Defection i.e. changing of parties post-election has been a huge issue faced by the Indian political landscape even though it has reduced significantly post the 1985 amendment. However, still, a lot is left to be done. In this regard, it is pertinent to look at the scope of judicial review of the Speaker’s decision as a tussle between the Legislature and Judiciary and has been ongoing for quite some time. The role of the Speaker cannot be understood completely without taking into account the significant role played by the judiciary in this regard.
Para 7 under Schedule X of the Constitution of India bars the jurisdiction of the courts in respect of any matter connected with disqualification of a member of a House. It is clear from the above clause, that our courts would not be entitled to question the validity of any ‘proceedings’ in Parliament on the ground of irregularity of ‘procedure.’ It was held in the case of M.S.M. Sharma v. Sri Krishna (II) that the validity of the proceedings inside the legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly complied with or followed. No court can go into those questions which are within the special jurisdiction of the legislature itself, which has the power to conduct its own business.
Recently, the Supreme Court in the case of Raja Ram Pal v. Hon’ble Speaker, Lok Sabha has reiterated that Art. 122 (1) and 212 (1) prohibit the validity of any proceedings in legislatures from being called in question in a court “merely on the ground of irregularities in procedure”.
However, a slightly different approach has been taken when matters of Defection are at issue. The Court has held that the Speaker, while deciding cases pertaining to defection of party members, acts as a tribunal and nothing more than that, and that his decisions are subject to the review power of the High Courts and the Supreme Court. The proceedings here are against an elected representative of the people and the judge holds the independent high office of Speaker. Further, if the view taken by the Tribunal is a reasonable one, the Court would decline to strike down an order on the ground that another view is more reasonable. On an analysis of the case laws, it is suggested that the power of judicial review ought to be applied in certain exceptional circumstances where there is sufficient evidence to believe that the Speaker has erred in coming to a decision.
The Court has however laid down in the landmark case of Kihoto Hollohan v Zachillhu that the circumstances in which the decision of the Speaker has been arrived at can be looked into by them. The scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker under Paragraph 6 would be confined to jurisdictional errors only, viz., infirmities based on violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity.
The laying down of these parameters has been a boon since leaving each and every action amenable to judicial review would have negated the whole rationale behind inserting the provision in the Anti Defection laws itself. It is also pertinent to point out the fact that the power of Judicial Review cannot be available at a stage prior to the making of a decision by the Speaker.
However, the law in this regard is not yet settled. This is asserted on the basis that a view is present that the decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose which is not permissible.
The discrepancies between these views are problematic since this can lead to confusion. Unless and until efforts are made to plug the loopholes, the application of this law as and when required will remain riddled with complexities.
Critique and Need for Change –
According to Rajiv Gandhi: “in a democracy, the main responsibility of dealing with corruption in the political sphere lies with the voters.”
The worst form of political corruption in our country has been the pernicious and outrageous phenomenon of defections which had assumed gigantic proportions after the 1967 General Elections. That year alone as many as 500 defections had taken place. Since then over 4,000 “aya rams” and ”gayarams” have changed parties in the various states mainly to become Chief Ministers, Ministers and Chairmen of public sector corporations.
In this regard, it is suggested that punitive costs for defection can help maintain political stability and respect the people’s mandate. This can only be done by ensuring that the Anti Defection law becomes water tight on paper while being transparent in implementation. Partisanship, personal gains et al in political appointments should not act as a cog to governance and development.
There is no easy way to plug all the loopholes in the Anti-Defection Act. Every attempt to deal with the problem will create new problems of its own. One thing is clear, however: even in cases where the act can work, it is not being allowed to work because the adjudicating power has been given to the Speaker. An amendment is thus called for in the act wherein this power is taken away from the speaker and entrust it to an impartial authority. Not only does the adjudicating authority of such disputes need to be entrusted in an impartial authority but an amendment needs to be brought in place. This amendment ought to put finality to the debate as to whether the courts ought to have any jurisdiction in defection matters even as a forum of appeal. The electorate has put their faith in their elected legislators and a transparent and impartial process should be put in place to ensure smooth functioning and governance.
An amendment in line with the aforementioned requirements is essential to be brought about. This amendment ought to ensure that an impartial authority in the form of a tribunal is set up by an act of Parliament to hear disputes relating to defections and other complaints regarding parliamentary rules and procedures which allege violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity. The members of this tribunal would be selected by an independent committee to ensure non-partisanship. This tribunal would be vested with absolute and unequivocal authority to adjudicate on disputes of the nature mentioned above.
No court or any other authority would have the right to question or look into its decisions. The principle of balance of power is essential to be upheld. Allowing the court to intervene in procedural disputes of Parliament is a violation of this principle which needs to be curbed for perpetuity. This aforementioned suggested amendment ought to bring to rest the confusion surrounding the process for adjudication of disputes relating to defections and curbing the over reach of the courts into matters which are solely in the realm of the Legislature.