Content

1. The absurdity of the anti-defection law
2.  Inhibiting free speech

Editorial: The absurdity of the anti-defection law

Context:

• The events in Puducherry highlight, yet again, the absurdity of the anti-defection law. In what has now become the standard operating procedure, several MLAs from the treasury benches resigned, lowering the numbers required for a no-confidence motion to succeed.

Relevance:

• GS Paper 2: Union and State Legislatures (structure, functioning, conduct of business, powers & privileges; issues therein); Salient features of the Representation of People’s Act.

Mains Questions:

1. Anti-Defection Law has reduced legislators to being accountable primarily to the party and failed to preserve the stability of governments. Critically Discuss. 15 Marks

Dimensions of the Article:

• Objective of Anti Defection Law:
• Disqualification under Anti Defection Law
• Why anti-defection law needs an overhaul?
• Way Forward

Objective of Anti Defection Law:

• The anti-defection law was included in the Constitution as the Tenth Schedule in 1985 to combat the “evil of political defections”.
• The main purpose was to preserve the stability of governments and insulate them from defections of legislators from the treasury benches.
• The law stated that any Member of Parliament (MP) or that of a State legislature (MLA) would be disqualified from their office if they voted on any motion contrary to the directions issued by their party.

Disqualification under Anti Defection Law

• Members: There are two grounds on which a member of a legislature can be disqualified:
  • If the member voluntarily gives up the membership of the party, he shall be disqualified. Voluntarily giving up the membership is not the same as resigning from a party. Even without resigning, a legislator can be disqualified if by his conduct the Speaker/Chairman of the concerned House draws a reasonable inference that the member has voluntarily given up the membership of his party.
  • If a legislator votes in the House against the direction of his party and his action is not condoned by his party, he can be disqualified.
• Independent Members: He becomes disqualified to remain a member of the House if he joins any political party after such election.
• Nominated Members: If he joins any political party after the expiry of six months from the date on which he takes his seat in the House.
• Exceptions under the law: Legislators may change their party without the risk of disqualification in certain circumstances:
  • If there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified.
  • If a person is elected as the speaker of Lok Sabha or the Chairman of Rajya Sabha then he could resign from his party, and re-join the party once he demits that post.

Why anti-defection law needs an overhaul?

• Rampant defection in spite of the law: As allegations of legislators defecting in violation of the law have been made in several states including Andhra Pradesh, Arunachal Pradesh, Goa, in recent years.
• Questionable position of speaker: The Tenth Schedule gave the Speaker of Lok Sabha and assemblies unquestionable power in deciding petitions seeking disqualification of MLAs under the anti-defection law.
  • This was challenged in the Supreme Court, in Kihoto Hollohan case [1992] which ruled that Speakers, while deciding petitions under anti-defection law, exercised judicial powers akin to a tribunal and hence their decisions would be subject to scrutiny of HCs and the SC.
• To stabilise the parliamentary system and in turn democracy as often Political parties have been found indulging in horse-trading and corrupt practices.
• No room for legitimate dissent: The law often restricts a legislator from voting in line with his conscience, judgement and interests of his electorate, as political parties issue a direction to MPs on how to vote on most issues.
• Open to interpretations: The first ground for disqualifying a legislator for defecting from a party is his ‘voluntarily giving up’ the membership of his party. This term is susceptible to interpretation.

Way Forward

• Alternate independent mechanism: Recently, the Supreme Court said the “Parliament should amend the Constitution to substitute the Speaker with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism, to ensure that such disputes are decided both swiftly and impartially.
• Reasonable time frame to decide the disqualification cases by the speaker: The Supreme court had said that “the Speaker, in acting as a Tribunal under the Tenth Schedule, is bound to decide disqualification petitions within a reasonable period”.
• Administrative Reforms Commission and various other expert committees have recommended that the issue of disqualification of members on grounds of defection should be decided by the President/Governor on the advice of the Election Commission.
• 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).

Editorial: Inhibiting free speech

Context:

• When the Delhi Assembly summoned Facebook honcho Ajit Mohan to depose before its Peace and Harmony Committee, it unwittingly provoked a litigation that may have far-reaching implications on federalism, the separation of powers and fundamental rights in India.

Relevance:

• GS Paper 2: Union and State Legislatures (structure, functioning, conduct of business, powers & privileges; issues therein);

Mains Questions:

1. The ‘Powers, Privileges and Immunities of Parliament and its Members’ as envisaged in Article 105 of the Constitution leave room for a large number of un-codified and un-enumerated privileges to continue. Assess the reasons for the absence of legal codification of the ‘parliamentary privileges’. How can this problem be addressed? 15 Marks

Dimensions of the Article:

• Parliamentary privileges
• Types of Privileges
• Challenges with respect to privileges
• Way Forward

Parliamentary privileges

Parliamentary privileges are a set of rights and immunities that are essential for the functioning of Parliament.

• The right to free speech in the House, guaranteed to the Commons since 1689, and the right to call for evidence and witnesses, are central to the role of the legislature.
• In our Constitution, both Parliament and State Assemblies were conferred with the same privileges as the Commons.
• Apart from discussions about judges, no other speech is barred for legislators in the text of the Constitution.

Types of Privileges

Collective Privileges:

• Exclude strangers from proceedings. Hold a secret sitting of the legislature
• Freedom of press to publish true reports of Parliamentary proceedings. But, this does not in case of secret sittings
• Only Parliament can make rules to regulate its own proceedings
• There is a bar on court from making inquiry into proceedings of the house (speeches, votes etc.)

Individual Privileges:

• No arrest during session and 40 days before and 40 days after the session. Protection available only in civil cases and not in criminal cases
• Not liable in court for any speech in parliament
• Exempted from jury service when the house is in session.

Challenges with respect to privileges

• Against ‘Constitutionalism’ or doctrine of limited powers. Absence of codified privileges gives unbridled power to house to decide when and how breach of privilege occurs.
• Discredits separation of powers, as speaker acts as complainant, advocate and the judge.
• Penal action in cases of breach of privileges unwarranted, unless there is an attempt to obstruct the functioning of the house or its members.
• Must only be invoked by legislature when there is “real obstruction to its functioning”. Breach of privilege invoked for genuine criticism of members of the house or due to political vendetta, reduces accountability of elected representatives.
• Invoked on grounds of defamation by individual members, while judicial remedy available under defamation and libel law.

Way Forward

• Constituent Assembly envisaged the system of uncodified privileges based on British House of Commons, as only temporary. Therefore, there is a need for proper codification of privileges. E.g. Australia passed Parliamentary Privileges Act in 1987, clearly defining privileges, the conditions of their breach and consequent penalties.
• The decisions of the speaker may be influenced by his/her political affiliations. Therefore, the trial must be conducted by a competent, independent and impartial tribunal.
• The ‘sovereign people of India’ have restricted right to free speech while ‘their representatives’ have absolute freedom of speech in the houses. Courts must revisit earlier judgments to find right balance between Fundamental Rights of the citizens and privileges of legislature.