(a) whether the Government have received several representations regarding
amendments in the anti-defection law;
(b) if so, the details in this regard;
(c) whether the Government are actively considering bringing suitable
amendments in the anti-defection law; and
(d) if so, the details in this regard?
MINISTER OF LAW & JUSTICE AND COMMERCE & INDUSTRY (SHRI ARUN JAITLEY)
(a) & (b) A number of recommendations have been made by various bodies
including the National Commission to Review the Working of the Constitution. A
statement containing main recommendations is laid on the Table of the House.
(c)and (d) Certain proposals relating to amendments in the Tenth Schedule of the
Constitution (anti-defection law) were included in the agenda for the meeting of the
political parties on the subject of reform of electoral laws held on 22.5.1998 but the
discussion on the issue was deferred. The Government has not decided any subsequent
date for discussing the issue with the political parties.
STATEMENT REFERRED TO IN REPLY TO PARTS (a) and (b)OF THE LOK SABHA STARRED QUESTION NO.256 FOR ANSWER ON 07-03-2003.
(1) Recommendations of Dinesh Goswami Committee:-
(i) Provisions for disqualification should be limited to cases of (a) voluntarily
giving up by an elected member of his membership of the political party to
which the member belongs; and (b) voting or abstention from voting by a
member contrary to his party`s directions or whip only in respect of a
motion of vote of confidence or a motion amounting to no confidence or
Money Bill or motion of vote of thanks to the President`s Address.
Further, the Deputy Speaker of the House of the People or the Legislative
Assembly of a State, the Deputy Chairman of Council of States or
Legislative Council of a State or a person occupying the Chair for the time
being in the absence of any elected Presiding Officer, as the case may be,
should not incur disqualification if he chooses to abstain from voting
contrary to his party`s directions or whip.
(ii) The power of deciding the legal issue of disqualification should not be left
to the Speaker or Chairman of the House but to the President or the
Governor, as the case may be, who shall act on the advice of the Election
Commission, to whom the question should be referred for determination
as in the case of any other post-election disqualification of a member;
(iii) A nominated member of the House should incur disqualification if he
joins any political party at any period of time.
(2) Suggestions emanating from Judgement of the Supreme Court:
(i) The Supreme Court in the case of Kihota Hollohon Vs Zachilhu and
others, [1992 (1) SCALE 338-364(4)] by a majority judgement upheld the
validity of the Tenth Schedule to the Constitution of India except
paragraph 7 thereof. Paragraph 7 barred jurisdiction of courts in respect of
any matter connected with disqualification of a member of House under
the Tenth Schedule. The implication of the judgement is that the decisions
of the Presiding Officers could be scrutinised by the Courts on the ground
that in deciding the issues of defection, they were acting as tribunals.
(ii) Pursuant to aforesaid judgment of the Supreme Court, a suggestion
was made in a conference of the Presiding Officers of various State
Legislatures which was presided over by the Speaker held in 1992
that a provision may be made in the anti-defection law to provide
for an appellate authority which would hear appeals from the
judgement of the Presiding Officers so that decisions of the
Presiding Officers were not directly scrutinised by the Courts.
(iii) Pursuant to the aforesaid suggestion, one of the proposals regarding
constitution of an appellate authority was that in case of Members
of Parliament, such authority may be President of India who shall
obtain opinion of a Committee consisting of three members
indicated in section 3(2) of the Judges Inquiries Act, 1968, namely,
a Judge of the Supreme Court, Chief Justice of a High Court and a
distinguished jurist and shall act according to such opinion.
Similar provision was proposed for Members of State Legislatures.
(3) Recommendations of the Election Commission of India:-
Anti-defection law may be amended leaving it to the President and the
Governors concerned to decide cases of disqualification under the Tenth
Schedule, after obtaining the opinion of the Election Commission.
(4) Recommendations of the Law Commission in its 170th Report: -
(i) Omission of definition of legislature party.
(ii) New definition of political party to include pre-election fronts and coalitions for the purpose of Tenth Schedule.
(iii) Doing away with the concept of split and merger.
(iv) The question of disqualification for membership of Lok Sabha/State Legislative Assemblies, after election be entrusted to the President/Governor for decision.