एन्टी डिफेक्शन ला को कमजोर किया जा रहा ?
P.D.T. Achary
PTI
राजनीतिक वर्ग दल-बदल विरोधी कानून को कमजोर कर रहा है
The political developments in Maharashtra throw up troubling questions about how the political class is emasculating / कमजोर करना the anti-defection law which was described by the Supreme Court of India as :
कार्यालय के लालच से प्रेरित और गैर-सैद्धांतिक दलबदल को विधायी रूप से कथित राजनीतिक बुराई के खिलाफ संवैधानिक सुधार
“constitutional correctives against a legislatively perceived political evil of unprincipled defections induced by the lure of office and monitory inducements”.
दलबदल द्वारा लोकतंत्र के विनाश के खतरे की ओर आकर्षित किया
Almost with the farsight of a clairvoyant, the Supreme Court drew the attention of citizens to the very danger of subversion of democracy by unprincipled defection.
The ongoing developments in Maharashtra have once again brought before the country the reality of what the Supreme Court also described as the
💐political evil of unprincipled defection.
27 जून के आदेश से असंतुष्ट विधायकों को अनुचित लाभ मिलता है
But the greatest irony is that the order of the Supreme Court, on June 27, on petitions from the dissidents in the Shiv Sena,
💐gives undue advantage to the dissident legislators.
💐The Court has granted them a longer time to submit replies than the rules mandate.
इससे राजनीतिक घटनाक्रमों को गति देने जा रहा है जो एक बड़े पैमाने पर पुनर्जीवित होंगे जिसे सर्वोच्च न्यायालय ने राजनीतिक बुराई के रूप में वर्णित किया
This order is going to set in motion certain political developments which will resurrect पुनर्जीवित in a big way what the Supreme Court characterised as political evil; it was to prevent this that the anti-defection law was enacted in 1985.
Important thrust areas
To put the issue in perspective, let us quickly run through the thrust areas of this law.
कानून के बारे में
💐It was enacted as the Tenth Schedule of the Constitution of India, in 1985, under Rajiv Gandhi’s premiership.
💐 It was actually the culmination of long years of debate, deliberations, disagreements, formulations and reformulations, with finally a consensus.
💐The law as it was enacted provided for the disqualification of a legislator -
belonging to a political party if he voluntarily gave up his membership of his party or
if he defied the whip of his party by voting contrary to its directions in the legislative house.
Initially, there were two exceptions provided in the schedule
which would exempt a legislator from disqualification.
1 The first exception
💐was a split in their original political party resulting in the formation of a group of legislators.
💐If the group consisted of one third of such legislators of that party, they were exempted from disqualification.
💐This exception was deleted from the schedule through a Constitution Amendment Act of 2003 because of frequent misuse of this provision.
2 The second exception was
💐 ‘merger’ which can be invoked when the original political party of a legislator merges with another party and not less than two thirds of its legislators agree to such a merger.
💐So, if a legislator shows that his original party has merged with another party and he and his colleagues who constitute two thirds of the legislators of that party have agreed to the merger, then he and his colleagues will be exempted from disqualification.
Interpretation of ‘merger’
विलय' की व्याख्या
It is this exception contained in paragraph four of the schedule
बड़ी संख्या में विधायकों द्वारा सत्ताधारी दल में शामिल होने के लिए सहारा
💐which has been taken recourse to by a large number of legislators across States and even in Parliament to defect to the ruling party.
merger of two thirds of legislators
These legislators interpreted for themselves the term ‘merger’ to mean the merger of two thirds of legislators.
They convinced themselves that the merger of their original party is not necessary, mainly because it is not a possibility. Politics being the art of the possible, they believed that what is not ordinarily possible can be conveniently ignored.
यदि उन्हें दो तिहाई संख्या मिलती है तो वे एक अलग समूह बना सकते हैं और सरकार गिरा सकते हैं और फिर भारतीय जनता पार्टी की मदद से सरकार बना सकते हैं
Now, this story is being repeated in Maharashtra. But there is a little difference here.
1 It appears that the dissidents of Shiv Sena believed that if they get the two third number they can form a separate group and topple the government and
2 then form a government with the help of the Bharatiya Janata Party.
Although the Maharashtra Chief Minister has resigned and the direction of the Governor to hold a floor test has become infructuous, the issue arising out of the anti-defection petitions is still live and needs to be addressed by the next Speaker.
The law imposes the condition of merger of the original political party (namely, the Shiv Sena) which is not likely to happen now or in the future.
यदि मूल पार्टी का विलय नहीं होता है, तो ये असंतुष्ट अयोग्यता से किसी अपवाद का दावा नहीं कर सकते, चाहे वे दो तिहाई हों या तीन चौथाई
If there is no merger of the original party, then these dissidents cannot claim any exception from disqualification no matter whether they are two thirds or three fourths.
recent judgment of the Goa Bench of the Bombay High Court (Girish Chodankar vs The Speaker, Goa State Legislative) that held
विधान सभा के दो तिहाई सदस्यों के विलय को मूल पार्टी का विलय माना जाता है ,ताकि उन्हें उम्मीद की किरण दी जा सके
1 that the merger of two thirds of Members of the Legislative Assembly is deemed to be the merger of the original party seems to have given them a ray of hope.
