Not only an MLA but any interested person is entitled to bring to the notice of the Speaker the fact that a member has incurred disqualification under the Tenth Schedule of the Constitution (anti-defection law) and the presiding officer is bound to take action on the complaint, the Supreme Court held on Thursday.
A three-judge Bench of Chief Justice Altamas Kabir and Justices J. Chelameswar and Vikaramait Sen said: “On receipt of such information, the Speaker would be entitled to decide under paragraph 6 of the Tenth Schedule whether the member concerned had, in fact, incurred disqualification and to pass appropriate orders on his findings.”
Writing the judgment on an appeal filed by Odisha Speaker, the CJI said: “In a case such as this, where all four members elected from the Nationalist Congress Party had changed their allegiance to the Biju Janata Dal, there would be no one to bring the fact to the notice of the Speaker and ask for their disqualification.”
After the four MLAs crossed over to the BJD, the president of the NCP, Utkar Keshari Parida, who was not an MLA, filed an application to the Speaker seeking their disqualification. As no action was taken on the complaint, he moved the Orissa High Court, which held that the writ petition was maintainable.
Dismissing the Speaker’s appeal against this order, the Supreme Court said: “Although disqualified under paragraph 2(1) (a) of the Tenth Schedule, in the absence of any application for disqualification to the Speaker, they [the four MLAs] would continue to function as members of the Assembly, which was not the object sought to be achieved by the 52nd Amendment, by which the Tenth Schedule was introduced in the Constitution.”
The Bench said: “The Statement of Objects and Reasons of the Bill, which finally became the Constitution [52 Amendment] Act, 1985, indicated that the evil of political defection had become a matter of national concern and if it was not checked, it could very well undermine the very foundation of our democracy and the principles which sustain the same. In such an event, if the provisions of the Tenth Schedule are interpreted to exclude the right of any person interested to bring to the notice of the Speaker of the House the fact that any or some of its members had incurred disqualification on any of the eventualities indicated in paragraphs 2 and 4 therein, it would render the inclusion of the Tenth Schedule in the Constitution otiose and defeat the objects and intent of the 52nd Amendment.”
