Is the Anti-defection Law failing to deliver?

by April 21, 2019 0 comments

Defections have continued despite the implementation of the Anti-Defection Law. It is now up to the next House to review the law to strengthen our democracy

Our parliamentary system is largely modelled on the Westminster order — relevant provisions of the Constitution being quite similar to those contained in the chapters on Federal and Provincial Legislatures in the Government of India Act, 1935. Sir Samuel Hoare, the then Secretary of State for India, had piloted this Bill in the House of Commons in 1935.

The institution of our Speaker is a takeoff from this model, which is inspired by the Speaker of House of Commons. Being the guardian and the custodian of the House, he/she occupies a very exalted position. It is well within his powers to guide the Parliament and give direction to our democracy. Elaborating on the persona of the Speaker, GV Mavalankar, the first Speaker of the Lok Sabha, had this to say, “Once a person is elected a Speaker, he is expected to be above parties and politics. In other words, he belongs to all the members and at the same time belongs to none. He holds the scales of justice evenly, irrespective of the party or person. As a human being, he has his human drawbacks and shortcomings, however, everybody knows that he will intentionally do no injustice or show partiality. Such a person is naturally held in respect by all.”

These high ideals set for a Speaker have mostly been met but as we are all aware, the real test of the mettle only comes when one is faced with a challenge. Difficult decisions are never easy to make and these days it appears that quite often one has taken the easy way out, sometimes even inconsistent with the dignity of the high office. Such a perception will not only lower respect for the individual, but also question for all time his even one transgression of ethics and norms.

The situation has become more acute ever since the powers of adjudication were assigned to the Speaker under the Anti-Defection Law. While taking decisions under this law many a time, they may have served the party well, but in the process, they have come out of such episodes ‘bruised’ and may be sometimes even ‘tainted’.

But what makes the Anti-Defection Law so complicated for the Speaker needs a closer look. A path-breaking feature of this Act was that for the first time, a political person, the Speaker or the Chairman of the House, was made to adjudicate and administer this Act. Hitherto, the role of the Speaker was limited to regulating and adjudicating on Parliamentary proceedings, which are insulated by Articles 122 and 212 of the Constitution. In respect of the Parliament and Legislative Assemblies, these articles restrict the role of the courts from judging the validity of the proceedings on grounds of alleged irregularity of procedures.

However, after the Supreme Court’s judgement in Prakash Singh Badal’s case, proceedings under the Anti-Defection Law were made justiciable. While supporting the new role of the Speaker, the apex court in the Kihota Hollohon case also observed that it was the appropriate forum under the Anti-Defection Law and further added, “Accordingly, we hold that the vesting of adjudicatory functions in the Speakers/Chairmen would not by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speaker/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 take far reaching decisions in the functioning of Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such constitutional functionaries should not be considered exceptionable.”

On the other hand, the minority view in this case thought that assigning powers of adjudication to the Speaker was against the basic structure doctrine and the separation of powers between the Judiciary, Legislature and the Executive.   Further, it was contemplated that adjudication of such disputes should be by an independent authority outside the House, namely President/Governor in accordance with the opinion of the Election Commission, all of them being high Constitutional functionaries.

Chief Justice MN Venkatachaliah had upheld the cause of the Speaker in his majority judgement in this case, while a few years later, as the Head of the Commission to review the working of the Constitution, he supported the Election Commission route for the Xth Schedule (Anti Defection Law), which, however, remained unaccepted.

Today, the ground situation is such that till the time the actual proceedings under the Xth Schedule are not initiated, the matter of defection virtually remains a function of Articles 212 and 122, where the courts have virtually no jurisdiction. The moment the proceedings under the Schedule are taken up, the role of the Speaker changes to that of an adjudicator and can be taken cognizance of by the appropriate courts. The result is that in certain cases, proceedings have got inordinately delayed only to circumvent the judicial process.

There have been several instances where the role of the Speaker has come under scrutiny. Among the recent ones are the continuing imbroglio in Tamil Nadu from 2017 onwards and the cases of Andhra and Telangana where proceedings against the defectors had remained pending for a very long time. While Andhra Pradesh has now gone to the polls, a new Telangana Assembly was constituted in December last year, in a way, making the proceedings against the defectors virtually in fructuous. In fact, this trend had begun in Uttar Pradesh more than a decade ago, where sufficient breathing time had been given to the Government by delaying proceedings under the Anti-Defection Law. The indictment of the Karnataka Speaker by the Supreme Court is already well-known.

Instead of assigning the proceedings to an institution other than the Speaker, such aberrations can be easily addressed by amending the law. Besides covering defections, these could also include other variants mentioned in the Act, for instance, expulsions, voluntarily giving up membership and even splits and mergers. First, by fixing a time limit, within which such proceedings have to be mandatorily disposed of by the Speaker, would be a major step forward. Second, an amendment needs to be brought in to provide for all types of defectors, whether singly or in groups, to resign from their seats and contest fresh elections. They also need to be debarred from holding any public office of a Minister or any other office of profit, till their fresh election. Also, as recommended by the National Commission to review the working of the Constitution, the vote cast by a defector to topple a Government or to repose confidence in a new dispensation may be treated as invalid.

In order to save the high office of the Speaker from any embarrassment, there used to be a convention in the House of Commons where in the subsequent elections to the Parliament, no party fielded a candidate against him/her. Also, having resigned from the parent party, he/she would contest only as a Speaker. In case he/she was not re-contesting, usually, he/she would be elevated to the House of Lords. Some of these conventions have since been diluted but in our context need to be studied for strengthening the office of the Speaker and ensuring his/her neutrality.

Though the Anti-Defection Law was enacted to curb defections, they have continued. It would now be upon the members of the 17th Lok Sabha, which will get constituted by the end of next month, to review and effect changes in the law in a manner that will go a long way in strengthening our Parliamentary democracy.

(The writer is a former Governor of Meghalaya and Uttarakhand and a former Commissioner of Police, Delhi)

Writer: KK Paul

Courtesy: The Pioneer

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