UPSC MAINS 2019 : Karnataka political crisis: Role of Governor and Speaker

Karnataka political crisis- Role of Governor and Speaker

Topic : Karnataka political crisis: Role of Governor and Speaker

Topic in Syllabus: General Studies Paper 2: Indian Polity

 

Introduction:

Karnataka political crisis- Role of Governor and Speaker

Allegations of legislators defecting in violation of the law have happened in many states across India and such defections have led to grave constitutional crises in the states and prompted judicial interventions that have only offered partial solutions. Recently Karnataka Assembly Speaker Ramesh Kumar  rejected the resignations of eight of the 13 Congress-Janata Dal (Secular) MLAs who wanted to quit the House as they had not filed their appeals in the prescribed format.

The main intent of the law was to combat “the evil of political defections”. However over the years there have been criticisms over the disqualifications and several issues in relation to the working of this law which need to be discussed.

 

What is the anti-defection law?

  • The Tenth Schedulewas inserted in the Constitution in 1985 by the 52nd Amendment Act.
  • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
  • The decision on question as to disqualification on ground of defection is referred to the Chairman or the Speaker of such House, and his decision is final.
  • The law applies to both Parliament and state assemblies.

 

Features of anti defection law :

  • Disqualification
    • If a member of a house belonging to a political party:
      • Voluntarily gives up the membership of his political party, or
      • Votes, or does not vote in the legislature, contrary to the directions of his political party.  However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
      • If an independent candidate joins a political party after the election.
      • If a nominated member joins a party six months after he becomes a member of the legislature.
    • Power to Disqualify
      • The Chairman or the Speaker of the House takes the decision to disqualify a member.
      • If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the  House elected by that House shall take the decision.
    • Exception 
      • A person shall not be disqualified if his original political party merges with another, and:
        • He and other members of the old political party become members of the new political party, or
        • He and other members do not accept the merger and opt to function as a separate group.
      • This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.

 

Overall problems in anti-defection law

  • The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea.
  • The law restricts a legislator from voting in line with his conscience, judgement and interests of his electorate.
  • The law allows a nominated member to join a party but restricts the same to an independent member, thus discriminating between the two.
  • Vesting of decision-making authority in the presiding officer is criticised as he may not exercise this authority in an impartial and objective manner due to political exigencies. He also lacks the legal knowledge and experience to adjudicate upon the cases.
  • Since the role of the Speaker is very important, he or she must be an impartial arbiter. Under the current rules, a lawmaker elected as Speaker (or Chairman) is allowed to resign from the party, and rejoin it if the person demits office. But Speakers in India have often, invariably allowed themselves to be used for gain of their party or leader.

 

Suggestions by committees

  • Law commissionin its 170th report,1999  suggested that the question of disqualification of a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.
  • The rationale behind this is that the legislators should not be free to ditch the voters who vote not only the individual but also opt for a particular party on the basis of its manifesto.
  • The manifestos of the parties should also be given statutory recognition so that they may not work against their manifestos and act in accordance with the mandate of the people.
  • National Commission to Review the Working of the Constitution(NCRWC), 2002 has recommended that the power to decide on questions as to disqualification on ground of defection should vest in the Election Commission instead of in the Chairman or Speaker of the House concerned.
  • It also recommended that defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term. The vote cast by a defector to topple a government should be treated as invalid.

Evil of political defections need to be addressed seriously. Anti-defection law when was passed, it aimed at bringing down the political defection but due to ever increasing political dishonesty and corruption this law never evolved properly. It is high time that the menace of corruption and defection needs to be combated which has eroded the values of democracy

 

Advantages of anti-defection law:

  • Provides stability to the government by preventing shifts of party allegiance.
  • Ensures that candidates remain loyal to the party as well the citizens voting for him.
  • Promotes party discipline.
  • Facilitates merger of political parties without attracting the provisions of Anti-defection
  • Expected to reduce corruption at the political level.
  • More concentration on governance is possible.
  • Provides for punitive measures against a member who defects from one party to another.

