May 18, 2020

The Need of Revisiting Existing Constitutional Framework in Light of Defection and Horse Trading Laws

SAMARTH SANSAR

Democracies across the world have been concerned about the menace of political defections by legislators, especially the parliamentary form of governments where the stability of government depends upon the loyalty of the legislative parties. The need for a law governing defections was felt in India during the 1970s when this “political corruption” took its worst form and floor crossing by legislators shattered the tenets of democracy.[1] To curb horse-trading and defections, a committee[2] was formed and based on its recommendations,  Rajiv Gandhi brought in the 10th schedule by way of 52nd Constitutional amendment[3]in 1985, which contained the anti-defection law after previous two unsuccessful attempts (32nd Constitutional amendment and 48th Constitutional amendment)[4] made by preceding governments. It laid down the provisions of grounds of disqualification i.e. voluntarily giving of membership of the political party and voting or abstaining from voting contrary to party whip, exceptions and the deciding authority in case of defection.[5]

 It was believed that this will be a step forward to curb defections and restore the spirit of democracy but unfortunately, our cunningly smart politicians managed to find the loopholes in the law and the evil continues to dent the ethos of our democracy. The operation of this law over the years has made it evident that its provisions suffer many drawbacks and has failed to achieve its objective in entirety.

In this article, I highlight how certain provisions in the said law such as unfettered powers to the chairman of the house and lack of stipulated time period have tainted the democratic process and it is time to revamp the law by plucking these loopholes at the earliest. There is a need to ensure stable democratic government but at the same time, freedom of parliamentarians to voice their dissents must also not be curtailed.

 WIDE AMBIT OF POWERS CONFERRED TO THE CHAIRMAN OF HOUSE HOW PROBLEMATIC?

Pt. Jawaharlal Nehru once stated that “speaker represents the dignity and freedom of the house and because the house represents the nation, in a manner the speaker is the symbol of nation’s freedom and liberty”[6]. With this spirit, the onus to decide impartially and contain matters of defection has been put on the speaker under paragraph 6 of the 10th schedule.[7] Regrettably, certain recent developments have shattered this belief, as very often the position of speakers has been used to aid the ruling faction and allegations of them being partial have been expressed. There have been instances where the speakers themselves have agreed that it is impractical to expect them to be impartial.

The constitutionality of the anti-defection law was challenged in Kihoto Hollohon v. Zachilhu and the majority upheld the validity of this law stating that “freedom of speech granted to legislators can be curtailed for the larger benefit of the nation”.[8] Paragraph 7 of the 10th schedule that put a bar on the judicial review of the decisions of the speaker, however, this paragraph was held to be unconstitutional and hence struck down.[9] What is of greater importance here, in light of recent developments, is the view taken by minority where Justices LM Sharma and JS Verma declared the anti-defection law unconstitutional and stated that “the speaker is dependent on the ruling combination for continuity of his own position and hence concerns of bias were raised and his authority to decide was questioned”.[10] It is interesting to note that Chief Justice MN Venkatachaliah who upheld the constitutionality of this law, later while heading a commission for reviewing the working of constitution, opined that the deciding power in matters of disqualification under 10th schedule should be conferred to the Election Commission.[11]

On multiple instances the speakers have been prejudiced, be it the recent case of Karnataka where speaker K R Ramesh Kumar was alleged of intentionally delaying trust vote or in 2008 when after ‘Operation Lotus’[12] the speaker K.G. Bopaiah disqualified 16 MLAs which was later set aside by the SC on grounds of denial of principles of natural justice and basic constitutional values.[13] Similarly, in 2016, Andhra Pradesh and Telangana witnessed mass scale defections that took place in a short span of time and the defectors went on to become ministers still no action was initiated by the speaker or when Kesari Nath Tripathi as the speaker of UP assembly in 1990 propounded the arbitrary theory called “continuing split”[14] and hence did not initiate action against defecting members. In 2016, Uttarakhand assembly speaker Govind Singh Kunjal, in an unaccustomed manner passed the budget without voting upon sensing that few members of his party can vote against and the budget and hence the whole political drama started.[15] These are only a few examples which show the wide misuse of immense power granted to the speaker. Despite the anti-defection law being in place for almost 35 years now, the instances of defection have not been contained and this can largely be attributed to the unchecked powers given to the speaker.

