Defection Redefined: Political Crisis of Tamil Nadu
On 18th September, P. Dhanapal the Tamil Nadu legislature speaker disqualified 18 legislators under “The Members of the Tamil Nadu Legislative Assembly (Disqualification Grounds of Defection) Rules, 1986” drafted in accordance with the Tenth Schedule and Articles 102 (2) and 191 (2)) of the Indian Constitution. The ground on which the legislators are disqualified is that they were engaged in anti-party activities. While when the decision of the Speaker was laid before the Madras High Court the main contention raised by the legislators was that they were not against the party they were merely against the Chief Minister K Palaniswami. Now the question arose to be decided by the Madras HC is that whether a leader of a party can be treated as an individual or the entire party by himself because only in the case the individual is treated as a party then only the legislators stand defected? This article is going to look into the aspect of defection in the present context.
The Tenth Schedule of the Constitution seeks to bring to an end the malady of defection. Defection means that a Member of Parliament or that of a State Legislature after getting elected as a candidate set up by some recognized political party defects to another political party. But here, in this case, it is not the clear case whether the 18 legislators have defected or tried to defect to the other party as it was a case of inter-party dispute regarding who would be the leader. The defection law is wider; it covers nominated and independent members. The meaning of defection is also wider. It includes within its range defiance of party whip as well, as far as voting in the House is concerned. The main objective of the defection law is enshrined in two folds; first, it intends to promote political morality and considers political betrayal as unethical and totally unacceptable. Defection amounts to cheating both, one’s original party and voters of the constituency. Second, it intends to promote stability of the government by outlawing defection which destabilizes the government which must have majority support in the Lower House for its survival.
As per the Constitution, the alleged act of disqualification are finally determined by the President or the Governor, as the case may be, on the basis of the findings of the Election Commission. The Anti-defection law provides the only exception to it. Originally the jurisdiction of the courts was totally excluded under paragraph 7 of Tenth Schedule, which was later on revoked by the Supreme Court in the case of Kihoto Hollohan to be invalid because it had not been ratified by half of the State Legislatures as required under clause (2) of Article 368.
Paragraph 6 of the Tenth Schedule says that the question whether a member has become subject to disqualification shall be referred to the Chairman of the House or the Speaker and his decision shall be final. The words “shall be referred to” suggest that some complaint has to be filed and the Chairman or the Speaker will not directly take cognizance of it. It is assumed that the alleged defector shall be informed of the allegations and shall be given a hearing. It is further submitted that despite what has been said in Jagjit Singh v. State of Haryana the Speaker shall not combine in himself both the role of a judge and even parts that of a witness. In other words, the rules of natural justice shall be followed. However, the job of the decision maker is limited to reach a finding whether the alleged defector is guilty of defection or not. The punishment is given in the Constitution and it automatically follows.
The second part of paragraph 6 of Tenth Schedule says that proceedings before the presiding officer of the House on the issue of any alleged defection shall be treated as proceedings in Parliament or proceedings in a State Legislature, as the case may be, within the meaning of Articles 122 and 212 respectively. The decision of the presiding officer can be challenged in a court of law for violation of a constitutional mandate, breach of rules of natural justice, malafides, and on the ground of perversity. These grounds possibly come within the range of illegality. The truth is that specific provisions of the Constitution relevant for the purpose are few that can be violated; mala fides is almost impossible to establish; rules of natural justice are flexible; and therefore the court interfere, when it chooses to interfere, on the ground of perversity giving it a wide meaning covering within it the mode of arriving at the decision and keeping it pending for an unduly long period.
So the situation presently does not in any way come under the defection law and the precedents set till now. This case has opened a Pandora box of legal question regarding defection that has to settle with the Court.
Author: Durgesh Shukla
College: National Law University Odisha
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