In a judgment which could be a game changer in State politics the Supreme Court has urged Parliament to rethink on whether a Speaker should decide on disqualification petitions filed under the Tenth Schedule of the Constitution of India. Raising some important questions, the judgement provides some clarity to the anti-defection laws. The Tenth Schedule provides the circumstances under which a MP or MLA can be disqualified for defecting to another party. Disqualification petitions under the Tenth Schedule are decided by the Speaker of the House. Given that a Speaker belongs to a particular political party, the Court has mooted that disqualification petitions be decided by an independent permanent tribunal.
The Bench has observed that Parliament may consider amending the Constitution to substitute the Speaker as arbiter of disputes concerning disqualification with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartially. The judgment was passed in a petition calling for the disqualification of a Manipur Minister for defecting to the BJP post the 2017 Assembly elections.
The situation in Goa is no different, finding loopholes in the anti-defection law, 15 MLAs from Congress (13) and MGP have switched their loyalty to BJP. The defections had started in 2017 when Congress MLA Vishwajit Rane resigned as MLA to join BJP. In 2018, Subhash Shirodkar and Dayanand Sopte resigned from their respective seats and re-contested. Thereafter it was the turn of two MGP MLAs Manohar (Babu) Ajgaonkar and Deepak Pauskar, who tendered their letter of joining BJP in the middle of the night. Then it was 10 Congress MLAs, including then leader of opposition Chandrakant Kavlekar who joined BJP. The party, in this manner, increased its tally from 13 of 27 in just two years through defections.
The Congress filed a disqualification petition against Rane and 10 others, while MGP filed a petition against Ajgaonkar and Pauskar. Now, almost three years later the Rane case is still pending, and similar is the status of the MGP and other Congress cases – all pending before Speaker Rajesh Patnekar. Now, however, the Court has observed that the Speaker is a quasi-judicial authority required to take a decision within a reasonable time, which is much less than five years, the life of the House.
That judgment noted that the failure on the part of the Speaker to decide the application seeking disqualification cannot be said to be merely in the realm of procedure. “It is clear that the Speaker, in the original order, left the question of disqualification undecided. Thereby he has failed to exercise the jurisdiction conferred on him by para 6 of the Tenth Schedule. Such a failure to exercise jurisdiction cannot be held to be covered by the shield of para 6 of the Schedule,” the SC said. It added, “What is reasonable will depend on the facts of each case, but absent in exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to.”
The three-month period, the court explains is fixed, because, “ordinarily the life of the Lok Sabha and the Legislative Assembly of the States is 5 years and the fact that persons who have incurred such disqualification do not deserve to be MPs/MLAs even for a single day, as found in Rajendra Singh Rana (supra), if they have infracted the provisions of the Tenth Schedule.” If the defection petitions are speeded up, with two years before the next polls, Goa could see some changes in the Assembly.