 

Challenges posed by anti defection law:

  • The law doesn’t touch on the time period for the speaker to decide on disqualification.
  • The anti-defection law raises a number of questions, several of which have been addressed by the courts and the presiding officers.
  • Resignation v/s Disqualification as seen in Karnataka politics.
  • The law impinge on the right of free speech of the legislators:
    • This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (KihotoHollohan vs Zachilhu and others). The court said that “the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct…above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.
  • Doubts regarding “voluntarily” resigning from a party:
    • According to a Supreme Court judgment, “voluntarily giving up the membership of the party” is not synonymous with “resignation”.
    • It has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.
    • In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned
  • Regarding Whips:
    • Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue.
    • It restricts a legislator from voting in line with his conscience, judgement and interests of his electorate.
    • Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
  • Challenging the decision of the presiding officer in the courts:
    • The law states that the decision is final and not subject to judicial review. There are several instances that presiding officers take politically partisan view.
    • The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.

 

Speaker should not be the final decider because:-

  • The Speaker has been assigned the role of an impartial arbiter. But the conduct of speakers has left much to be desired.
  • A lawmaker elected as Speaker/Chairman is allowed to resign from his/her party, and rejoin it if he/she demits office. But speakers have invariably allowed themselves to be used for gain of their party or leader.
  • There have been many instances which show there is a need for more clarity:-
    • The Uttarakhand Assembly Speaker disqualified nine MLAs from the ruling party in 2016, despite the MLAs not leaving the Congress or voting against it in the Assembly. Furthermore, while the MLAs had voiced dissenting notes against the Budget, the Budget itself was declared passed without voting by the Speaker.
    • Such instances highlight the need for greater clarity in the interpretations associated with the Anti-Defection Law. Perhaps, it might be better for such critical decisions, associated with representative disqualification, to be determined by the President instead, with inputs from the Election Commission.

To setting a dangerous precedent

  • The Supreme Court order raises the concern whether it does not constitute a perilous precedent for granting ad hoc judicial exceptions from constitutional provisions on defection and set the tone for future judicial intervention to suspend the operation of any whip in respect of a few.
  • Alternatively, the court, which is understandably reluctant to intervene in the Speaker’s power ahead of his decisions, could have refrained from making any orders about the legislators’ presence during the trust vote, and made it clear that any action against them arising out of their absence or manner of voting would be subject to judicial review.

Supreme Court burdened

  • To be fair to the Supreme Court, it is being burdened with the task of unravelling political knots created by amoral strategems.
  • In this case, the “political thicket” into which the court has been dragged has its origins in manoeuvres to reduce the combined strength of the Janata Dal(S) and the Congress.
  • In a bid to thwart tactical resignations, the government and the Speaker adopted the counter-strategy of not immediately accepting them, but initiating or pursuing disqualification proceedings.

Questions in litigation

  • One of the questions in the litigation is whether it is resignation or disqualification that should get priority.
  • The objective of disqualifying the MLAs rather than allowing them to quit will not save the government, but it will prevent them from taking oath as ministers in an alternative Cabinet.
  • Though the court’s order recognises the Speaker’s authority to rule whether the resignations are genuine, and fixes no time-frame, it is a Pyrrhic victory; for, their continuance as members puts them under no obligation to vote for the government in view of the allowance given to stay away during the vote.

 

Way Forward:

  • Final decision on disqualification should be taken by President or Governor because too much importance has been given to speaker as per anti defection law is concerned.
  • More stringent and effective law is a need of hour.
  • Tribunal needs to be created for dealing with cases like this.
  • Proper division of power should be put in place between Legislature, executive and judiciary.
  • Disqualification procedure should continue even after resignation.

 

Conclusion:-

The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. The true objective to enhance the credibility of the country’s polity by addressing rampant party-hopping by elected representatives should be pursued rather than using it as a political tool to pursue narrow interests of party.

  • The dissident MLAs risk nothing other than their seats, certainly not the opportunity to join the Cabinet of a successor-government.
  • When the court takes up the substantive questions of law for adjudication, it should squarely address the new-found interplay between issues of resignation and disqualification, lest it become a perennial source of political controversy.

 

Sample Question:

In Context with present Karnataka state political crisis, Describe the discretionary roles on the speakers and Governor in line with constitutional validation (250 words)

 


 

Karnataka political crisis Role of Governor and Speaker infographic