This article appears in the backdrop of the political changes in the UT of Puducherry and speaks about the Anti Defection law. He mentions about how the MLAs have resigned and this was also seen previously in the states like MP and Karnataka as well.
The Anti Defection law was added with the 10th schedule in 1985 to combat political defections which was a common phenomenon where political leaders would join a party, fight elections from it, quit, and join the other parties for their own favors.
This law aimed to provide stability to the Govt of the day and avoid such unfair practices.
The provisions are not just applicable to resignations or money bills or no confidence motion but also to normal voting against the party which meant if a member would vote against the will of the party, he or she would stand defected or disqualified.
The MPs or MLAs had to accept the verdict of the party and cannot go against it which points to how this is against the ideal of representative democracy. If the leader wants to represent the local preferences of the people who have elected him and not go with the favor of the party then he would be a target of defection.
An MP has two roles, one he has to vote in accordance to the wish of his people who has elected him and, on the flipside, he has to vote in favor of the party which has given him this position, hence this puts him in a dilemma.
If he doesn’t adhere to the latter, the anti-defection law will prevail and he stands disqualified while if he doesn’t do the former, he attracts the wrath of the people who have elected him.
The author quotes the scenario of the USA where Donald Trump faced the impeachment charges and several members of the party voted against him but they weren’t defected and this wouldn’t be the scenario in India.
The legislature is a place the laws or legislations have to be debated and discussed but the anti-defection law is hollowing out this place and the core role of the MP is sidelined over here.
The framers of the Indian Constitution chose this very setup of Parliamentary democracy over the Presidential democracy as it has more accountability and is better than the dictatorship of the President. The Parliamentary setup would allow debate and place for questions to be asked through question hour among others but the scenario is very different today.
The anti-defection law more than providing stability is allowing the Govts to be toppled and moving away from its very purpose of existence.
Constitutionally, if one MP or MLA or disqualified he cannot be given a ministerial post without being re-elected but again the scenario is different today. That’s why the author the MP or MLA would rather resign than having to vote and then get defected.
The speaker and his decision also come into the picture as the speaker has to decide whether the resignation is worth but the speaker is usually swayed towards the ruling party and the apex courts’ ruling that the speaker has 30 days to decide hasn’t been adhered to as well.
Then the role of the Supreme court also comes into the picture as most times the matter is taken to the court.
The role of the voters also comes into play as the voters can make sure the person is not re-elected as he or she did not represent their wishes.
All in all, we need to note that this problem is a political problem but not a legal one and political solutions from the party is needed for this and the way a party works vis-à-vis the political ideology, the hierarchy and whom they choose also matters.
Hence, the author says that the law has to be repealed and necessary changes are needed as well.
Free Speech in the Assembly
This article speaks about the role of free speech in assembly and the role played by it.
To understand it we need to note about Parliamentary Privileges; which are rights and immunities that are essential for the functioning of the Parliament and its members as well.
It has been provided since a long time and can discuss anything except for the judges and the judiciary which speaks about the strict separation of powers between the bodies.
The question arises, cannot the state assemblies discuss what has not been enumerated in the state list? Making laws is a different scenario altogether but is the discussion valid becomes a question to ask here to ask; there are three lists mentioned in the Indian Constitution, particularly in the sevenths schedule; Union, State and Concurrent that have varying subjects.
The author provides that the question itself is away from the basic power provided in the constitution as the legislature be it in the center or the state has some rights and powers that can be as follows:
Legislatures also have non-judicial powers of inquiry which is their inherent power and they have the right to know what is going on around them. For instance, if Atomic power is not on the state list, cannot they even discuss about it? They can, it’s as simple.
If the matters in the list overlap, the courts are there to decide the jurisdiction.
In an era of cooperative federalism, if the states are not even aware of the spheres of influence, how will they be able to cooperate with the center
Examining proceedings of the house is too deep to called as merely judicial review.
The author quotes examples of various other countries like Canada and Australia that this is a common phenomenon.
Hence, the author says that it is a hallmark of liberty and legislative tradition that this should be allowed to persist and shouldn’t be curbed.