Supreme Court’s suggestion that Parliament could think of establishing an independent authority to decide on disqualifications of MPs and MLAs instead of leaving the issue to be decided by the presiding officers of Parliament and legislatures under the Tenth Schedule of the Constitution is most timely and should evoke wide support from the countrymen favouring honesty in public life.
Simultaneously, the apex court has hinted at clamping a ban on tainted leaders contesting elections across the nation. If somebody calls all this as judicial activism then it deserves instant approbation in national interest. An overview of the operation of the Tenth Schedule or the anti-defection law, or better 52 nd Constitutional Amendment Act, gives a rather bizarre picture of the interpretation of the provisions of this Rajiv Gandhi’s gift to the nation made nearly three and half decades ago.
The presiding officers handling disqualification cases invariably gave decisions that weighed in favour of the parties they belonged. The time-frame used for completing the process of such petitions was anybody’s guess. The law provides for framing rules to be observed both by the presiding officers and the litigants in respect of the conduct of the proceedings once the disqualification petitions are filed with the appropriate authority. Some speakers cut short the procedure time-limits while others allowed the issues to drift endlessly for obvious reason. What is more, we have seen mergers of parties taking place at midnights when the world is asleep. A mockery par excellence!
Even the judiciary had not been consistent in their verdicts.
One main lapse on the part of the judiciary was that it did not give weightage to the opening part of para 3 of the Schedule. The entire para has since been scrapped under the 91 st constitutional amendment act in an attempt to contain frequent group defections of law makers. Under this provision, legislators or parliamentarians could skip disqualification if they constituted at least one-third of the total strength of their legislature party. However, the introductory proviso which said that provided if there is split in the original party [meaning the organizational wing] then one-third of the legislators could get out of the party unscathed. Unfortunately, the judiciary consistently ignored this part of the provision while disposing of the appeals against disqualifications. This is what is happening to the provision meant for merger of parties also.
However, there is a lone instance of the Supreme Court while setting aside the disqualification imposed on former chief minister Ravi Naik did observe that the appellant had, in fact, announced a split in the Maharashtrawadi Gomantak Party before joining the Congress Party, some three decades ago. One of the worst aspects of Indian political system is the curse of defections by MPs and MLAs. This
malaise had started soon after the parliamentary democracy dawned in this country. In the absence of any control on defections, lawmakers would cross sides at their sweet will. For example, a legislator defected thrice in a day and set a record of the sorts. This practice brought in steady instability into the vortex of our democracy.
That was why the anti-defection bill was brought forth by Rajiv Government and it was adopted by Parliament to check aya rams, gaya rams after much deliberation. One of objections to the bill was that it muzzled the freedom of expression enshrined in the Constitution. But,
then the necessity to ensure stability by upholding controlled freedom of expression scored the point.
However, one of the fallouts of the operation of the Tenth Schedule was that it promoted group defections in place of individual defections noticed earlier. The malaise had thus become malignant. That was the reason why para 3 of the Scheduled was dropped under the 91 st constitutional amendment act. However, nothing prevented individual or group legislators to resign house membership outright
and get ready for election during by-polls held within six months from the date of the cause of vacancy because there is no bar on one getting re-elected even if one is disqualified. That is how the governments have been changing even lately. Another important aspect of disqualifications done by the presiding officers is that disqualification is not for any particular period of time. The decision of former
Karnataka Speaker to disqualify a group of legislators for the full term of the assembly was wrong and that is why it has since been set aside by the apex court. The concerned politicians have since contested the by-elections and even got elected to the house.
The government and, in fact, most of the political parties may take time to surrender their right to decide about disqualifications due to defections and adopt the suggestion of the Supreme Court towards creation of an independent body like special courts or tribunals to handle such matters. This is because when the anti-defection law was framed, the political consensus was in favour of the
parliament or the legislatures should tackle such matters and keep the judiciary out of it.
That was why para 7 was added to the Tenth Schedule which said that the decisions of presiding officers in such matters would be final and no court would have any jurisdiction in respect of any matter related to disqualifications of members of a House under the Schedule. That was how the presiding officers and members elected by a House under the Schedule went about it initially even though some parties had
approached high courts to seek relief from apparent punishment.
The judiciary however asserted itself and the Supreme Court while disposing of a bunch of petitions declared para 7 as ultra-virus of the Constitution and scrapped it through a majority verdict of three versus two. That was the time when disqualification of Goa’s former Speaker Dr L P Barbosa was confirmed. The verdict was however flawed due to misinterpretation of the Schedule. The apex court
even issued habeas corpus order against Boro Babu Singh, speaker of north-eastern state for failure to
appear before it in person.
The issue of natural justice won the day. Since then judiciary is regularly handling appeals and other matters related to disqualifications under the Schedule. Moreover, the issue of transparency and impartial conduct of the proceedings of the Parliament and legislatures had engaged the attention of presiding officers decades ago. That was why the conference of presiding officers constituted the Page committee to report on this matter. One of the landmark recommendations of the committee adopted by the conference way back in 1964 was that presiding
officers could exercise the option of resigning from the political to which they belonged for the sake of independence and transparency during the pendency of their tenure as such.
Goa Assembly Speaker Gopal Apa Kamat was one of those presiding officers who exercised this option during that period. In fact, this relevant point was given credence by Parliament while framing the Schedule years later. That was how para 5 was framed and under which exemption was granted to the persons elected to the posts of either speaker or deputy speaker from the operation of the disqualification clause for resigning their political parties. There is lots more to be said about criminalization of politics.