Disqualification of Sharad Yadav and Ali Anwar
On December 4, 2017, Vice President M Venkaiah Naidu had disqualified the Rajya Sabha membership of Janta Dal Leader Sharad Yadav and Ali Anwar in his capacity as Chairman of Rajya Sabha.
What amounts to be defection under the anti-defection law?
Anti-Defection law was introduced through 52nd amendment act of 1985. It provided for the disqualification of the members of parliament & state legislatures on grounds of defection from one political party to another. Under this law, various provisions regarding disqualification are as follows:
Members of Political Parties
A member of a house belonging to any political party becomes disqualified for being a member of the house if
- He / she voluntarily gives up his membership of such political party.
- He / she votes or abstains from voting in such house contrary to the directions issued by his political party without prior information of such party.
Independent Members
An independent member becomes disqualified if he / she joins any political party after such election
Nominated members
A nominated member becomes disqualified if he joins any political party after the expiry of six months from the date on which he takes his seat in the house. This means that he may join any political party within six months of taking his seat in the house without inviting hid disqualification.
What happened in the recent case?
Leader of the Janta Dal (U) in Rajya Sabha, Ram Chandra Prasad Singh had filed a petition seeking disqualification of Sharad Yadav and Ali Anwar. Both of them were elected to Rajya Sabha on the JD(U) ticket from Bihar in June, 2016. However, in 2017 after JD(U) headed by Nitish Kumar entered into alliance with BJP; they were seen campaigning with the opposition party leaders-RJD and even attended their public rallies despite written directions from the party refraining them from attending such rallies. Such activities amounts to openly defying party directions and are construed as voluntarily giving up the membership of the JD (U) by Sharad Yadav and Ali Anwar. Hence, they petitioned that both members qualify for defection. The petition was to invoke the following to disqualify the members:
- Article 102(2) read with Paragraph 6 of the Tenth Schedule to the Constitution
- Rule 6 of the Members of the Rajya Sabha (Disqualification on Ground of Defection) Rules, 1985.
How Sharad Yadav and Ali Anwar defended themselves?
The contentions put forth by the disqualified members were as follows:
- They have maintained that Nitish Kumar and his faction led JD (U) to withdraw from the grand alliance ( with Congress and RJD) entered in 2016, which was formed as a common front against the Bharatiya Janata Party (BJP).
- They also allege that this action has been taken against the party’s constitution and manifesto.
- So Sharad yadav and Ali anwar still call themselves as the members of JD(U) and maintain it is the Nitish kumar and his supporters who have voluntarily given up the membership.
What were the factors considered by chairman (Rajya Sabha) to decide disqualification?
The dispute between the party leadership (Nitish Kumar) and its members (Sharad Yadav) regarding decision of withdrawal from the coalition and joining hands with other party does not entitle Sharad Yadav & Ali Anwar to publicly criticize and go against the mandate of party decisions. A member gets elected as a candidate of a political party because of the policies and manifestos of the party and if the Member defies party directives publicly, he will be deemed to have given up his membership of the political party voluntarily.
Why the decision was controversial?
The key concerns raised at the decision are as follows:
- The anti-defection was formed primarily to provide for stability in the body politic by checking the propensity of legislators to change parties. Neither Mr. Yadav nor Mr. Anwar had posed a danger to the stability of any government. Therefore, the decision is criticised for being taken in hasty manner.
- The chairmen did not take the assistance of privileges committee before deciding the case. Therefore, he did not explore all the procedural avenues before taking the decision.
- The decision was taken in haste.
What is current status?
The decision of the Chairman of Rajya Sabha was challenged in Delhi High Court. However, as of now refused to pass an order to stay the decision. However, allowed Yadav to draw allowances, perks and retain his bungalow as an MP. However, the members have been restrained him from attending the Winter Session of Parliament.
Question: Does Anti-defection law violate the right to free speech?
The Anti-defection law (10th schedule) was added through 52nd amendment of the Constitution which provides for disqualification on ground of defection. Soon after the passage, the law was challenged on the grounds that it violates the right to free speech of legislators.
However, Apex court in Kihoto Hollohon vs Zachillhu(1992) upheld the constitutional validity and decided that the law does not violate rights of free speech of the legislatures. Along with that SC made some observations regarding section 2(1)(b) of 10th schedule, which provides for disqualification of a member in case she/he votes or abstains from voting contrary to whip directions. As per the judgment, there is need to limit disqualifications(in case of acting contrary to whip directions) only to the no-confidence votes and to the matters which are an integral part of party’s electoral program so that it does not violate the freedom of speech of members.
Another major issue is that the decisions are taken by Speaker/ Chairman which is accused to be biased sometimes. Here the recommendations of Election Commission should be the due consideration. As per EC recommendations, decisions under the Tenth Schedule should be taken by the President/ Governor on the advice of the Election Commission, this will help in preserving the integrity of the office of speaker. Also, whip directions should be limited to the cases of government stability.
This will be helpful in the constructive criticism on crucial policy matters. Along with that the case of “voluntarily giving up membership” is too vague and therefore it should be revised so that it can be interpreted in an objective manner. If the reforms are properly implemented, the law will not only ensure freedom of speech, but it will also help in ensuring government stability.
