Friday, 29 May 2020

Abuse of anti-defection laws

Updated: May 3, 2016 12:02 pm

The Uttarakhand High Court’s decision to revoke President’s rule in the state will remain suspended till May 13. That is the verdict of the Supreme Court as I write this piece. Meanwhile, the apex court has asked the central government seven questions, answers to which will determine its ultimate judgment. And one of these questions, which to me is the crux of the matter, is: “Whether disqualification of MLAs by the Speaker is a relevant issue for the purpose of imposing President’s rule under Article 356?”

In my considered view, the learned judges of the Uttarakhand  High Court had only limited their observations by saying that the President of the country can go wrong, that the Prime Minister of the country can go wrong and that the Governor of the state can go wrong. On the other hand, they would like us to believe, and this is something I find very hard to accept, that the Speaker of the Assembly should never be questioned for his decisions and that a democratically elected chief minister of a state should be treated differently by the Central government if the chief minister’s political party is not the same that rules at the Centre.

In other words, the learned judges of the High Court gave an impression that a Speaker of the Assembly had got more constitutional protection than even the President of India. One has to wait whether the Supreme Court will agree with this theory of the Uttarakhand High Court after getting the answer form the central government.  However, for me, this infallibility of the Speaker is the most important question, not whether President’s rule is revoked and the Congress government is eventually restored.

In fact, I find it politically stupid on the part of the BJP to have disturbed the Rawat government, particularly when elections are only months away.

But coming back to the legal implications, I am afraid that if a Speaker or any presiding officer is declared infallible, then he or she can make and unmake many governments by disqualifying legislators at his or her will. That is the real danger to Indian democracy today, something the High Court seems to have overlooked.

The learned judges of the High Court were absolutely right when they quoted the apex court that the majority of a government should be tested in the floor of the legislature. That means that a government must have the support of the majority of the legislators at the time of the voting.

But what happens if many legislators are prevented from or disqualified for voting by the Speaker is the key. If a chief minister or a prime minister, thanks to the support from the Speaker, brings down the membership of the House and then manages majority of those present and voting, can it be called a democratic exercise?

In fact, it is worth pointing out here that none other than former Law Minister H R Bharadwaj, who as the governor of Karnataka had tried to unsettle the then BJP-government led byB.S. Yeddyurappa, told the Hindustan Times the other day that “speakers are to be blamed for political stalemates in states.” According to him, it is wrong to blame the President or the Governor of a state for the destabilisation of an elected government. “What can a governor do? If he has come to know that the state government has lost majority, he is bound to ask the chief minister to seek a trust vote. He can’t allow a minority government to continue. The problem begins when the governor requests the speaker to convene the House for a floor test. Instead of simply conducting the floor test, the speaker disqualifies rebel MLAs of the ruling party. Then the disqualified MLAs go to courts against the speaker’s decision, further complicating the matter,” Bhardwaj said.

Take the case in Uttarakhand. Here, there were nine Congress rebel MLAs. Till their “disqualification” by the Speaker Govind Singh Kunjwal, these rebels had not left the Congress party. And they had not, legally speaking, voted against the party inside the Assembly by violating the Congress party whip. Going by the provisions of the Tenth Schedule of our Constitution, these so called rebels would have invited the provisions of anti-defection, had they defected to another party or given up their membership of the Congress or abstained from or voting against the direction of the Congress party whip. It is true that they wanted division for passing the budget, but the Speaker, and it is unprecedented, declared the budget “passed” without voting.

These rebels definitely would have invited the anti-defection provisions had they been allowed by the Speaker to vote along with the opposition BJP against the budget. But, had they been allowed, the Congress government would have also fallen that day as it would have been reduced into minority (the nine rebels along with BJP’s 28 in a house of 70 would have reached the number 37 and easily defeated the budget, and the government was bound to resign with the defeat of a money bill like the budget).

But since the Speaker did not allow the division of votes and got the budget passed without voting, there was no way of finding out whether or not the rebels would have gone against the party whip. What the Speaker did then is highly debatable. Before the day of the vote of confidence as demanded by the Governor, the Speaker disqualified the rebels so as to bring down the strength of the Assembly for the survival of the Rawat government. It seems that the Speaker disqualified them by “anticipating” that they will vote against the party on whose tickets they were elected. He may be right. But can you punish somebody in anticipation?

It may be noted that the office of the Speaker has become quite controversial in recent years for its abuse of the anti-defection laws. The recent crisis in Arunachal Pradesh was also essentially due to the clash of “powers” between the Governor and Speaker, following factionalism in the ruling Congress party that had 41 legislators in the 60-member House. As many as 21 dissidents wanted a new chief minister in place of Nabam Tuki. They were supported by 11 MLAs belonging to the BJP. Obviously, Tuki did not enjoy the majority. But the Speaker Nabam Rebia disqualified 16 Congress dissidents even though till their “disqualification” they had not left the party or defied the party directive inside the Assembly to come under anti-defection laws.

To go further back, one can cite how in 1992, the then Meghalaya Speaker PK Kyundiah suspended the voting rights of five Independent members before the House was to take up the confidence motion against Chief Minister BB Lyngdoh. Later, Kyundiah disqualified them even though they had obtained “stay” from the Supreme Court. The apex court now said that the disqualified members must vote in the trial of strength. But before the Court’s order was implemented, the then central government led by the Congress party imposed the President’s rule in the state!

Given these unfortunate incidents, it is  not a bad idea to work on the suggestion in 2010 of the then Union Law Minister Veerapa Moily that “the issue of disqualification of members of state assemblies, legislative councils and both Houses of Parliament should be decided by the Governor and President based on the recommendation by the Election Commission”.

Besides, former Lok Sabha Speaker Somnath Chatterjee had argued that “the jurisdiction and authority to deal with matters of defection as provided in the Tenth Schedule need not continue to be exercised by the presiding officers and the power should be conferred on some other authority like a special tribunal comprised of people well versed in law or on an authority like the Election Commission”. Incidentally, both Mr. Chatterjee and the then Law minister Veerapa Moily served during the previous UPA rule.

It is time indeed to stop the Speakers to abuse the Anti-defection laws.

Prakash Nanda

By Prakash Nanda

(prakashnanda@udayindia.in)

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