Anti Defection Law in North East Mizoram in News
Anti defection is a blow to political probity and a healthy political culture in the country . Usually north india has been witnessing this kind of distortive and manipulative politics but recently north east indian state Mizoram gave a new example . Recently, Mizoram Speaker Lalrinliana Sailo disqualified Leader of the Opposition, Lalduhoma, as a member of the State Assembly under the anti-defection law. The veteran politician had contested the 2018 assembly polls as an independent and won from the Serchhip constituency and allegedly later defected to the Zoram People's Movement (ZPM). It is mention worthy here that In September, 12 MLAs of the ruling Mizo National Front (MNF) had submitted petitions to Speaker Sailo, demanding disqualification of Mr Lalduhoma. His subsequent conduct and activities attracted disqualification in terms of Para 2(2) of the Tenth Schedule to the Constitution of India.
Anti defection laws in india :
The anti-defection law was passed in 1985 through the 52nd Amendment to the Constitution. The law that was contained in the 10th Schedule of the Constitution came into effect on March 1, 1985.
There are two grounds on which a member of a legislature can be disqualified.
One, if the member voluntarily gives up the membership of the party, he shall be disqualified. Voluntarily giving up the membership is not the same as resigning from a party. Even without resigning, a legislator can be disqualified if by his conduct the Speaker/Chairman of the concerned House draws a reasonable inference that the member has voluntarily given up the membership of his party.
Second, if a legislator votes in the House against the direction of his party and his action is not condoned by his party, he can be disqualified. These are the two grounds on which a legislator can be disqualified from being a member of the House.
However, there is an exception that was provided in the law to protect the legislators from disqualification. The 10th Schedule says that if there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified.
Disqualification on Ground of Defection not to apply in case of Merger:
A member of a House shall not be disqualified, where his original political party merges with another political party and he claims that he and any other members of his original political party—
- have become members of such other political party or, as the case may be, of a new political party formed by such merger; or
- have not accepted the merger and opted to function as a separate group.
The 2003 Amendment :
The last step in the legislative journey of the anti-defection law came in 2003. A Constitution Amendment Bill was introduced in Parliament by the then government to address some of the issues with the law. A committee headed by Pranab Mukherjee examined the Bill.
The committee observed that the provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further it is alsoobserved that the lure of office of profit plays dominant part in the political horse-trading resulting in spate of defections and counter defections.”
The one-third split provision which offered protection to defectors was deleted from the law on the committee’s recommendation. The 2003 Amendment also incorporated the 1967 advice of the Y B Chavan committee in limiting the size of the Council of Ministers, and preventing defecting legislators from joining the Council of Ministers until their re-election. However, as events in the years and decades since have demonstrated, these amendments have had only limited impact.
Role of Speaker :
The Anti-Defection law is clear that the question of disqualification or otherwise under the Tenth Schedule is to be decided by the Speaker. The Courts have only the power of judicial review and any a priori intervention is ruled out. It is an established precedent that the Speaker as the Head of Legislature and being a constitutional authority is not amenable to the jurisdiction of the Courts. However, this applies in respect of the conduct of legislative business where the Speaker is supreme and final authority. However, in areas wherein the Speaker is expected to function as a quasi-judicial authority under the Tenth Schedule, it would definitely invite judicial review and the Office of the Speaker cannot claim any special privilege.
Judicial Review of Anti- Defaction Law
The scope of this anti-defection law was examined in detail in Kihoto Hollohan v Zachillhu , a case that also analyzed various other aspects of this legislation also. Here, the court, speaking about the necessity of an anti defection legislation, said, “The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The decision of the Speaker was not immune from judicial scrutiny. The Court claimed that a dispute regarding the disqualification of a Member of Parliament was not to be treated as a matter of privilege but one which is not legislative but judicial in nature.
The remedy proposed to disqualify the members of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House. The Supreme Court has said that when the party issues a whip, it must be for a very important legislative measure or a trust vote on which the government’s survival is at stake.
