THE SPEAKER’S COURT: ON THE MAHARASHTRA ASSEMBLY SPEAKER’S RULING

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THE CONTEXT: In the long-drawn political battle in Maharashtra, speaker in Maharashtra Legislative Assembly announced the verdict in the Shiv Sena MLAs disqualification case. This verdict is viewed as politically charged and has intensified the rift between party factions that has raised question on speaker office as well.

ISSUES:

• Affects representative democracy: Anti-defection law has been criticised as it affects representative democracy and impairs the deliberative nature of politics. It has been also targeted regarding its efficiency to curb political behaviour and the indiscriminate movement across party lines.
• Misuse of discretionary power by speaker: Another issue regarding the issue of anti defection is misuse of discretionary power of speaker. It also indicates that any loophole in the law will be used to the advantage of the majority party. Such misuse is not only the result of the lacuna in the law but also of the structural deficiencies with the role of the Speaker.
• Doesn’t set any time frame: It does not provide a clear and timely mechanism for deciding the cases of defection, and leaves the power to disqualify the members to the discretion of the presiding officers of the houses, who may be biased or influenced by political pressures.
• Limited power of court: It is also noted that the power of court to intervene is limited when the authority is acting ultra vires or there is a colourable exercise of their power. Also, the judicial review cannot be availed at a stage prior to the making of a decision by the Speaker, or at an interlocutory stage of proceedings. These rules limit the authority of the court in this regard.

10^TH  SCHEDULE OF THE INDIAN CONSTITUTION AND THE ROLE OF SPEAKER  

• The Tenth Schedule of the Indian Constitution, also known as the Anti-Defection Law, was added by the 52nd Amendment in 1985.
• It was a response to the toppling of multiple state governments by party-hopping MLAs after the general elections of 1967.
• It lays down the provisions related to disqualification of members of Parliament (MPs) and State Legislatures on grounds of defection.

Exception:

• It allows a group of MP/MLAs to join (i.e., merge with) another political party without inviting the penalty for defection.
• And it does not penalise political parties for encouraging or accepting defecting legislators.
• As per the 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’.
• But the 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party must be in Favour of a “merger” for it to have validity in the eyes of the law.

Deciding authority:

• The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.
• However, the law does not provide a timeframe within which the presiding officer has to decide a defection case.

Grounds for Defection:

• If an elected member voluntarily gives up his membership of a political party.
• If he/she votes or abstains from voting in such House contrary to any direction issued by his political party.
• If any independently elected member joins any political party.
• If any nominated member joins any political party after the expiry of six months.
  

THE WAY FORWARD:

• Strengthening Party Accountability: There is a need to introduce regulations to enforce internal party democracy and transparency that could potentially curb defection motivated by discontent within parties. It can be done by making party funding more transparent and accountable which can incentivize defections.
• Address structural issues: To examine the shortcomings of the anti defection law, it is imperative to critically analyse the role and importance of the office of the Speaker as it is the most important functionary under the anti-defection law.
• Global system: There is need to learn and take inspiration from the global system in case of anti defection law. For instance, due to well-established conventions, the Speakers in the United Kingdom shed all party affiliations upon election.

THE CONCLUSION:

It is essential to understand the role of the Speaker in anti defection law to holistically comprehend the manner in which they deviate from the anti-defection laws and subvert the procedure. There is an urgent need for a rigid and uncompromising anti- defection law to regain the faith of the people in the electoral system.

UPSC PREVIOUS YEAR QUESTIONS

Q.1 “Once a speaker, Always a speaker’! Do you think the practice should be adopted to impart objectivity to the office of the Speaker of Lok Sabha? What could be its implications for the robust functioning of parliamentary business in India. (2019)

Q.2 The role of individual MPs (Members of Parliament) has diminished over the years and as a result healthy constructive debates on policy issues are not usually witnessed. How far can this be attributed to the anti-defection law, which was legislated but with a different intention? (2013)

MAINS PRACTICE QUESTION

Q.1 “ The paradoxical nature of the office of the Speaker is one of the leading causes for the ineffective realization of the anti-defection law”. Examine.

SOURCE: https://www.thehindu.com/opinion/editorial/the-speakers-court-on-the-maharashtra-assembly-speakers-ruling/article67731204.ece