MUMBAI: “Let us distinguish between dissent and defection in the Tenth Schedule,’’ said senior advocate Arvind Datar on Monday calling for reformsto replace the Speaker as the decision-making authority in disqualification pleas and recategorize which whip can lead to such action.
Datar was giving the prestigious K T Desai Memorial lecture this year to an array of Bombay high court Judges and lawyers at the event presided over by Chief Justice Devendra Kumar Upadhyaya.The topic he chose was ‘Anti- Defection and Constitutional Morality—The Need to replace the tenth Schedule.’ In Maharashtra there is an ongoing disqualification proceeding before the Speaker on rival Shiv Sena pleas. The SC had last month set December 31 as the deadline to conclude the proceedings and Datar said the SC had earlier suggested that three months be the time within which the Speaker decides.
At the HC lawns where the carpet was red and the weather pleasant, Datar delved into a politico-legal delicate topic said, “Foremeost, thing we have to do is to remove the decision of disqualification from the Speaker. “It is not possible to expect—I don’t blame the Speaker—he is elected, he belongs to the ruling party, and history, empirical data shows that there is not one single instance of a Speaker voting against his own party. I have not seen.’’
Who should it go to then? Though the 255th Law Commission report recommended it go to the Governor, disagreeing Datar said, “shifting from Speaker to the Governor may not achieve the objectivity that is required.
He then cited a SC Judgment by Justices Rohinton Nariman and Ravindra Bhatt who said it was time to think of a separate tribunal, headed by a Judge or somebody to decide the issue.
On the Party whip, the violation of which can lead to pleas of disqualification of a political party member, he said, “there is a dangerous trend of party whip system.’’
“There is a difference between dissent and defection. I can have a genuine dissent on an issue,’’ said noting that the UK and USA do not have an anti-defection law.
How to distinguish? Every dissent, Datar suggested, ought not to lead to a call for disqualification. “ I would say that unless it is a no confidence motion, a money bill or unless it is a bill which is going to implement that Party’s manifesto , any other difference of opinion should not be taken as a defection.’’Datar, a legal luminary explaining the topic of the lecture said, “I was very disturbed to see the way how the 10th schedule had moved on, especially in various parts of the country.’’
In his erudite style, Datar took the august gathering through the history that led to the 52nd amendment of the Indian Constitution on January 30, 1985 that introduced the tenth schedule intended to erase the “menace of defection”.
He recalled how then Member of Parliament Sharad Dighe from then Bombay North Central in the debates before the amendment, quoted Dr Subhash Kashyap–who wrote a book recently—mentioned that from 1971 to 1985 “little over 4000 people got elected to the Lok Sabha and various Assemblies and of these 1969 of them defected from one party to the other.’’ “Shockinly, Datar further said, in the State Assemblies too the figure was high. He gave the data of the 1950s and 60s saying, “ There were total 568 defections from 1951 to 1968’, but of these “438 took place in one years between March 1967 to February 1968.’’
There is no data of what happened after 1985 but, said Datar.
Parliament had earlier formed the YB Chavan committee which gave a report in 1969.
After the Tenth Schedule, upto 2002 there were hardly any case on anti-defection, said Datar but added, “It soon became apparent that the 52nd amendment was not a solution to defection’’ though “open defecation was curbed.’’
Giving his suggestions for reforming the system, Datar, pointed out that “cases mostly are only para two of the schedule.’’
Para 2 lays the grounds for disqualification of the members ‘’ If a member of a House belonging to a political party: Has voluntarily given up his membership of such political party, or Votes, or abstains from voting in such House, contrary to the direction of his political party….’’ “ Datar said, “One is to say he has voluntarily given up his membership and the other is the question of a split’’.
The CJ Upadhaya in his speech said the Speaker has to be fair and quoted B R Ambedkar the father of Indian Constitution who said, ‘however good a Constitution, may be, if those who are working on it are not good, it won’t, and however bad a Constitution may be, if people working on the Constitution are good, it will be good..’
