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12.06 hrs.
CONSTITUTION (NINETY-SEVENTH AMENDMENT) BILL
(Amendment of articles 75, 164, insertion of new article 361B
and amendment of the Tenth Schedule)
Title: Discussion on the constitution (Ninety-Seventh Amendment) Bill, 2003 (Amendment of articles 75, 164, insertion of new article 361B and amendment of the Tenth Schedule) (Discussion concluded and Bill passed).
MR. SPEAKER: Let me make it clear to the House that we are going to discuss and dispose of the Constitution (Ninety-seventh Amendment) Bill today itself. The time for this Bill is given upto 2 o’clock. As this is a Constitution Amendment Bill, voting for this Bill will take place at 1.45 p.m., if all the names of Members who want to speak are exhausted. Thereafter, there will be a lunch break after 2 o’clock.
THE MINISTER OF LAW AND JUSTICE AND MINISTER OF COMMERCE AND INDUSTRY (SHRI ARUN JAITLEY): Sir, I beg to move:
“That the Bill further to amend the Constitution of India, be taken into consideration.”
Sir, this amendment to the Constitution has two important components to it. The first one seeks to amend the Constitution where changes are brought about by way of the Constitution (Fifty-second) Act on 1st March, 1985. If we recollect, in 1985, the Tenth Schedule was added to the Constitution by way of Anti-Defection Law and at the time when that law was enacted by this Parliament, there was harmonisation of two thoughts which were made in this particular law.
The first one was crossing a political party and defecting from a political party had certain penal consequences in terms of disqualification which were attached to a Member. This was an amendment which was approved by this Parliament and this is operated for the last 18 years. The second one was an exception to the rule of defection which was made. There were two possible exceptions which were carved out. One was in relation to the split and the other was in relation to the merger. Today, 18 years after, there is an opportunity for this Parliament to again review the functioning of that particular law. From the discussions that we have had with various members of political parties as also the suggestions which have been made by the Standing Committee in this regard, most people have seen that the effects of this law for the last 18 years, in so far as it relates to mergers, have not created any serious problem. Therefore, the consensus is, that provision relating to merger of political parties may continue to exist. However, as far as split provision is concerned, the provision of the law, as it was originally enacted, is that if there is a split in the original political party as a result of which one-third members of a Legislature Party form a separate bloc, that split party should be recognised as a separate political party. Even though this Bill was passed with the best of intentions in 1985 which was brought in with regard to the functioning as far as splits are concerned, there are several reactions which Members and political parties have expressed. There is also an opinion across the political spectrum with regard to the functioning of the split provision. Most splits which have taken place since 1985 have not been on the basis of any principle or any ideological ground but have mostly been in relation to smaller political parties which have been easier to split and subsequently be subsumed into larger political parties. And most persons who have been parties to that split have eventually gone and become Ministers in alternative Governments which were formed and, therefore, the split provision has not functioned in a manner at which it was envisaged in 1985 that it would function.
Therefore, the first part of the amendment seeks to delete clause 3 of the Tenth Schedule which so far permitted splits as far as political parties are concerned. This question has been gone into by several Expert Groups which have been appointed over the last ten or twelve years. In 1990, we had the Dinesh Goswami Committee on electoral reforms which went into this question and which also recommended the deletion of the split provision. The Law Commission, in its 170th Report in 1999, gave a recommendation which also sought to delete this clause 3.
More recently, in 2002, the Commission appointed by the Government to review the functioning of India’s Constitution also suggested deletion as far as this provision is concerned. This Bill was introduced in the Parliament on the 5th of May, 2003 and was referred to the Standing Committee. I must acknowledge with a deep sense of appreciation that the Standing Committee has consulted various people and in a short period of seven months, on the 5th of December, tabled the Report.
The Standing Committee had recommended deletion of this split provision. They have further recommended that if a person is disqualified to be a Member, then obviously he cannot even continue to be a Minister. There is a second component to this amendment, which the Standing Committee has somewhat improved upon over and above the Bill which was proposed by the Government. There has been a suggestion which has been made that in some cases, both in the Central Government as also in the State Governments, the size of the Government has become very large and the Cabinet has become unwieldy. Therefore, the Government had proposed in the original Bill that the size of the Cabinet should be restricted to ten per cent of the legislative strength.
We wanted to make a difference in relation to Unicameral House and Bicameral House. But the Standing Committee, after considering all these, had recommended that in relation to either category of legislative bodies, whether it is Unicameral or Bicameral, the strength should be confined to 15 per cent of the strength of the Lower House or the House of People, in the case of the Centre and in the case of the State Assemblies. This suggestion has been accepted by the Government. Accordingly I have proposed an amendment.
We had recommended a size of seven to be the minimum size in the context of several State Assemblies which have either sixty or ninety Members. But the Standing Committee, keeping particularly the position of North-Eastern States in mind, had recommended that the minimum size should be twelve. Therefore, this fifteen per cent will be subject to this condition of twelve which will be applicable to those Assemblies which have smaller Houses. Particularly the States in the North-East will be carved out as an exception as far as this provision is concerned.