2 This judgment, unfortunately, does not reflect the correct law and needlessly complicates it.
3 Nevertheless, this judgment too emphasises the need for merger with another party.
4 So, the legal position is if the dissidents do not merge with another party they will be disqualified now or later.
5 They cannot operate as a separate group in the Assembly because the law does not permit them to do so.
On disqualification
याचिकाएं इस आधार पर दायर की गई हैं कि उन्होंने स्वेच्छा से पार्टी की सदस्यता छोड़ दी है
Now, disqualification petitions have been filed by the Shiv Sena against 16 of the dissidents under paragraph 2(1)(a) on the ground that they have voluntarily given up the membership of the party.
The question of whether they have voluntarily given up the membership of the party is decided on the -
basis of the conduct of a member.
In Ravi S. Naik vs Union of India (1994), the Supreme Court
आचरण से एक निष्कर्ष निकाला जा सकता है कि उसने स्वेच्छा से उस पार्टी की सदस्यता छोड़ दी
had said “an inference निष्कर्ष can be drawn from the conduct of a member that he has voluntarily given up the membership of the party to which he belongs”.
जिस पार्टी की सरकार उनके कारण गंभीर संकट का सामना कर रही है, उसकी एक महत्वपूर्ण बैठक में जानबूझकर गैर-भागीदारी
Wilful non-participation in a crucial meeting of a party whose government is facing a serious crisis because of them, may, in the present circumstances, offer the ground for disqualification.
Point of intervention
However, the notice of no-confidence against the Deputy Speaker has added another piece to the jigsaw puzzle.
The intervention by the Supreme Court too has thrown up some crucial questions regarding the operation of the anti-defection law.
1 The first question
क्या डिप्टी स्पीकर के फैसले से पहले कोर्ट किसी स्तर पर हस्तक्षेप कर सकता है
💐 is whether the Court can intervene at a stage prior to the decision by the Deputy Speaker.
💐A Constitution Bench of the Supreme Court had held in Kihoto Hollohan (1993) that judicial review cannot be available prior to the making of a decision by the Speaker nor at an interlocutory stage of the proceeding.
💐Giving longer time to the dissidents to submit replies is contrary to this decision.
💐The mandatory period for replying to the charge is seven days under the rule.
💐The court gave them 15 days. It is an intervention at the interlocutory stage which was barred by the Constitution Bench.
Another question of considerable importance
क्या उपाध्यक्ष अयोग्यता याचिका पर फैसला कर सकते हैं जब उनके खिलाफ अविश्वास प्रस्ताव लंबित
💐is whether the Deputy Speaker can decide the disqualification petition when a no-confidence motion is pending against him?
💐 The Supreme Court had held in Nabam Rebia (2016) that the Speaker shall not decide the disqualification cases till the no-confidence motion against him is disposed of.
💐In the Maharashtra case, the Deputy Speaker who had assumed the duties of the Speaker because of the vacancy in the office of the Speaker, did not admit the notice of no-confidence because he had doubts about the authenticity of the notice.
The House rules clearly say
अध्यक्ष/उपसभापति के खिलाफ अविश्वास की सूचना को पहले स्थान पर स्वीकार करने की आवश्यकता है जो केवल अध्यक्ष द्वारा की जाती है
💐that the notice of no-confidence against the Speaker/Deputy Speaker needs to be admitted in the first place which is done only by the Speaker.
💐 Rules do not recognise any other authority for admitting a notice.
💐But it is the House which takes the final decision on the motion.
💐If the notice of no-confidence does not contain specific charges, it can be disallowed by the Speaker.
💐Therefore, in this case, there is no occasion to say that the Speaker cannot be a judge in his own cause.
Disallowing a notice
does not prevent Members from giving another notice complying with the requirements of the rule.
नोटिस तभी दिया जा सकता है जब सदन को बुलाया जाए। जब नोटिस दिया गया तो विधानसभा नहीं बुलाई गई इसलिए, उपाध्यक्ष के खिलाफ नोटिस की नियमों के तहत कोई वैधता नहीं हो सकती है
Further, the notice can be given only if the House is summoned. When the notice was given, the Assembly was not convened. So, the notice against the Deputy Speaker can have no validity under the rules. Therefore, it cannot be said that the notice is pending against the Deputy Speaker.
An observation, its spirit
💐The anti-defection law is facing many challenges.
💐 Since it deals with the political class, the challenges are grave.
💐The law, though not perfect, is a serious attempt to strengthen the moral content of democracy.
Piloting the Bill on the Tenth Schedule, then Prime Minister Rajiv Gandhi, said, “There are lots of areas in this Bill which are grey. We are covering new grounds… it is better for us to tread cautiously than to make serious errors and repent later. There will be shortcomings in this Bill but as we see and identify those shortcomings we will try to overcome them.”
इस विधेयक में बहुत सारे क्षेत्र हैं जो ग्रे हैं। हम नए आधारों को कवर कर रहे हैं ... गंभीर गलतियाँ करने और बाद में पछताने की तुलना में सावधानी से चलना हमारे लिए बेहतर है। इस विधेयक में कमियां होंगी लेकिन जब हम उन कमियों को देखेंगे और पहचानेंगे तो हम उन्हें दूर करने का प्रयास करेंगे।
💐Parliament needs to recapture the spirit of this observation.
💐The anti-defection law needs to be strengthened and not weakened. The nation expects better compliance of the law by the lawmakers.
P.D.T. Achary is former Secretary General, Lok Sabha
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