SC: Cannot fix time limit in defection pleas

Context:

The Supreme Court put on hold a petition to frame guidelines for fixing time limits by which the Speakers of Parliament and the Assemblies should decide defection petitions against MLAs.

Relevance:

GS-II: Polity and Governance (Constitutional Provisions, Legislature and Elections, Executive, Separation of Powers)

Dimensions of the Article:

1. What is Defection (Aaya Ram Gaya Ram)?
2. 10^th Schedule of the Indian Constitution (Anti-Defection Law)
3. When do the Legislators face risk of disqualification?
4. Issues with having an Anti-defection law
5. Recommendations regarding Anti-Defection law
6. Contention regarding the time-limit for Defection decision

What is Defection (Aaya Ram Gaya Ram)?

• ‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group”.
• Aaya Ram Gaya Ram (English: Ram has come, Ram has gone) expression in politics of India means the frequent floor-crossing, turncoating, switching parties and political horse trading in the legislature by the elected politicians and political parties.
• A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
• The law applies to both Parliament and state assemblies.
• The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.

10th Schedule of the Indian Constitution (Anti-Defection Law)

• The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act and technically the Tenth Schedule to the Indian Constitution is the anti-defection law in India.
• It is designed to prevent political defections prompted by the lure of office or material benefits or other like considerations.
• It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
• The law applies to both Parliament and State Assemblies.

When do the Legislators face risk of disqualification?

Disqualification of a legislator (member of the parliament or legislative assemblies) is possible when the member:

1. Gives up his membership of a political party voluntarily
2. Votes or abstains from voting in the House, contrary to any direction issued by his political party (Party Whip is an official of a political party who acts as the party’s ‘enforcer’ inside the legislative assembly or house of parliament.)
3. Joins any party after being elected as independent candidate
4. Joins any political party after 6 months of being nominated as a legislative member

The Supreme Court mandated that in the absence of a formal resignation, the giving up of membership can be determined by the conduct of a legislator, such as publicly expressing opposition to their party or support for another party, engaging in anti-party activities, criticizing the party on public forums on multiple occasions, and attending rallies organised by opposition parties.

Exceptions:

• Legislators can change their party without the risk of disqualification to merge with or into another party provided that at least two-thirds of the legislators are in favour of the merger, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
• Earlier, the law allowed parties to be split (this used to allow for legislators to hold their position while actually “defecting” to either of the split parties), but at present, this has been outlawed.
• Any person elected as chairman or speaker can resign from his party, and rejoin the party if he demits that post.

Who takes the decision on Defection?

• The decision on disqualification questions on the ground of defection is referred to the Speaker or the Chairman of the House, and his/her decision is final.
• The Presiding Officer has NO time limit to make his decision
• All proceedings in relation to disqualification under this Schedule are considered to be proceedings in Parliament or the Legislature of a state as is the case.
• The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.
• There is no time limit as per the law within which the Presiding Officers should decide on disqualification for defection.

Issues with having an Anti-defection law

• The principle of the Anti-defection law basically forces members vote based on the decisions taken by the party leadership, and not based on what their constituents would like them to vote for – can be considered as a hindrance to the “functioning of the legislature” in the true sense of the word. It limits a legislator from voting according to his/her own conscience, judgement and electorate’s interests.
• The core role of an MP to examine and decide on a policy, bills, and budgets is side-lined. Instead, the MP becomes just another number to be tallied by the party on any vote that it supports or opposes.
• It can also be said that this provision goes against the concept of representative democracy.
• In the parliamentary form, the government is accountable daily through questions and motions and can be removed any time it loses the support of the majority of members of the Lok Sabha. In India, this chain of accountability has been broken by making legislators accountable primarily to the political party. Thus, anti-defection law is acting against the concept of parliamentary democracy.

Recommendations regarding Anti-Defection law

• Dinesh Goswami Committee on electoral reforms recommended that Disqualification should be limited to a member voluntarily gives up the membership of his political party and a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.
• The Law Commission in its 170th Report recommended that provisions which exempt splits and mergers from disqualification to be deleted and also Pre-poll electoral fronts should be treated as political parties under anti-defection. It also recommended that Political parties should limit issuance of whips to instances only when the government is in danger.

Contention regarding the time-limit for Defection decision

• There is no time limit as per the law within which the Presiding Officers should decide on a plea for disqualification. The courts also can intervene only after the officer has made a decision, and so the only option for the petitioner is to wait until the decision is made.
• There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.
• In a few cases, there have been situations where members who had defected from their political parties continued to be House members, because of the delay in decision-making by the Speaker or Chairman.
• There have also been instances where opposition members have been appointed ministers in the government while still being members of their original political parties in the state legislature.
• The court had urged Parliament to “re-consider strengthening certain aspects of the Tenth Schedule [anti-defection law], so that such undemocratic practices are discouraged”. The Karnataka judgment of 2019 said Speakers who cannot veer away from their constitutional duty to remain neutral do not deserve the chair.
• However, the Supreme Court still holds that it cannot legislate and hence cannot frame guidelines for fixing time limits within which presiding officers should decide defection petitions against legislators.

-Source: The Hindu