Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Disqualification of membership on account of defection from one party to another especially during the formation of government when the electorate has not given full mandate to single any party or alliance has always posed serious challenges to our democracy especially when the elected members dictate terms in the formation of government in complete contradiction to the aspirations of the electorate.

The 20th Law Commission under the Chairmanship of  Justice Ajit Prakash Singh submitted its  Report No.255 on 12th March 2015 to the then Union Minister of Law & Justice Mr. Sadananda Gowda. Some of the major recommendations under Chapter V of the said report are reviewed and studied to evaluate the present status.

The Law Commission recommended for amendment to the Tenth Schedule of the Constitution which shall have the effect of vesting the power to decide on questions of disqualification on the ground of defection, with the President or the Governor (as the case may be) who shall act on the advice of the Election Commission. It was envisaged that this amendment vesting the power to decide matters relating to disqualification on the ground of defection with the President/Governor acting on the advice of the Election Commission would also help in preserving the integrity of the Speaker’s office.  However, over the last five years or so the office of speaker has always been subject to huge controversies due to its partisan attitude and favoritism towards the ruling party since he is often dictated or commanded by the political party from whose ticket he got elected.

The Law Commission has proposed amendment of Paragraph 6 of the Tenth Schedule as under:

LAW COMMISSION REPORT NO.255

PRESENT PROPOSAL

“6. Decision on questions as to disqualification on ground of defection.—(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the:

President, in case of disqualification of a member of either House of Parliament;

Governor, in case of disqualification of a member of a House of the Legislature of a State. Provided that the decision of the President or the Governor as to whether a member of a House has become subject to disqualification under this Schedule shall be final.

(2) Before giving any decision on any such question, the President or the Governor, as the case may be, shall obtain the opinion of the Election Commission and shall act according to such opinion.

Provided that no member of a House shall be disqualified under this Schedule, unless he has been given a reasonable opportunity of being heard by the Commission in the matter.”

  1. All decisions on questions as to disqualification on ground of defection under the Tenth Schedule of our Constitution shall be referred to the decision of:

  1. A Committee specially constituted by the President comprising of Retired Judge of  Supreme Court, Sitting Judge of Supreme Court, Chief Election Commissioner, Representatives of the Political parties in stake, Leader of Opposition, Members of Law Commission who had submitted recommended Electoral Reforms.

The Committee should publish a copy of the report in the website of Election Commission for public review and opinion for a period of one month. The Speaker should submit the brief of committee’s report along with the general views of the electorate to the Governor (in case of MLAs/MLCs) or President (in case of MPs) whose decision shall be final.

  1. The Decision shall be reviewed and ratified only by the Constitutional Bench of High Court and Supreme Court within a period of fifteen days from the date of submission of report and the final report of the Court shall not be subject for any judicial review.

  2. The disqualified member of the House shall utilize this time of fifteen days to be heard by the High Court or Supreme Court.

ADVANTAGES ENVISAGED

The Following advantages can be envisaged when the Tenth Schedule of our Constitution is amended on the above parameters:

  1. Delay or pendency of litigations related to disqualification matters will be minimized or even nullified.

  2. No room for any manipulations of legal provisions or interference by Executive or delay in the adjudication of disqualification matters before High Court or Supreme Court.

  3. There can be no scope for Horse Trading or Resort politics in our democracy against the mandate of people.

  4. No constituency will be left vacant for number of years without its representative on account of pendency in disqualification matters before courts.

  5. Early notification of Bye-election by the Election Commission once vacancy is notified by Court and the Governor on account of disqualification of elected member.

  6. During this period of adjudication by the Committee, Speaker, Governor and the Court who should all fall in line only with the Rule of Law, it would ensure the elected representative to comply with all the regulations mandated by the Election Laws and the Constitution.

  7. Lastly, the weapon of disqualification cannot be misused by all those in power to establish the Constitutional concepts of our democracy.


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