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Q 50- Do you believe the time has come for Parliament to reconsider entrusting disqualification petitions under the Anti-Defection Act to the Speaker? Examine in the context of recent events. (250 words)

  • Paper & Topic: GS II à Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.

 

  • Model Answer:

 

  • Introduction:

 

  • Defection is defined as "a member of a political party abandoning his or her commitment to that party" or, more simply, "when an elected representative joins another party without resigning from his or her current party in exchange for rewards."
  • Defection is the institutional malaise, and switching parties is state-neutral, party-neutral, and politics-neutral.
  • The Anti-Defection Law was enacted in 1985 as part of the 52nd Amendment to the Indian Constitution, which added the Tenth Schedule.
  • The law's principal goal was to counteract "the evil of political defections," which could occur as a result of a payment for office or other comparable factors.
  • Both Parliament and state legislatures are subject to the statute.
  • However, there are a number of concerns with how this law operates.

 

  • Body:

 

  • Some sitting MLAs in the Manipur administration recently switched to the opposition, causing political uncertainty in the state. This defection politics in Manipur is not unusual; defections have also occurred recently in Karnataka, Madhya Pradesh, Arunachal Pradesh, and Uttarakhand.

 

  • Background:

 

  • Political defections by members of the legislature have influenced the Indian political system for a long time. The political system became more unstable and chaotic as a result of this predicament.
  • In 1985, the 52nd constitution amendment act on anti-defection was passed, and the 10th Schedule was inserted to the Indian Constitution to combat the evil of political defections.
  • The 91st Constitution Amendment Act of 2003 was adopted with the goal of reducing the size of the Council of Ministers, prohibiting defectors from holding public office, and strengthening anti-defection legislation.

 

  • Current Anti-defection legislation has the following flaws:

 

  • Anti-defection legislation has failed to prevent "horse trading" and defection, resulting in the overthrow of governments due to the machinations of corrupt legislators.
  • For example, in Karnataka, 17 members of the coalition government resigned, resulting in a government change. Later, the 17 MLAs ran for the party that established the new administration.
  • Individual defections are prohibited by law, but bulk defections are not.
  • For example, the Congress administration in Madhya Pradesh lost its majority due to MLA resignations.
  • Against the genuine spirit of representative democracy: The anti-defection law aims to maintain government stability by preventing legislators from switching sides.
  • This statute, however, prohibits legislators from voting in accordance with their conscience, judgment, and the interests of their constituents.
  • Impairs legislative supervision of government: The anti-defection statute obstructs the legislature's oversight duty over the government by guaranteeing that members vote based on party leadership decisions.
  • In other words, if parliamentarians are unable to vote on legislation independently, they will be unable to serve as an effective check on the administration.
  • In effect, the Anti-Defection Law weakens the separation of powers between the Executive and the Legislature, concentrating power in the hands of the executives.
  • The presiding officer of the House has the authority to disqualify parliamentarians on the basis of defection by the Presiding Officer of a legislature in response to a petition from any other member of the House.
  • However, there are other cases in which presiding officials serve the entrenched interests of a ruling political party or government.
  • Furthermore, the statute makes no provision for the Presiding Officer to make a decision on a disqualification plea within a specific time frame.
  • As a result, the ruling is sometimes reliant on the presiding officer's whims and fancies.
  • Has an impact on debate and discussion: In India, the Anti-Defection Law has created a democracy based on parties and numbers rather than debate and discussion.
  • It makes no distinction between dissent and defection in this way, weakening Parliamentary debates on any measure.

 

  • Speaker's Authority ruling by the Supreme Court:

 

  • The Supreme Court's recent judgment on the Speaker as the adjudicating authority under the anti-defection law has two major implications.
  • The first is that Parliament should appoint a "permanent tribunal" or external mechanism to make speedy and impartial verdicts on defection cases in place of the Speaker.
  • Few would argue with the Court's assessment that initial concerns and misgivings regarding Speakers' impartiality had been realized.
  • The second is its remarkable finding that a major question referred to a Constitution Bench by another Bench in 2016 was superfluous.
  • The question before a bigger Bench is whether courts have the authority to order Speakers to decide disqualification petitions within a set time frame.
  • The issue arose because numerous presiding officers have permitted defectors to increase the strength of ruling parties and even be sworn in as Ministers simply by refusing to hear accusations against them.
  • Defections in large numbers have occurred in some states shortly after elections.
  • Speakers have been intentionally breaking the law, believing that no court would question the delay in disposing of disqualification cases as long as the matter was ongoing before a Constitution Bench. This has aided the ruling party, which is generally the one that helped them get to the Chair.
  • It is past time for Parliament to reconsider whether disqualification petitions should be entrusted to a Speaker as a quasi-judicial authority while the Speaker remains a de jure or de facto member of a political party.
  • Restriction on the Speaker's discretion: According to a recent Supreme Court ruling, the Speaker must make a decision on disqualification within three months of receiving the application. It cannot be the Speaker's decision to take no action.

 

  • Steps to take:

 

  • The Speaker's decision to exclude a legislator is based on the Speaker's institution.
  • In many states, the Speaker's partisan position has ensured that turncoat politicians remain genuine members of the House.
  • Various commissions, including the National Commission to Review the Workings of the Constitution (NCRWC), have recommended that, on the advice of the Election Commission, the President (in the case of MPs) or the Governor (in the case of MLAs) make the decision to disqualify a member rather than the Presiding Officer.
  • Independent disqualification committee: In the Hollohan decision, Justice Verma stated that the Speaker's tenure is contingent on the continued support of the House majority, and hence he does not meet the criteria of such independent adjudicatory authority.
  • Furthermore, his selection as the only arbitrator in the case breaches a fundamental characteristic of the basic feature.
  • As a result, an impartial body to deal with incidents of defection is required.

 

  • Conclusion:

 

  • This is an opportune opportunity to follow the advise of eminent constitutional experts and revise the anti-defection law to provide an autonomous body the power to dismiss turncoats.
  • The court has thus established a window for judicial involvement in circumstances when Speakers refuse to act, as "failure to exercise jurisdiction" is now a recognized stage at which the court might interfere.
  • This bodes well for the text and spirit implementation of the legislation prohibiting desertion.
  • In light of Speakers' partisan behavior, the report recommends that Parliament change the Constitution to create a permanent tribunal to hear issues under the 10th Schedule.
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