Speaker Sir SC is divided on defections

Free Thinker *

These days it is really interesting to take note of the Apex Court Judgements on defection cases. On 21 January 2020 it was held that the Speakers of LoK Sabha and Legislative Assemblies ought to decide disqualification petitions within three months which is a "reasonable period".

Again on 14 Feb 2020 another Supreme Court bench headed by the CJI himself declined to give a deadline to the Speaker in a disqualification proceedings pertaining to Tamil Nadu Assembly. Chief Justice maintained that the Speaker must take a decision in accordance with law.

As per the existing Anti-defection law (Tenth Schedule of the Constitution ) no deadline is mandated to decide defection petitions in the court of the Speaker. Going by the words of the existing law no one can force the presiding officer to take a decision within a stipulated time.

I am certainly not a legist but a student of law and also a keen observer of law particularly the Constitutional law. We were taught by the teachers that the fundamental duty of the legislative bodies including Parliament and State Assemblies is to make laws. Basic function of the courts is to interpret and apply the laws.

And the executive (government) should implement the laws and also to enforce the judicial pronouncements of the courts.

If the laws are faulty judiciary may direct or give a hint to the law making bodies to change the law or amend the law. Normally the judiciary does not legislate.

But for the sake of delivering justice sometimes the judiciary tends to play the role of legislature.Then we can hear the grumbling "judicial overreaching" in various quarters particularly in the political circle.

Sometimes I feel that judiciary is casual in dealing with smaller States or lesser mortals. I may be blatantly wrong when I have such thoughts.

The eyes of law are not squint. All are equal before the eyes of law. Sometimes negative thoughts enter our celebrum. After all we all are humans. Tamil Nadu is a big State whereas Manipur is tiny.

If I understand correctly the anti-defection law was conceived in order to bring about political stability in the country and as well as in the States by Constitutionally curbing frequent crossing of the floor i.e., political defections by the elected members of Parliament and State Assemblies.The fundamental object of the law is to maintain political stability.

By some defections here and there if the stability of the government is ensured - the intrinsic purpose of the law is served. If the custodian of a legislative body can ensure political stability without compromising any law of the land that is not unacceptable.

Holding the defection petitions for a long time, the presiding officer is not breaking any law of the land. Yes of course it might get involved with issues of political morality and turpitude. Frankly speaking these days politics and morality are diametrically opposite to one another.

One should never forget the position of the Speakers too ; he is supposed to be politically neutral ; but in reality he can't. In the present dispensation he is de jure neutral but de facto political still.

We should not forget the fact that he has to contest the next election - how can he ignore the party line.This is another issue to be looked into by the law makers and also by all the parties across political spectrum.

The paragraph 7 of the Amended Tenth Schedule -"Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule" - this paragraph was declared invalid by the Apex Court as per majority opinion in Kihoto Billion vs Zachilhu.

I am not very familiar with the arguments and counter-arguments in the case. But my only limited point or innocuous query is - can the legislature's autonomy be curtailed by an infallible principle of basic structure of Constitution which is ever expanding ?

It is also pertinent to mention that High Courts had refrained from issuing mandamus to the Speaker in disqualification matters of MLAs.High Courts held that merely on the basis of writ petitions they can't infringe upon the Speaker's Constitutional domain.

Finally Mr Speaker Sir, as long as you go by the law book no one can touch you .On Friday the Chief Justice of India himself has given his word and has strengthened your ground. So, the time frame given earlier has the persuasive intent nothing more and nothing less.The ball is still in your court.

I am not instigating but simply telling the position of law - legality or morality can't override a Constitutional provision ( until and unless the law is either changed or amended ).

"Needless to mention the Speaker had to take a decision in accordance with the law", S.A Bonde CJI ( 14 Feb 2020).