Golden opportunity for a Speaker
Honestly speaking one gets a very rare opportunity to become a national figure or an international personality. It happens once in a life time to those who are really lucky. I remember the story of one presiding officer (lovingly known as Bara Babu in the Capital circuit) who could strike the National headlines when he was flown to Dili by a special aircraft for a hearing in the Federal court. For a few days the national press and media discussed his personal appearance for contempt of court.
The Anti-Defection law (1985 law – 52nd Constitution Amendment) was designed to curb political defection. The fundamental purpose of enacting this law was to fight “the evil of political defections which has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.” It is to provide that an elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party would be disqualified on the ground of defection if he voluntarily relinquishes his membership of such political party or votes or abstains from voting in such House contrary to any direction of such party or is expelled from such party.
Despite this law many cases of defections came about invoking para 3 of the law which permitted defection by split (i.e., defection by 1/3 of the members of a legislature party). Many had criticized it and started demanding for further strengthening and amending the Anti-Defection Law as contained in the Tenth Schedule of the Constitution of India. It has been constantly flayed on the ground that the law allows bulk defections while declaring individual defections illegal.
The provision for exemption from disqualification in case of splits as provided in paragraph 3 of the Tenth Schedule to the Constitution of India has, in particular, come under severe criticism on account of its destabilizing effect on the government.
Then came about the revamped Anti-Defection law (2003 law - 91st Constitution Amendment – Presidential assent given on 1 Jan 2004). According to the strengthened law the split provision has been done away with; rather replaced by the merger provision - allowing merger of original political parties having 2/3 of the members of the legislature party with another original party. This change has no doubt strengthened the law but still there are weak areas. For instance, the Speakers power to handle and decide the defection petitions/cases without a time limit.
When there is loophole in the law, we can’t blame the person who is benefited by the same. According to the Tenth Schedule the presiding officer or the speaker has the constitutional right (much bigger than the legal right) to hear, handle and decide petitions/cases relating to defections of the members of the ‘House’ (small or big). But no time limit is specified in the law to decide such matters.
I am a third-class law degree holder; I don’t know whether judiciary can insert a deadline to hear such defection matters. I still hold the conservative view that the propriety of law-making lies with the Legislature. Of course, suggestion from the Highest Court must be respected.
The tendency is to call the smaller fry in question. Nobody dared to summon a person like Dada even when he used the expression “overreaching of the judiciary “in legislative matters. The balance between the Judiciary and the Legislature and Executive must be maintained in all times for a successful democracy.
Justice hurried is justice buried and Justice delayed is justice denied. Which one will get the precedence? I really don’t know. Let the Highest Court of the land decide which one should be given priority. Even Sri Ram had to wait for 70 years to get a verdict despite having innumerable Hanumans. Three years is nothing; but when the life span is only 5 years, 3 years is too long. This is about ethical jurisprudence and golden rule of interpretation of law.
However, the law as it stands today is – “Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule (Tenth Schedule)”. Going by the literal interpretation of law and practical difficulties the presiding officer is not at fault when the parties to the cases remain noncooperative, buying time and manipulative.
He is not defying the law; rather he is facing the difficulties of the law. He may be pulled up for not following the direction but certainly not for defying the law. A new amendment to the Constitution may be actuated soon – 10th Schedule ought to be revamped further.
Obeying the obiter dicta of the Apex Court defection cases to be finalized within a stipulated time (may be within 3 months) under a permanent tribunal other than the Speaker’s tribunal; hopefully the lawmakers will bring the amendment sooner or later. Till then let the existing law prevail over morality .
Milord, special aircraft may be required for the Jr. Bara Babu when the deadlines are over. Waiting for another feather in our cap – a national law is likely to be changed because of our political manoeuvrings. Wow!