ANTI-DEFECTION LAW: ANALYSIS OF THE ROLE OF SPEAKER




This article has been authored by Udisha Mishra, a second year law student at West Bengal National University of Juridical Sciences, Kolkata.


Introduction


Recent events in the Manipur Legislative Assembly have shown the flaws of the Indian Politics explicitly: complete contempt of electoral mandate, violation of the constitutional provisions which promised the republic a fair process throughout the legislative selections and protection against gross abuse of power. Yumnam Khemchand Singh, the speaker of the Manipur Legislative Assembly, fell flat to attend the motion paced by the assembly to disqualify or we can say declare ‘defected’ eight members of the assembly as per the Anti-defection laws of the country which are enshrined in the Xth Schedule of the Indian Constitution, defying the High Court directives and disregarding multiple Supreme Court orders. Defection laws are common in all democratic countries. The very basic idea behind such laws is to prevent ‘desertion of allegiance’ of legislators to the parties, from which they have contested seats maintaining stability and curtailing corruption in the legislative organ.


In India, the Anti-Defection laws were added by the fifty-second amendment brought in by the then Rajiv Gandhi government, placing them in the Xth schedule of the Constitution in the year 1985. The said schedule identifies two grounds for disqualification of the legislators


a) The legislator voluntarily gives up his membership or

b) The legislator either votes or abstains from voting against the directions given by the party to which he belongs


This category of laws is applicable to both, state assemblies as well as both houses of the parliament for the disqualification of the members so as to strengthen the democracy. The laws delegate the ‘presiding officer’ of the mentioned assemblies with unrestricted, unbound authority to decide on “any questions as to whether a member of the house has become subject to disqualification”. Thus, in these assemblies, the decision of the speaker or chairman is final and binding in such matters regarding the disqualification of a member. The Supreme Court, in the landmark judgement of Kihoto Hollohan v. Zachillhu, made this ultimate power of the speaker or chairman subject to judicial review curbing any abuse of such constitutionally provided power. However, this intrusion by the apex court is subject to the fact that such case can only be reviewed by the court when a final decision on the issue has been provided by the speaker or the chairman. This caveat can be credited as the reason behind the current turmoil in the state of affairs in the Manipur Legislative Assembly. This absolute power of the chairman or the speaker has been a bone of contentions since its inception of the provision in 1985. This provision has been inappropriately misused by the power icons to promote corruption and further miscarriage of justice by upholding the agenda of the political party they belong to.


Violation of Provision in Manipur Assembly


After the 2017 Legislative election in Manipur, Governor Najma Heptulla called upon the BJP government to form the Manipur government, despite the fact that the Congress party gained the majority over the BJP government by seven seats and the BJP was 3 seats less to form the government.The BJP shaped an alliance government. Subsequent to framing a government, T. Shyamkumar of Congress deserted the party he belonged to and made allegiance to the BJP and was given a bureau position. Before long, seven more Congress MLAs left Congress and defected to the BJP. Notwithstanding, they kept being part of Congress officially and sat in the opposition in the assembly and but cast the votes for the ruling party. The Congress requested before the Speaker to disqualify these individuals under the arrangements of the Xth Schedule, but to their dismay, there was no furtherance on the issue by the speaker of the assembly. Subsequent to mulling over it for a long time, the Speaker further dismissed rehashed requests of the Supreme Court to decide the matter quickly. The Apex Court, utilizing its absolute powers, disqualified T. Shyamkumar and ‘reprimanded’ the Speaker in March 2020. Notwithstanding, seven individuals were still left unpenalized. To cure the circumstance, Congress moved the Manipur High Court to disqualify the other defected members of the assembly. The High Court requested the Speaker to decide and give a conclusive opinion regarding the issue as early as possible though after the Rajya Sabha political elections planned on 19 June 2020. The High Court banned the absconded individuals from casting a vote in the Rajya Sabha elections and furthermore restrained the disqualified individuals from entering the Manipur Legislative Assembly till the Speaker decides on the case. In another turn of events, three National People's Party, one Trinamool Congress MLA, one free MLA walked out of the assembly and four of the seven defected members of the assembly rejoined Congress.


The Speaker acknowledging the gravity of such walkout heard the various petitions of disqualifications. He exonerated the three members who refrained from joining the Congress and allowed them to vote in the assembly matters. This displays the gross abuse of power by the speaker who misused his authority and nonetheless, defied the directions given by the High Court to further the political agenda of his party defacing the constitutional morality.


