Legislative Council in States: Issues & Way Forward

[op-ed snap] Defection & dissent

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Anti defection law/ 10th schedule

Mains level : Anti Defection law in spirit and letter

Context

The Supreme Court upheld the disqualification of 17 Karnataka legislators by then speaker. 

Judgment

    • On disqualification – The court validated the speaker’s decision to disqualify the MLAs.
    • Yes to polls – It permitted them to contest the by-polls. It set aside the speaker’s order barring the disqualified MLAs from contesting elections for the remainder of the assembly’s term.

Analysis of the judgment

    • By law – the verdict stays with the letter of the law. The Representation of the People Act, 1951, and the Tenth Schedule of the Constitution does not give the Speaker “the power to indicate the period for which a person is disqualified.”
    • Article 164(1)(B) – deals with the consequences of disqualification of an MLA and states that an MLA disqualified under the Tenth Schedule is also disqualified from being a minister for the rest of the term or where he contests any election. 
    • This provision permits an MLA disqualified under the Tenth Schedule to be re-elected to the House.

Is the legal approach correct and complete?

    • Strict legal reading took away the force of the anti-defection law. 
    • The intent of legislators – The 17 MLAs defected with a clear intention of triggering the collapse of the Congress-JD(U) government. They can now contest on a BJP ticket.
    • Power to impose penalties – Can the speaker or the court pass orders that are punitive against the disqualified legislators when the letter of the Constitution does not prescribe such penalties for their actions?
    • Double-edged sword – Such punishment could be a double-edged sword. Disqualification for the entire term can be used by ruling parties to manufacture a majority or by Opposition parties to punish dissent. 
    • The court decision is based on the fear that “extreme stand could have a chilling effect on legitimate dissent.”

Way ahead

    • The court bats in favor of a stronger anti-defection law. 

Back2Basics

Explained: Anti-Defection Law

 

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