{"id":91854,"date":"2020-01-30T01:22:17","date_gmt":"2020-01-29T19:52:17","guid":{"rendered":"https:\/\/arunachaltimes.in\/?p=91854"},"modified":"2020-01-30T01:22:17","modified_gmt":"2020-01-29T19:52:17","slug":"tribunal-permanent-remedy","status":"publish","type":"post","link":"https:\/\/arunachaltimes.in\/index.php\/2020\/01\/30\/tribunal-permanent-remedy\/","title":{"rendered":"Tribunal permanent remedy"},"content":{"rendered":"

\nChronic Defections<\/strong><\/h2>\n

\nBy Dr.S.Saraswathi<\/strong>
\n(Former Director, ICSSR, New Delhi)<\/strong><\/p>\n

The Supreme Court is indeed forced to make a rather drastic recommendation that Parliament should by an amendment of the Constitution add a provision in the Tenth Schedule to constitute a permanent tribunal to decide cases of defection of MPs and MLAs. For the present, it has directed that the Speaker, who is acting as a tribunal, should decide on disqualification petitions \u201cwithin a reasonable time\u201d and fixed an outer limit of three months from the date of filing of the petition.
\nThe judgement is given in a case relating to a Congress MLA in Manipur Assembly who joined BJP and also became a Minister when BJP formed government in 2017. The Speaker had not taken any decision on dozens of petitions received by him seeking the member\u2019s disqualification for defection.
\nThis is in sharp contrast to the speed with which the Karnataka Speaker recently not only disqualified one Congress and another JD(U) member who gave up their party membership, but also barred them from contesting election during the remainder of their term.
\nEver since the Anti-Defection provisions were added as the Tenth Schedule in the Constitution, courts are flooded with cases involving judicial review of decisions of Speakers on migration of MPs and MLAs from party to party inviting interpretation and application of the law. Defections have grown as a chronic political disease in our parliamentary democracy and certainly require a permanent remedy. A standing tribunal is likely to find its hands full to deal with growing number of cases throughout the year. It will also lessen the burden on the overburdened SC. As more and more laws are enacted and rules under the laws and court directives increase, more litigations are bound to come up leading to delay in judgements whereas issues have time-bound existence.
\nThe question of Speaker\u2019s powers to decide disqualification of members and the power of intervention by the court are important constitutional issues that have faced contrasting court verdicts. Setting up a larger Bench of five judges recommended by the Court in 2016 to go into this has not yet materialised. In this background, the recommendation for a permanent tribunal is made by the SC.
\n\u201cIt is time that Parliament has a rethink on whether disqualification petitions ought to be entrusted to the Speaker as an impartial quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto\u201d, stated the judgement. It questioned the necessity to conduct the disqualification proceedings in-house when removal of judges is handled outside the judiciary.
\nThe problem of political defection has been enlarged and transformed as a constitutional issue of Speaker\u2019s rights and also judiciary\u2019s role vis-\u00e0-vis the legislative body.
\nUnlike the Speaker of the House of Commons in Britain, the Speaker in India is not required to resign from his party. The first Speaker Mavalankar considered adopting the British convention of uncontested election of the Speaker and his\/her independence from party affiliation, but it was not acceptable to political parties in India and given up. There is no continuity in the office of Speaker who is elected by members among themselves.
\nRather, a convention of granting the post of Speaker to the ruling party and that of Deputy Speaker to the main Opposition Party has found favour with all parties and also broadly followed. In the politics of alliances, these posts, like ministries and chairmanship of some important boards, are among the items in top-level negotiations conducted for concluding sharing formula among the allies.
\nThe practice of entrusting decisions on defections and disqualifications in the office of the Speaker has enhanced the power and influence of the Speaker. This development is linked with increase in the number of political parties and establishment of \u201ccoalition governments\u201d and constant efforts for \u201copposition unity\u201d. Government formations and dismissals have come to depend much on mobilising support of elected members more than voters. The context providing the incentive for engineering defections, the office of the Speaker is growing in importance. His role both in Parliament and State legislatures goes beyond what was envisaged in the Constitution.
\nExecuting the Anti-Defection Law in letter and spirit is stressed by the SC as vital to the functioning of democracy. It is for achieving this, it suggested that a tribunal under a retired judge of the SC or Chief Justice of a High Court or some similar independent body should handle defection cases because of doubts raising over the impartiality of Speakers and to speed up decision-making. The inordinate delay made by Speakers on several cases when the term of the legislative body is fixed as five years has already nullified the effectiveness of the law. Nariman\u2019s Bench this time was for Court\u2019s intervention when the Speaker delayed decision inordinately. It is a way of assisting the Speaker to arrive at a quick decision provided political interests are kept away. His contention is that the previous judgement did not prohibit judicial intervention to assist the Speaker.
\nWhat happened in Tamil Nadu in 2017 after Jayalalitha\u2019s demise best illustrates the latent power of the Speaker in deciding the fate of governments. Disqualification of 18 dissident AIADMK MLAs by the Speaker reduced the strength of the House and thereby helped the party to retain power. Lack of confidence in the Chief Minister expressed by the dissident members was interpreted as \u201cvoluntarily giving up\u201d their party membership. The Speaker\u2019 decision received the approval of the courts and ended in bye-election for vacated seats. A similar case in Karnataka of disqualification of 11 BJP legislators was upheld by the High Court.
\nThe present court ruling has a chain effect and already, the DMK has sought urgent hearing of its plea for disqualification of 11 AIADMK MLAs including the Deputy.CM of Tamil Nadu who voted against Tamil Nadu government on the confidence motion in 2017 when that party was undergoing a deep split within. In April 2018, the Madras High Court rejected the petition and decided to wait for the verdict of the Supreme Court on the powers of the court to issue directions to the Speaker. The DMK\u2019s appeal to the Supreme Court is now in the apex Court.
\nWhether urgent hearing of this case will take place or the recommendation for constituting a permanent tribunal will move ahead is to be settled now. The decision on this will have multiple consequences \u2013 direct and indirect. It will help determine the powers of the Speaker, and also the limits of judicial review of Speaker\u2019s decision. Indirectly, it will impact the political party influence on the functioning of Speakers who cannot disassociate themselves from their political affiliations for the sake of an office for a limited term.
\nThe Speaker\u2019s stand and judicial delay have been deciding survival and breakdown of governments following defection of members. Tightening the system and procedures are not normally welcomed by contesting parties who benefit by flexibility and take advantage of loopholes. The Supreme Court hopes for speedy and impartial decisions from an independent tribunal. We have to wait and hope.\u2014 INFA<\/p>\n","protected":false},"excerpt":{"rendered":"

Chronic Defections By Dr.S.Saraswathi (Former Director, ICSSR, New Delhi) The Supreme Court is indeed forced to make a rather drastic recommendation that Parliament should by an amendment of the Constitution add a provision in the Tenth Schedule to constitute a permanent tribunal to decide cases of defection of MPs and MLAs. For the present, it […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[16],"tags":[],"class_list":{"0":"post-91854","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-features"},"_links":{"self":[{"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/posts\/91854","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/comments?post=91854"}],"version-history":[{"count":0,"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/posts\/91854\/revisions"}],"wp:attachment":[{"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/media?parent=91854"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/categories?post=91854"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/arunachaltimes.in\/index.php\/wp-json\/wp\/v2\/tags?post=91854"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}