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Next House should fix bugs in anti-defection law

In line with the separation of powers, Articles 122 and 212 of the Constitution restrict the Courts from judging the validity of proceedings in Parliament or the State Legislature on grounds of alleged irregularity of procedure.

Dr KK Paul | New Delhi |

Defections emerged as a challenge to our Parliamentary democratic system for the first time in 1967, but it was only seventeen years later in 1985 that our Constitution was amended to address the problem. It is not as if efforts were not made, as almost every Lok Sabha from the fourth (1967-70) onwards did take up this matter but for various reasons could not take it to a logical end. The 52nd amendment of the Constitution introducing the Anti-Defection law as the Xth Schedule was passed in February 1985. In 2003, an amendment was made but certain vital issues continued to remain unaddressed. Since then several developments have taken place not only exposing the chinks in the legislation but also widening them, indicating that time is now ripe for a review of the Anti-Defection Law.

The fourth General Election held in 1967 was a landmark event in our electoral history. It was the last occasion that Parliamentary elections were held simultaneously with all State Legislatures. This pattern was broken due to some states going to the polls in mid-term after brief spells of President’s rule and the dissolution of the Lok Sabha ahead of its time in December 1970. Another important feature of the 1967 election was that the Congress party was able to form the government at the Centre with greatly reduced majority besides losing in several states across the country. These states had wafer-thin majorities in their legislatures leading to governments with very weak foundations. Sometimes the MLAs could not resist tempting offers from rival camps resulting in frequent changes in loyalty. The term Aya Ram Gaya Ram was much in use during this period with some MLAs changing their parties even twice in a day. Initially such conduct was laughed at but soon it came down to levels which could only be described as disparaging.

Disturbing as these developments were, it was also seen as a great challenge to our democracy. Parliament being already seized of the matter rose befittingly to the occasion, and in all seriousness while adopting a resolution on 8 December 1967. This resolution enabled the constitution of a high level committee to go into all aspects of the issue while recommending suitable measures. This committee chaired by the then Union Home Minister Y. B. Chavan had the best of constitutional experts and representatives from political parties, notable amongst them being H.N. Kunzru, M.C. Setalvad, C.K. Daphtary, Mohan Kumaramangalam and above all Jayaprakash Narayan. Union Law Minister P. Govinda Menon was also a member and had made submissions on behalf of the government.

With JP making significant contributions to the proceedings, the committee recommended amendment of Articles 102(1) (e) and 191(1) (e) of the Constitution, for the disqualification of defectors from the membership of the Parliament or the State Legislatures. But during discussions in Parliament this was diluted to debarring of the defector for a period of one year or till such time as he resigned his seat and got himself re-elected. This matter could not be taken to a logical conclusion as the fourth Lok Sabha was dissolved before its term in December 1970.

The matter was, however, taken up afresh in 1973 when the 32nd constitutional amendment bill was moved which included the original proposal of disqualification. As this bill had also lapsed, another bill was moved in 1978 after the government led by Janata party came to power.

After such a long journey of more than seventeen years, finally Articles 101 and 102 besides 191 and 192 were amended through the 52nd amendment in February 1985. But considering the importance of the matter, the Provisions as to Disqualification on Ground of Defection were appended as integral to the Constitution as its Xth Schedule.

A path-breaking feature of this Act was that for the first time an essentially political person, the Speaker or the Chairman of the House was made to adjudicate and administer this Act. Rajiv Gandhi defending this new role for the Speaker said in the House “we also thought that the operation of the bill should be quick so that there is no time in which horse trading can take place and there is no time for a problem to arise. That is why we have assigned this to the Chairman or the Speaker”. The Supreme Court also lent its support to this role of the Speaker as in the Kihota Hollohon case they observed this to be a appropriate forum and said “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 Venkatachaliah had upheld the cause of the Speaker in his majority judgment in this case while a few years later as head of the Commission to review the working of the Constitution he supported the Election Commission route for the Xth Schedule, which, however, remained unaccepted.

In line with the separation of powers, Articles 122 and 212 of the Constitution restrict the Courts from judging the validity of proceedings in Parliament or the State Legislature on grounds of alleged irregularity of procedure. However, for the purpose of the Xth Schedule, as per the Supreme Court in Prakash Singh Badal’s case the proceedings under the Anti- Defection Law were not to be treated as proceedings of Parliament or the State Legislature and were justiciable. While assigning the Speaker this responsibility under the Act, he was placed on a very high pedestal and also subsequently supported by the Supreme Court. However, as the later events would show in certain cases they have been far from unbiased and their conduct has been influenced by politics.

The ground situation is such that till the time actual proceedings under the Xth Schedule are not initiated, the matter of defection virtually remains a function of Articles 212 and 122, where 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 appropriate courts. The result is that in certain cases proceedings have got inordinately delayed only to circumvent the judicial process. In a case where the Speaker had not acted, the court refused to issue a mandamus for expeditious disposal of the matter.

There have been several instances where the role of the Speaker has come under scrutiny. Amongst the recent ones are the continuing imbroglio in Tamil Nadu from 2017 onwards and the cases of Andhra and Telengana where proceedings against the defectors had remained pending for a very long time. While Andhra is now going to the polls, a new Telengana Assembly was constituted in December last year, in a way making the proceedings against the defectors virtually infructuous. In fact this trend had begun in UP more than a decade ago, where sufficient breathing time had been given to the government by delaying proceedings under the Anti Defection Law.

Such aberrations can be easily addressed by a radical amendment in the law. Besides covering defections these could also include the other variants mentioned in the Act viz, expulsions, voluntarily giving up membership and even splits and mergers. Firstly, fixing a time limit within which such proceedings have to be mandatorily disposed of by the Speaker would be a major step forward. Secondly, 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 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.

Though the Anti Defection Law was enacted to curb defections, these have continued. It would now be upon the members of the seventeenth Lok Sabha which will get constituted by the end of next month to review and effect changes in the antidefection law in a manner which would 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)