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Disqualification of Two Jharkhand MLA Under Anti- Defection Laws
Context:
The Jharkhand Assembly Speaker’s Tribunal disqualified JMM MLA Lobin Hembrom and BJP MLA J.P. Patel under the anti-defection law in the ongoing monsoon session of the Jharkhand Assembly.
More in News:
- Both MLAs were found guilty of defection under the 10th Schedule of the Constitution as they had contested the Lok Sabha elections against their party’s wishes.
- Hembrom contested against his party’s candidate, and contested as an independent candidate, leading to his suspension by JMM president Shibu Soren.
- The tribunal considered Hembrom’s past contest as an independent in 1995 but found the current defection valid.
- Patel joined Congress and contested against BJP’s candidate, leading to a complaint from BJP’s Amar Kumar Bauri.
About Anti- Defection Laws:
- Introduced through the 52nd Amendment Act of 1985 and encapsulated in the Tenth Schedule of the Constitution, seeks to curb the issue of political defection by imposing sanctions on lawmakers who switch parties or breach party discipline.
Exceptions:
- Party Mergers: Legislators can change parties without disqualification if at least two-thirds of the legislators support the merger with another party.
- This Provision was added to the 91st Amendment Act of 2003.
- Split :Provision in the Tenth Schedule allowing exemption from disqualification for splits involving one-third of a legislature party was removed by the 91st Amendment Act of 2003.
Provisions of Anti-Defection Laws:
Members of Political Parties:
- Disqualified if they voluntarily give up party membership.
- Disqualified if they vote or abstain from voting against party directions without prior permission and without party condoning the act within 15 days.
Independent Members:
- Disqualified if they join any political party after being elected.
Nominated Members:
- Disqualified if they join any political party after six months from the date they take their seat in the House.
- Allowed to join any political party within the first six months without disqualification.
Deciding Authority
- The Speaker of the House or the Chairman of the Legislative Council is the final authority on matters related to defection. Their decision on such issues is conclusive and cannot be contested in any court.
- However in the Kihoto Hollohan v. Zachillhu and Others (1992):, the Supreme Court ruled this provision unconstitutional, arguing it improperly removed the jurisdiction of the Supreme Court and high courts.
Need of Anti- Defection Laws:
- Greater Stability: It enhances stability in the political system by discouraging legislators from frequently switching parties.
- Prevention of ‘Aya Ram – Gaya Ram’ Politics which originated from Haryana MLA Gaya Lal’s actions in 1967, where he switched parties three times in two weeks, highlighting frequent party-switching by legislators.
- Facilitates Democratic Realignment: It allows for the democratic realignment of parties in the legislature through mergers.
- Reduces Corruption and Expenditure: It minimises political corruption and non-developmental expenses associated with frequent elections.
- Constitutional Recognition of Political Parties: It provides clear constitutional recognition to the existence and role of political parties for the first time.
Criticism:
- No Differentiation Between Dissent and Defection thereby curbing legislators’ rights to dissent and freedom of conscience, promoting party tyranny.
- Irrational Distinction Between Individual and Group Defection ,effectively banning only “retail defections” while legalising “wholesale defections.
- No Provision for Expulsion for Activities Outside Legislature: It does not allow for the expulsion of a legislator for their activities outside the legislature.
- Criticism of Vesting Authority in the Presiding Officer: The presiding officer may not be impartial due to political pressures and lacks the legal expertise to adjudicate defection cases.
- Notably, former Lok Sabha Speakers Rabi Ray (1991) and Shivraj Patil (1993) expressed doubts about their suitability for this role.
- Lack of Intra-Party Democracy: By penalising defectors, the law encourages parties to tightly control their members and discipline those who deviate. This can deter legislators from voicing concerns against party leaders or addressing issues that might be unpopular within the party.
Landmark Judgments related to the anti defection law:
- Ravi S. Naik v. Union of India (1994):In such cases, the Speaker or Chairman of the relevant legislative body has the authority to disqualify an elected representative for defection.
- In Keisham Meghachandra Singh v the Hon’ble speaker (2020): The Supreme Court upheld the Speaker’s decision to disqualify nine MLAs in Manipur.
- The Supreme Court ruled that speakers should decide on disqualification pleas within three months.
Recent anti-defection cases
- Political Crisis in Karnataka (2019): Several MLAs resigned, causing a political crisis.
- The Speaker disqualified them under the anti-defection law, and while the Supreme Court upheld their disqualification, it overturned the ban on holding office until the end of their term.
- Meghalaya Speaker’s Decision (2019): The Speaker disqualified five MLAs under the anti-defection law. The High Court affirmed the disqualification despite challenges, and the Supreme Court declined to overturn the Speaker’s ruling.
Way Forward for strengthening anti-defection legislation:
- Strengthening Disqualification Provisions: Implementing clear and specific criteria for disqualification—such as voting against party policies, voluntarily leaving the party, and defying the party whip in a confidence vote—can help reduce arbitrary disqualifications.
- Dinesh Goswami Committee (1990): Disqualification under the Tenth Schedule should occur if a member voluntarily leaves their party or votes against the party whip in confidence or no-confidence motions.
- Promoting Intra-Party Democracy and Transparency, such as electing party leaders and candidates.
- 2nd ARC Recommendations: The president or governor should decide whether to disqualify members on grounds of defection, based on the advice of the Election Commission.
- Constitution Review Commission (2002): Defectors should be barred from holding public office for the remainder of their term, and their votes to remove a government should be deemed invalid.
- Law Commission (170th Report, 1999): Pre-poll electoral alliances should be recognised as political parties under the law.
