The Speaker of the West Bengal Legislative Assembly, Biman Banerjee, has knocked on the door of the Hon’ble Supreme Court in an appeal against the order of Hon’ble Calcutta High Court with respect to the disqualification of Mukul Roy.
Mr. Roy was elected from Krishnanagar Uttar constituency in Nadia district in West Bengal during the State Legislative election conducted in May this year on Bhartiya Janata Party (BJP). However, in the next month, he left the party’s allegiance and joined the Trinamool Congress (TMC). He was also appointed as the Chairman of the Public Accounts Committee, the post which is often reserved for the member of the Opposition party.
The Bhartiya Janata Party approached the Speaker seeking disqualification of Mr. Roy under the Anti – Defection Law as the decision-making power concerning such matters is vested with the Speaker of the assembly.
However, he had not decided upon the matter to which the BJP party leaders went to Calcutta High Court, which directed the Speaker to decide on the disqualification by October 7. The Court also directed that if the Speaker is unable to decide upon the matter within the stipulated time, the Court would intervene and take a call upon the issue of disqualification.
On October 7, when the matter was being heard, the Advocate General S. N. Mookerjee informed the Court that the Speaker had approached the Supreme Court against the order of this Court.
Four MLAs who were elected on the ticket of Bhartiya Janata Party have switched their allegiance and joined Trinamool Congress since May this year. It is also surprising that many of the legislators have joined the Trinamool Congress during the period between 2011 and 2021, and not a single one of them has been disqualified under the anti-defection law.
Anti – Defection law
It was first inserted under the Tenth Schedule of the Constitution of India by the fifty-second Constitutional Amendment Act in 1985, with the objective of reducing this tendency of switching political allegiance after being elected in the polls, which was rising in the political arena of this country which could lead to instability of the government at many states.
This provision was further reinforced in the year 2002 as the political scenario in India saw a structural change. Earlier, the political parties used to get a clear majority in the elections. However, in this period of transition, there was a boom in the creation of new regional political parties in India, which provided more options to the people at large to choose from. This led to the formation of a coalition where several parties with a common ideology shared power.
Under this law, a legislator is considered to have defected under the following conditions:
- If he/she voluntarily gives up the membership of the party by joining the other party.
- If he / she disobeys the directives of the party leadership on a matter of vote in the assembly without obtaining prior permission.
- If an independent candidate joins a political party after the election.
This anti-defection law applies on both the levels of the legislature on Central as well as State level. That means that it takes into account the membership of Parliament and the state legislative assemblies.
Under this law, any issue with respect to disqualification arising out of defection is to be decided by the presiding officer of the House, which is the Speaker of the Parliament as well as State Assemblies.
In the case of Kihoto Hollohan v Zachillhu & others in 1992, a constitutional challenge to the Tenth Schedule was settled by the apex court. In this matter, the key issue which was settled by the Supreme Court was that whether the power of the Speaker undermined the Basic Structure doctrine according to which basic features of the Constitution cannot be amended or altered by Parliament as laid down in the landmark judgment in Kesavananda Bharati v State of Kerala (1973). The Court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
However, there is no prescribed time limit inscribed under the anti-defection law within which the Presiding Officer should decide on the plea for disqualification of the member of the House. Now, since the Court, in this case, clarified that though the decision of Presiding Officer is under the purview of judicial review by the Supreme Court and the respective High Courts, it also held that there might not be any judicial intervention until the Presiding Officer makes any order. Therefore, it is now the current trend that when such matter of disqualification arises, the Presiding Officer tends to withhold the demand for a more extended period of time which prevents the courts from intervening in the case.