|
L A W
& J U S T I C E
Floor
Crossing in Indian Legislative Assemblies
Joginder Singh Toor
 THE
democratic set up in India, in its growing stage,
has many vices, endangering the democracy itself. Frequent defections, by
members of legislative assemblies and even by members of parliament not only put
the country's constitutional web in disarray but the country itself to shame. A
legislator of Haryana Assembly, by the name Aya Ram, by his frequent defections
to another political party and back to the original one, in a period of a few
days, for considerations other than ideological, gave the synonym Aya Ram-Gaya
Ram [ Mr. Defector] to the politics of defection.
The 42nd
amendment to the Constitution added ‘Tenth Schedule’ , prohibiting defection
except by way of split in a political party, by at least one third of its
members still left many a questions for interpretation by the Supreme Court of
India. The Samajwadi Party in Uttar Pradesh was able to gain power in
August,2003 by ousting Mayawati's B.S.P. led Govt. with the help of 13 M.L.As
who defected from the party and supported the Samajwadi Party. The defected
members later formed the Loktantrik Bahujan Dal (LBD) with the defection, later
on, of another 24 M.L.As. The L.B.D. merged with the Samajwadi Party. The B.S.P.
petitioned before the Speaker Kesrinath Tripathi of the B.J.P. for seeking
disqualification of the M.L.As who had defected from B.S.P. The Speaker
willfully kept silent. As had earlier happened in some other legislative
assemblies witnessing similar defections particularly like as it happened in
Goa, Jharkhand and in Uttar Pradesh. The speakers of the assemblies blatantly
played a partisan role to help their parent political parties.
The Tenth
Schedule had provided as "Subject to the provisions of
Paragraph 3, 4 & 5, a member of a House belonging to any political party
shall be disqualified for being a member of the House......... If he has
voluntarily given up his membership of such political party; or if he votes or
abstains from voting in such House contrary to any direction issued by the
political party to which he belongs..............(2) An
elected member of a House who has been elected as such otherwise than as a
candidate set up by any political party shall be disqualified for being a member
of the House if he joins any political party after such
election.................."
Disqualification
on the ground of defection does not apply where a member of a House makes a
claim that he and any other member of his legislature party constitute a group
representing a faction which has arisen as a result of split in his original
political party and such group consist of not less than one third members of
such legislature party.
The question
that arose at the highest court of the country was whether piecemeal
defection ultimately leading to making up the one third required strength of
members for a split would save the members from disqualification which in the
case of Uttar Pradesh Assembly was four faced defection in the B.S.P triggered
by its 13 M.L.As. The total strength of the party being 109 and the four faced
defection led to the number of defected members to 37.
In December,2006
the Supreme Court advised the Parliament to examine the issue as it ruled that
the malaise if not checked will affect the impartiality and credibility of the
Speaker's high office. The National Commission to review the working of the
Constitution had recommended that the power of a member's disqualification on
the ground of defection should be vested with the Election Commission rather
than the Speaker concerned. In its report, the Administrative Reforms Commission
headed by M.Veerappa Moily had suggested that President or the Governor should
decide it on the Election Commission's advice.
The need to
define the Speaker's power to disqualify in order to check the malaise is
paramount at the moment more so in the context of the constitutional role of the
Speaker to preside over the sessions of the legislature and to decide important
questions depending upon Speaker's ability and high impartiality.
The Speaker's
failure to decide disqualification placing the controversy in the Supreme
Court's premises is a slur on the role of the Speaker and the capacity of
undeserving persons elevated to the post, in performing their duties enshrined
in the Constitution and in the landmark conventions and precedents.
The Supreme
Court's latest verdict that piecemeal defection, however, making up the total
requisite number to one third, does not save the members from disqualification
who initially defected because the defection is to be seen as it happened on
particular date and time and not in the context of circumstances happening
subsequently. The judgment is landmark in itself and sets out a process of
rethinking with regard to the choice of speakers in state legislative assemblies
or in the parliament in view of the constitutional obligation bestowed on the
office. It is time to redefine the role of such constitutional offices.
[jogindersingh_toor@yahoo.com]
BACK
|
