Chronic Defections: Tribunal permanent remedy

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 judgement 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.



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