Context: The disqualified Karnataka MLAs moved the Supreme Court on seeking further postponement of the Assembly Bypolls which are scheduled to take place on December 5.
The court earlier had reserved its verdict on petitions filed by the 17 MLAs, challenging their disqualification as lawmakers ahead of the trust vote by the then HD Kumaraswamy government.
Karnataka assembly speaker KR Ramesh in July 2019 had disqualified 14 rebel MLAs with immediate effect till the end of the term assembly under the anti-defection law.
- The anti-defection law sought to prevent political defections which may be due to reward of office or other similar considerations.
- The Tenth Schedule was inserted in the Constitution in 1985.
- 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.
- 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
EXCEPTIONS UNDER THE LAW
- Legislators may change their party without the risk of disqualification in certain circumstances.
- The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favor of the merger.
- In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
Various expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.
This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries remuneration, and has not been excluded in a list made by the legislature).
SCOPE FOR JUDICIAL REVIEW
- 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.
- However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
- The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea.
- Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.
SIGNIFICANCE OF THE ANTI-DEFECTION LAW
- The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides.
- The law certainly has been able to curb the evil of defection to a great extent
- This law has served the interest of the society, Political instability caused by frequent and unholy change of allegiance on the part of the legislators of our country has been contained to a very great extent.
- That is a story of success of one of the most important legislation that the Indian Parliament has enacted.
SHORTCOMINGS IN THE LAW
- However, this law also restricts a legislator from voting in line with his conscience, judgment and interests of his electorate.
- Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
- Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue.
- Several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions).
- Of late a very alarming trend of legislators defecting in groups to another party in search of greener pastures is visible. The recent examples of defection in state Assemblies and even in Rajya Sabah bear this out. This only shows that the law needs a relook in order to plug the loopholes if any.
- The fundamental premise of democracy is the protection of the wishes of the people. But at the same time, political stability is essential for the progress of the country and its march forward. The loyalty of the legislators is not first to the party that fielded them, but to the electorate of the constituency that elected them.
- For a direction of a party to the legislator to be democratic, the party must first be democratic. Only when the leadership of the political party is democratic can their directions can have democratic flavor. It is only when intra-party democracy is statutorily ensured that the anti-defection law can gain meaning and political legitimacy.