SC Puts Maharashtra Speaker on Deadline Over Deflection Pleas
GS- II >> Polity >> Anti-Defection Law
Context: The Supreme Court on October 30 directed Maharashtra Assembly Speaker to decide disqualification petitions filed under the Tenth Schedule (anti-defection law) of the Constitution against the Chief Minister Eknath Shinde camp in the Shiv Sena dispute by December 31, 2023.
A three-judge Bench led by Chief Justice D.Y. Chandrachud ordered the Speaker, in his capacity as a tribunal under the Tenth Schedule, to decide the disqualification petitions against the breakaway faction headed by Deputy Chief Minister Ajit Pawar in the Nationalist Congress Party (NCP) dispute by January 31, 2024.
About Anti-Defection Law and its evolution:
- The anti-defection law punishes individual Members of Parliament (MPs)/MLAs for leaving one party for another.
- Parliament added it to the Constitution as the Tenth Schedule in 1985.
- Its purpose was to bring stability to governments by discouraging legislators from changing parties.
- The Tenth Schedule which is popularly known as the Anti-Defection Act was included in the Constitution via the 52nd Amendment Act, 1985.
- It sets the provisions for disqualification of elected members on the grounds of defection to another political party.
- It allows a group of MP/MLAs to join (merge with) another political party without inviting the penalty for defection and it does not penalize political parties for encouraging or accepting defecting legislators.
- As per the 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’.
- But the 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party must be in favour of a ‘merger’ for it to have validity in the eyes of the law.
- The members disqualified under the law can stand for elections from any political party for a seat in the same House.
- The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.
- However, the law does not provide a time frame within which the presiding officer has to decide a defection case.
Issues with Anti-Defection Law (ADL):
- Paragraph 4 of the Law: Paragraph 4 of the Anti – Defection Law creates an exception for mergers between political parties by introducing three crucial concepts:
- Original Party: The party to which a member belongs (this can refer to the party generally, outside the house)
- Deemed Merger:
- Paragraph 4 does not clarify whether the original political party refers to the party at the national level or the regional level, despite the fact that that is how the Election Commission of India recognizes political parties.
- Paragraph 4 states that a merger can take place only when an original party merges with another political party, and at least two-thirds of the members of the legislature party have agreed to this merger.
- Undermining representative and parliamentary democracy: After enactment of the ADL, the MP or MLA has to follow the party’s direction blindly and has no freedom to vote in their judgment.
- Due to ADL, the chain of accountability has been broken by making legislators accountable primarily to the political party.
- Subversion of electoral mandates: Defection is the subversion of electoral mandates by legislators who get elected on the ticket of one party but then find it convenient to shift to another, due to the lure of ministerial berths or financial gains.
- Horse trading: Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.
- Speaker’s controversial role: There is no clarity in the law about the timeframe for the action of the House Chairperson or Speaker in the anti-defection cases.
- Some cases take six months and some even three years. There are cases that are disposed of after the term is over.
- No recognition of split: Due to the 91st Constitutional Amendment Act, 2003, the anti-defection law created an exception for anti-defection rulings. However, the amendment does not recognize a ‘split’ in a legislature party and instead recognizes a ‘merger’.
Important SC judgements regarding disqualifications of legislators:
- Kihoto Hollohan vs. Zachillhu and Others (1992): Here, the SC upheld the validity of 10th schedule of the Constitution.
- The court ruled that the decision of the Speaker on the question of disqualification of a member is subject to judicial review, but the courts should not interfere unless the decision is mala fide, arbitrary or violative of the Constitution.
- Ravi S Naik vs. Union of India and Others (1994): Here, the SC held that the power of the Speaker to disqualify a member under the Tenth Schedule is a quasi-judicial power and that the Speaker must give the affected member an opportunity to be heard before passing an order of disqualification.
- In Keisham Meghachandra Singh verus Manipur Speaker (2020), a three- judge bench led by Justic R. F. Nariman said Speakers should decide disqualification petitions within a maximum three months unless there are ‘exceptional circumstances.
