Comment

Disqualification moves

 

The objective of the landmark anti-defection law of 1985 was to enhance the credibility of the country’s polity by addressing rampant party-hopping by elected representatives for personal and political considerations. While this enactment brought about some order in the system, some politicians found ways of circumventing it over the years. On December 4, when Chairman of the Rajya Sabha, M. Venkaiah Naidu, decided to disqualify two dissident Janata Dal (United) leaders without referring it to the committee of privileges, was it a hasty decision or a case of speedy justice?

The rules

A member of Parliament or the State legislature incurs disqualification if he either voluntarily gives up the membership of the party or votes or abstains from voting in his legislature, contrary to the direction (whip) of the party. In the present cases, that of Sharad Yadav and Ali Anwar Ansari, the allegation against the members was that by indulging in anti-party activities they had “voluntarily” given up the membership of their party, namely the JD(U). According to a Supreme Court judgment, “voluntarily giving up the membership of the party” is not synonymous with “resignation”. It could be “implied” in participation of the member in anti-party activities.

In two orders pronounced simultaneously, Mr. Naidu declared that Mr. Ansari and Mr. Sharad Yadav had ceased to be members of the Rajya Sabha with immediate effect on account of having incurred disqualification in terms of paragraph 2(1)(a) of the Tenth Schedule to the Constitution. Mr. Ansari was going to complete his term as a member of the Rajya Sabha on April 2, 2018 while Sharad Yadav’s term is set to expire on July 7, 2022.

The orders of the Chairman have established a benchmark, both in terms of speedy disposal (about three months) as well as the quality of the decisions. Since the anti-defection law came into place, there have been a large number of cases where proceedings have dragged on for years.

A reading of the rules prescribed by the Rajya Sabha show that the Chairman is required either to proceed to determine the question himself or refer it to the committee of privileges for a preliminary inquiry. But reference to the committee is contingent upon the Chairman satisfying himself that it is necessary or expedient to do so; it is not mandatory. As a matter of fact, in several cases in the past, the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha, whenever “the circumstances of the case” so warranted, have “determined the question” themselves, without referring it to the committee.

Facts of the cases

In the present case, there was little dispute about the facts relating to anti-party activities undertaken by the respondents, including aligning with a rival political party (Rashtriya Janata Dal). The thrust of the arguments in defence was that the members being proceeded against were the ‘real party’ and, as a matter of fact, they filed a counter-petition for disqualification of the member of the JD(U), who had petitioned for their disqualification. However, this argument fell through because the Election Commission of India “recognised” that the JD(U) under the leadership of Mr. Nitish Kumar was “the party”. In any case, in the interests of natural justice, the respondents were given adequate opportunity to present their arguments on the petitions filed against them. Apart from the written statements, the members were given the opportunity of personal hearing, which they availed. The cases were decided in a short period of three months, but not in a hurry.

While delivering the order, Mr. Naidu made it clear that while dissent is a political right, it should be articulated appropriately without striking at the roots of the functioning of the party-based democratic system. The order of Mr. Naidu concludes with a reference to the malady of delays in deciding cases of disqualification. “I am of the considered opinion that, such petitions which go to the root of the democratic functioning and which raise the question, whether a particular legislator (lawmaker) is entitled to sit in the Legislature or not, should not be kept pending and dragged on by the Presiding Officers, with a view to save the membership of the persons, who have otherwise incurred disqualification or even to save the Government, which enjoys majority only because of such type of persons. I am of the view that, all such petitions should be decided by the Presiding Officers within a period of around three months, of course, by giving an opportunity, as per law, to the concerned Members against whom there are allegations, which lead to their disqualification under the Tenth Schedule to the Constitution of India, so as to effectively thwart the evil of political defections, which if left uncurbed are likely to undermine the very foundations of our democracy and the principles which sustain it.”

It is pertinent here to mention that the Chairman recalled that the then Law Minister, A.K. Sen, while piloting the bill in 1985 in the Lok Sabha had clearly stated that if defection was to be outlawed effectively “then we must choose a forum which will decide the matter fearlessly and expeditiously”.

Elaborating on the intention behind the anti-defection bill, the former Prime Minister Rajiv Gandhi had this to say in the Rajya Sabha in 1985: “What we have tried to do in this bill is to make it as black and white as possible so that there are no grey areas where somebody has to take a decision. The decision should be automatic, backed by a sequence of events, which are on record, so that there is no debate about it…”

Further, Rule 7(3) of the Members of Rajya Sabha (Disqualification on Grounds of Defection) Rules clearly stipulates that a member against whom the petition has been made, has to forward his comments to the chairman within seven days of the receipt of copy of the petition. The seven-day time clearly indicates the need for expeditious disposal of the petition.

Mr. Naidu’s orders assume significance in the context of instances where members have switched sides and became ministers in the governments, which are formed by parties against whom they contested and won. Yet, no action was taken in such instances defeating the very objective of the anti-defection law. It is hoped that presiding officers of State legislatures will take the advice of the Chairman of the Rajya Sabha in the right spirit.

Vivek K. Agnihotri is former secretary-general of the Rajya Sabha

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Printable version | Sep 20, 2020 10:44:34 PM | https://www.thehindu.com/opinion/op-ed/disqualification-moves/article21615849.ece

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