Remove Speaker's Power To Decide Disqualification Under 10th Schedule Of Constitution, Let HC Decide Instead : Arvind Datar

The Speaker's power to decide the disqualification of elected members defecting from their original political party under the 10^th Schedule of the Constitution should be removed and should instead be given to the High Court in the form of election petitions, Senior Advocate Arvind Datar said while delivering the KT Desai Memorial Lecture on Monday.

“First thing we have to do is to remove the power of decision of disqualification from the Speaker…The Speaker is expected to be impartial and objective. But by nature the Speaker belongs to one party…History and empirical data have shown the Speaker never decides against his party.”

Datar added that Article 329A of the constitution which was struck down could be brought back giving the HC power to decide such disqualification petitions.

"There's a suggestion that Speaker should become independent but I don't think that will work. It is better that it's the High Court which decides the election petition.", he suggested.

Datar delivered the Lecture on 'Anti-Defection and Constitutional Morality: The Need to Replace the Tenth Schedule.' The event was held in the Bombay High Court Lawns and Chief Justice Devendra Kumar Upadhyaya presided over the lecture.

During the lecture, Datar further emphasized the necessity for space to dissent for an elected member of a political party.

“Secondly, there is a dangerous concept of the party whip system. There is a difference between dissent and defection. There can be genuine dissent. Unless there is a no confidence motion, or money bill, all other things should be considered as dissent if a member votes against the party. There is controversy over voluntarily giving up the party. I would suggest that the meaning of voluntarily giving up is codified.”

Significantly, Datar added that there should be a mandatory inner party democracy via secret ballot. “There's no point of only dynasties being in power in the party… George Washington said he won't run for president the third time. The reason - We did not overthrow one monarchy to become another.”

Datar said, "it is “fashionable” to claim everything is colonial legacy… IPC is colonial, CrPC is colonial, so reject the colonial legacy…But at least as far as constitutional morality is concerned, this is one constitutional legacy that we should not abandon.”

Chief Justice DK Upadhyaya said dissent could not be taken lightly and the Speaker ought to be a man of outstanding ability and impartiality. The lecture had given policy makers food for thought, he said.

Datar, began his address by saying, “When I was deciding my topic for this lecture, I was very disturbed to see the way the 10th Schedule has moved on.”

Datar explained that from 1971 till 1985 when the bill for the 52^nd amendment (introduction of the 10^th Schedule) was moved in the parliament, approximately 4000 persons got elected and over 1000 defected. Even in state assemblies 52% defected.

He said the common phrase “Aaya Ram Gaya Ram,” came after a person named Gayalal defected.

“Gayalal was elected on an independent ticket and changed 3 parties in 15 days. From Congress he went to the United Front, then went to Congress and within 9 hours he went to the United Front. His son also defected parties 4 times.”

Talking about dissent and defections Datar said, “There are two things. One is voluntarily giving up a party and the other is about a split in the party. Then the question is what is voluntarily giving up? The SC said if you attend TV interviews with opposition, give lectures in the support of opposition, it is sufficient to say you have given up even if your name is in party register.”

The Nabam Rebia judgement(2016) said that if there's a resolution for disqualification of Member and Speaker, disqualification of Member cannot be decided until disqualification of Speaker is decided.

“Now this has become a tactic and has happened many times in Tamil Nadu,” Datar said adding that the case was pending before a 7 judge bench of the SC following a reference.

In Subhash Desai's case (Shiv Sena rift case), the SC decided that the power to decide Whip of the party is with the main party, and not the legislature party.

Datar said it was “disturbing” to see that elected members being taken in buses to resorts and their mobiles being taken away. It was a good thing that the Nabam Rebia Judgement has now been referred to a larger bench of the SC.

“One thing is that defection will happen. There is a new method where the members don't defect, simply resign. The party falls and they get tickets from the other party,” Datar said before giving his suggestion for the removal for the speaker.

It may be recalled that in 2020, then Shiv Sena alliance in Maharashtra collapsed after CM Eknath Shinde defected along with 38 members. The Apex Court recently directed the Speaker of the Maharashtra Legislative Assembly to decide the disqualification petitions filed by Uddhav Thackeray and Eknath Shinde factions by December 31, 2023.

Expressing its displeasure over the delay, the Apex Court observed that the procedural wrangling between contesting parties should not be allowed to delay the conclusion of the disqualification petitions.

(Compiled by Sharmeen Hakim)