While the supporters of this provision claim that there is always a scope of judicial review against speaker’s decision but it is important to understand that judicial review can be exercised once the speaker has made his decision. In most of the cases, the speakers unnecessarily delay their verdict to benefit a particular section which in some cases has extended till the tenure of the legislature without any call being taken. While the Supreme Court in Rajendra Singh Rana and Ors. Vs. Swami Prasad Maurya and Ors. , held that failure on the part of the speaker in acting upon a complaint is a violation of constitutional duty, the situation has not changed much and the delays continue to violate the spirit of democracy. [16]

This brings us to the issue of not having a specified time frame within which the speaker has to decide on the issue of defection. This has led to the speaker granting an unjust benefit to the ruling party as he keeps on delaying his decision till the horse-trading and corrupt practices are completed. For instance, recently, Vice-President Venkaiah Naidu while deciding on the issue of disqualification of JDU MP from Rajya Sabha, stated that there should be some time frame within which the issue should be decided and suggested that issue should be disposed within a year of the complaint.[17]

CONCLUSION

Everything has been said already, but as no one listens, we must always begin again”.[18]

The efficiency of anti-defection law has been put to test in recent times but unfortunately, unlike any other living legislation, this law has not been receptive to changes. The loopholes have been misused massively and it is high time that we acknowledge the need to resolve these limitations to prevent violation of democratic principles and values in the near future.

In my opinion, the decision regarding the disqualification of members in case of defections of MPs and MLAs should be granted to President and Governor respectively. While Article 103 of the constitution provides that matters of disqualification of Member of Parliament shall be referred to President[19] and Article 192 provides this authority to the governor in cases of state legislatures.[20] I believe there is no substantial requirement to treat disqualification under defection to be different from any other form and hence attributing special treatment to it. This is unreasonable to expect from the speaker to against the faction which made him/her the speaker and hence it would be in the best interest of the nation that this matter is dealt as any other matter of disqualification as provided in the constitution. In this regard the ‘Dinesh Goswami Committee on electoral reforms, 1990’ has recommended that issue of disqualification be decided by President and Governor on the advice of Election commission[21]. There must also be a time frame within which the decision should mandatorily be made. In this regard, we can take inspiration from our neighbour Bangladesh where the matter is referred to the election commission and within 30 days a decision has to be taken.[22] More or less all the countries having such anti-defection laws have set a time limit within which action has to be taken.[23] It would be interesting to find whether in India such a provision was missed by our lawmakers or was it deliberately not provided.

Amending the current law on these lines would essentially mean striking a balance between freedom of speech, debate and discussion to our legislators as well as ensuring stability to the government by putting a check on instances of defection.

*The author is a 2nd Year Student at National University of Juridical Sciences, Kolkata.

[1] COMBATING POLITICAL CORRUPTION: A CRITIQUE OF ANTI-DEFECTION LEGISLATION by PARDEEP SACHDEVA; The Indian Journal of Political Science, Vol. 50, No. 2 (April – June 1989), pp. 157 -168.

[2] Shri Y.B. Chavan committee on Defections, 1969.

[3] The Constitution (Fifty Second-Amendment), 1985.

[4] The Constitution of India, 1950.

[5] The Constitution, 10th Schedule, (Fifty Second-Amendment), 1985.

[6] https://economictimes.indiatimes.com/news/politics-and-nation/are-our-speakers-as-impartial-and-apolitical-as-they-should-be/articleshow/53261480.cms?from=mdr.

[7] Supra, note 5.

[8] Kihoto Hollohon v. Zachilhu, (1992) 1 SCC 309.

[9] Ibid.

[10] https://barandbench.com/anti-defection-laws-in-india-its-flaws-and-its-falls/.

[11] Report of The National Commission to review the working of Constitution, 2002.

[12] https://zeenews.india.com/karnataka/operation-lotus-when-bjp-managed-to-poach-congress-jds-mlas-and-form-government-in-2008-2108630.html.

[13] https://www.livemint.com/Politics/kpf9jHpIuoxThDRvCEVSgM/SC-quashes-Karnataka-speaker8217s-decision-to-disqualify.html.

[14] https://www.newsclick.in/SC-Order-Emasculates-Anti-Defection-Law.

[15] https://www.news18.com/blogs/india/prakash-nanda/having-non-partisan-speakers-14452-1224005.html.

[16] (2007) 4 SCC 270.

[17] http://www.newindianexpress.com/nation/2018/dec/06/v-p-fix-time-frame-to-decide-defection-cases-1907973.html.

[18] Andre Gide, French thinker and writer.

[19] The Constitution of India, Article 103.

[20] The Constitution of India, Article 192.

[21] Dinesh Goswami Committee on electoral reforms, 1990, pg. no. 60.

[22] Anti-Defection Law in India and the Commonwealth, 2005, report in Lok Sabha Secretariat by G.C. Malhotra, available on https://eparlib.nic.in/bitstream/123456789/58674/1/Anti_Defection_Law.pdf.

[23] Ibid.