rights and also judiciary’s role vis-à-vis the legislative body.

Unlike the Speaker of the House of Commons in Britain, the Speaker in India is not required to resign from his party.  The first Speaker Mavalankar considered adopting the British convention of uncontested election of  the Speaker and his/her  independence from party affiliation, but it was not acceptable to political parties in India  and given up.  There is no continuity in the office of Speaker who is elected by members among themselves.

Rather,  a convention of  granting the post of Speaker to the ruling party and that of Deputy Speaker to the main Opposition  Party has found favour with all parties and also broadly followed. In the politics of alliances,   these posts,   like ministries and chairmanship of some  important  boards,  are among the   items in top-level  negotiations  conducted  for concluding sharing formula   among  the allies. 

The practice of entrusting decisions on defections and disqualifications in the office of  the  Speaker  has enhanced the power and influence of the Speaker.  This development is linked with increase in the number of political parties and establishment of “coalition governments” and constant efforts for “opposition unity”.  Government formations and dismissals have come to depend much on mobilising support of elected members more than voters. The context providing the incentive for engineering defections, the office of the Speaker is growing in importance. His role both in Parliament and State legislatures goes beyond what was envisaged in the Constitution.

Executing the Anti-Defection  Law  in letter and spirit is stressed by the SC as vital to the functioning of democracy.   It is for  achieving this,  it   suggested that  a  tribunal under a retired judge of the SC or Chief Justice of a High Court  or some similar independent  body  should handle defection cases because of doubts raising over the impartiality of Speakers and to speed up decision-making.   The inordinate delay made by Speakers on several cases when the term of the legislative body is fixed as five  years  has already  nullified  the effectiveness of the law. Nariman’s  Bench  this time  was for Court’s intervention when the Speaker delayed decision inordinately. It is a way of assisting the Speaker to arrive at a quick decision provided political interests are kept away. His contention is that the previous judgement did not prohibit judicial intervention to assist the Speaker.

What happened in Tamil Nadu  in 2017 after Jayalalitha’s demise best illustrates the latent  power of the  Speaker  in deciding the fate of governments.  Disqualification of 18 dissident AIADMK MLAs by the Speaker reduced the strength of the House and thereby helped the party to retain power. Lack of confidence in the Chief Minister expressed by the dissident members was interpreted as “voluntarily giving up” their party membership.   The Speaker’ decision received the approval of the courts and ended in bye-election for vacated seats.  A  similar case in Karnataka of disqualification of 11 BJP legislators was upheld by the High Court. 

The present  court ruling has a chain effect and already, the DMK has sought urgent hearing of its plea for disqualification of 11 AIADMK  MLAs  including the Deputy.CM  of Tamil Nadu who voted against Tamil Nadu government on the  confidence motion in 2017 when that party was undergoing a deep split within. In April 2018, the Madras High Court rejected the petition and decided to wait for the verdict of the Supreme Court on the powers of the court to issue directions to the Speaker. The DMK’s appeal to the Supreme Court is now in the apex Court.  

 Whether urgent hearing  of this case will take place or  the recommendation for constituting a permanent tribunal will move ahead  is to be settled now.  The  decision on this will have multiple consequences – direct and indirect. It will help determine the powers of the Speaker, and also the limits of judicial review of Speaker’s decision.  Indirectly,  it will impact the political party influence on the functioning of Speakers who cannot disassociate themselves from their political  affiliations  for the sake of an office for a limited term.

The Speaker’s stand and judicial delay have been deciding survival and breakdown of governments following defection of members. Tightening the system and procedures are not normally welcomed by contesting parties who benefit by flexibility and take advantage of loopholes. The Supreme Court hopes for   speedy and impartial decisions from an independent tribunal.  We have to wait and hope.—INFA

( The writer is former Director, ICSSR, New Delhi)

 

spot_img
spot_img

Related articles

EX-Pak cricketer Javed Miandad acknowledges family ties with Dawood Ibrahim

New Delhi, March 19:  Former Pakistani cricketing legend Javed Miandad has openly accepted his association with underworld don...

Israeli soldier killed in Gaza’s Al-Shifa hospital raid

Shillong, March 19: An Israeli soldier was killed during the Israeli army's raid on the Al-Shifa complex in...

Explosive material found near Bengaluru school

Shillong, March 19: The police seized explosive material from a vacant land near a private school in Bengaluru...

WCCB-Aaranyak trains airlines staff in LGBI Airport to detect illegal wildlife products

  Guwahati, March 19: As the global cartel of illegal trade wildlife is showing increasing tendency to take the...