Inadequacies of the Law


This turmoil erupting in the Manipur Legislative Assembly displays the disability of the anti-defection laws currently enacted in the country. A human mind is bound to have biases. The freshly elected legislators elect the Speaker of the assembly and hence in almost all the cases, the speaker is a member of the ruling party. It was expressly mentioned in the Kihoto Hollohan v. Zachillhu judgement as well that the “tenure of the speaker depends on the continuous support of the majority present in the house”. Though the speaker of the assembly is expected to be free from biases of any sort, just and fair, it cannot be denied that an inherent bias can creep in because of the previous political affiliations. This bias turns into gross injustice when the speaker misuses this power. This power stems from Paragraph 6 of the schedule that “empowers the speaker to be the decisive arbiter regarding any question pertaining to the disqualification of any member of the house” under Paragraph 2 of the schedule. Thus, in the garb of being just and fair, the speaker might espouse their political affiliations backhandedly. And ultimately, the decision of the ruling party hidden under the veil of the speaker becomes the rule. Though the apex court in Jagjit Singh v. State of Haryana stated that the decidion of the speaker is subject to judicial review, it expressly stated that it can be reviewed only one the basis of any procedulral lapses in question but not on merits. The apex court’s constitutional bench in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha gave an illustrative list of “jurisdictional errors” because of which the court can review the decision given by the spekar under the Paragraph 6 which are- “infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.”


Furthermore, the schedule or the provision enshrined provide no specific time period within which the question related to the disqualification of the members is to be decided. Nor this delay can be made subject to judicial review as the courts can only intrude to review when the speaker gives the final decision on the case, and there is the exhaustion of this remedy. This loophole in the text has been exploited by the speaker of various assemblies’ multiple times, but the Manipur crisis came into limelight for the very reason that the speaker abstained from attending the question of disqualification of members for a time span as long as two and a half years. While responding to the High Court, the Speaker cited Paragraph 6 of the schedule that empowers him with the discretion to decide upon the disposal of disqualification issues. Nevertheless, the apex court in the present case held that, “a failure to exercise jurisdiction vested in a Speaker cannot be covered by the shield contained in paragraph 6 of the Tenth Schedule, and that when a Speaker refrains from deciding a petition within a reasonable time, there was clearly an error which attracted jurisdiction of the High Court in the exercise of the power of the judicial review.” To conclude this, the court relied on the case S.A. Sampath Kumar v. Kale Yadaiah and Ors. where the same was upheld by the Supreme court.


The Supreme court opined that such loopholes and discrepancies that exist in the schedule should be removed. It asked the parliament to reanalyze the ‘quasi-judicial authority’ that exists with the speaker of the assembly enshrined in Paragraph 6 of the schedule, considering the fact that he belongs to a particular political party and may have his own biases owing to the affiliations. It suggested the parliament to frame a legal framework for establishing a “permanent tribunal headed by a retired Chief Justice of a High Court or a retired Supreme court Judge” or setting up any other independent body to resolve the disputes and answer questions relating to this disrupted Xth Schedule. As such problems as to the interpretation and working of this schedule aren’t being faced for the first time. In 2019 in Karnataka, 17 members of the legislative assembly defected from the Congress-JDS led alliance government to the BJP. The then assembly speaker, K.R. Ramesh Kumar not only disqualified them but also barred them from contesting elections till 2023. While deciding the case filed by the barred and disqualified member via petition, the apex court did hold the defection valid but declared the actions of the speaker to be ‘ultra vires’.


This event brings upon yet another question relating to the schedule. Neither the provision of the constitution itself nor any other statues in power bar the disqualified members from contesting elections. This loophole empowers them to win the seat back via re-elections crushing the goal of the fair and ideal process. The Karnataka speaker in order to refrain the defected members from using this defect for their benefit (in current case- to stand for relections), barred them from contesting elections which is not within his power to decide and is correctly stated ultra vires by the court.


Conclusion


Apparently, the best possible way to deal with the defects of the anti-defections law is abiding by the suggestion of the Supreme Court and establishing an independent body to deal with the affairs relating to the Xth Schedule. Further, such members should be barred from contesting election anytime in future so that they are not able to benefit themselves from such loopholes, avoiding mockery of the whole system. The provisions of the law are required to be made robust to as to prevent members circumventing for establishing a stronger democracy.

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