Suggestions related to Anti-Defection Law:
- The Election Commission has suggested it should be the deciding authority in defection cases. Others have argued that the President and Governors should hear defection petitions.
- The Supreme Court has suggested that Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.
- Some commentators have said the law has failed and recommended its removal. Former Vice President Hamid Ansari has suggested that it applies only to save governments in no-confidence motions.
- Various commissions including National Commission to review the working of the constitution (NCRWC) have recommended that rather than the Presiding Officer, the decision to disqualify 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.
- Justice Verma in Hollohan judgment said that tenure of the Speaker is dependent on the continuous support of the majority in the House and therefore, he does not satisfy the requirement of such independent adjudicatory authority. Thus, the need for an independent authority to deal with the cases of defection.
- 170th Law Commission report underscored the importance of intra-party democracy by arguing that a political party cannot be a dictatorship internally and democratic in its functioning outside.
GS- II >> Polity >> Election
Why it’s in the news: A group of judges at the Supreme Court, led by the Chief Justice of India, will begin listening to cases challenging the constitutional validity of the government’s electoral bonds scheme starting October 31. In response to these challenges, the government stated to the court that citizens’ right to know has certain limitations.
What are Electoral Bonds: Introduced in 2018 by the Government of India, electoral bonds are a financial tool to enable anonymous political donations. These bonds are like special notes, payable to the bearer on demand, allowing contributions to political parties without revealing the donor’s identity.
Who can get these bonds: Only registered political parties are eligible to receive electoral bonds, and they must meet specific criteria, including being registered under Section 29A of the Representation of the People Act, 1951, and having secured at least 1% of votes in the most recent Lok Sabha or State Assembly election.
How much can you get: Electoral bonds are available in various denominations, ranging from Rs. 1,000 to Rs. 1 crore. The State Bank of India (SBI) is the sole authorized bank to sell these bonds.
How they work: Any Indian citizen or incorporated body can purchase electoral bonds from specified SBI branches, issued for values like Rs 1,000, Rs 10,000, Rs 1,00,000, Rs 10,00,000, and Rs 1,00,00,000. These bonds have a 15-day lifespan during which they can only be used for donations to be registered political parties.
The rationale for introducing electoral bonds:
- Encouraging Digital Transactions:
- Shift from cash to digital donations.
- Reduce the use of unaccounted or black money.
- Anonymity of Donors:
- Provide donor anonymity.
- No mention of donor names on the bond.
- Exemption for donors contributing less than Rs 20,000.
- Formalizing Political Contributions:
- Channel donations through the banking system.
- Establish a documented trail for transparency and accountability.
- Enhancing Transparency:
- Keep donor identities anonymous.
- Mandated disclosure of electoral bond donations in political parties’ financial statements.
Criticisms of Electoral Bond:
- Lack of Transparency: Donors’ identities remain anonymous, despite disclosure of donation amounts by political parties.
- Potential for Money Laundering: Anonymity in electoral bonds may be exploited for money laundering or routing black money into politics.
- Unequal Advantage to Ruling Parties: Government-owned bank sales allow the ruling party insight into opponents’ funding, risking potential extortion or victimization.
- Bypassing Election Commission Scrutiny: Electoral bonds sidestep ECI approval, undermining its oversight in regulating political funding and ensuring fairness.
- No Upper Limit on Funding: Removal of the funding cap allows unlimited corporate donations, raising concerns about undue influence.
Concerns raised by RBI and EC:
- Increase in Illicit Activities: Electoral bonds may escalate black money circulation, money laundering, and cross-border counterfeiting.
- Undermining Faith in Currency: Encouraging money laundering may set a negative precedent, eroding public trust in Indian banknotes.
- Erosion of Central Banking Principles: Electoral bonds might compromise core principles of central banking legislation.
- Legitimizing Opacity in Elections: The scheme could legitimize opaque election funding practices, reducing transparency.
- Risk of Money Laundering: Electoral bonds may become tools for money laundering, especially for shell companies and foreign donations.