There was one issue on which the original Bill as also the Standing Committee was silent about was as to when does this become applicable, particularly in relation to those legislative bodies where the existing size of Council of Ministers is more than fifteen per cent. Some time would have to be given to those State Governments or the Central Government, as the case may be, to fall in line with this. Therefore, I have proposed an amendment to the effect that within six months, from the date of notification of this Constitution Amendment, all legislative bodies, the State Governments as also the Central Government will have to bring the size of the Council of Ministers in consonance with the constitutional requirement which is proposed in this particular Bill.
Since most of these were suggestions which have been uniformly accepted by the Standing Committee also, we are proposing before this august House that this Bill be taken into consideration and be approved by this hon. House.
MR. SPEAKER: Motion moved:
“That the Bill further to amend the Constitution of India, be taken into consideration. ”
SHRI PRIYA RANJAN DAS MUNSI (RAIGANJ): Notification should not be delayed. It is in your hands.
(LATUR): Sir, I am very happy that this Bill has been moved for consideration in this House. This Bill was referred to the Standing Committee and the Standing Committee had made certain recommendations. I am happy that all the recommendations made by the Standing Committee have also been accepted by the Government.
As was stated by the hon. Minister, this Bill intends to achieve two objectives. One objective is that of limiting the size of the Council of Ministers and the other is to deal with the provisions relating to the split in the law of anti-defection contained in the Tenth Schedule of the Constitution. It has also been accepted by the Government that the minimum number of Ministers should be twelve. Now, what is coming out of this? The Standing Committee has the respite to apply its mind to the provisions of the Bill in a dispassionate manner and come to a conclusion which is of a very balanced nature. It is, sometimes, not possible in this House. I am very happy to say that these suggestions have been made by the Standing Committee and have been accepted by the Government.
As far as the amendment to the Anti-Defection Law is concerned, I would like to say that this Bill is proposing to delete the provision relating to the split. This is also a very salutary provision and we should accept it. When the Bill was originally discussed in this House in the 1980s, we were the Members of this House and we had an occasion to discuss many of the provisions of the Bill at that time. Originally, this Bill did not have the provision relating to the split. It provided that one-third or any number of Members defecting from one party to the other party would lose the membership of the House. That was the original provision. But then, some experts spoke and wrote about this provision. One of the persons who spoke and wrote about it was Shri Madhu Limaye and the other person who spoke and wrote about it was Shri Nani Palkhiwala. There were other Members also who were objecting to this provision.
What was their objection? Their objection was that if an ordinary voter has a right to vote as he likes, should an elected Member not have the same kind of a right when he comes to this House? Should he be directed by the Party to vote in one manner or the other? If this is allowed by law or if this is compelled by law, then the right to vote in any manner the Member likes is curtailed and this is undemocratic. That was the main ground on which this provision was objected. Then, it was also said that the Party Presidents would compel their Members to vote and sometimes against the manifesto issued by them in the elections. In that case, should the Member be bound by the direction given by the party? So, this issue was discussed threadbare. Many proposals were made to overcome this difficulty. The first proposal was that if a large number of Members of a party are not in consonance with the direction given by the party leadership, then they would not be bound by it. So, they should be allowed to vote in any manner they like; they should not be held responsible for this and they should not be thrown out of the House. The question was: What number of members should be allowed? Initially, it was suggested that two-third number of Members should be allowed to do that. Then, they said that, that was too big a number. Then, it was reduced to one-half. Then also, they said that that was too big a number. Finally, it was ultimately reduced to one-third. This provision of one-third became part of the Bill and later on part of the law. Later on, all started saying that the wholesale defection is allowed but the retail defection is not allowed. The intention was to protect the right of the Member to vote in a manner in which he would like to vote in the House. So, this is how this provision came into existence.
This provision was used and abused. It was more abused than used. It was more abused in the smaller Legislatures than in the bigger Legislatures because in smaller Legislatures, it was not difficult to get one-third number of Members to defect from one party to the other. I am happy that this amendment has been suggested and the amendment has been accepted. But I hold a view that it should have been done in a little different manner. The Standing Committee also discussed this view. The Standing Committee discussed whether the direction given by the party should be binding on the Member in all the cases or in cases in which the Government would be destablised.
It was not in all cases. This issue was discussed by the Standing Committee also. The Standing Committee has also come to the conclusion that it is better to retain the provision contained in the Bill as was presented to the House and not to amend it. I would like to differ a little bit from the stand of the Standing Committee also very respectfully.
What is a law? The law is an instrument to balance the interest in the society. There is an interest to see that the elected Members do not defect from one party to the other party and destabilise the government for selfish reasons. But, at the same time, it is also necessary to see that the Members, who have genuine differences of opinion, are allowed to express their views in the House not only by saying what they want to say but also by voting in cases which do not affect the stability of the Government. Why should it not be done? I fail to understand this. Why should it not be done? If it is not done now, maybe, later on, people will apply their mind to this aspect and they will come to the conclusion that it should be done. On this point, I am not going to insist. Probably, my party is not going to insist on this point.
The Standing Committee has given the report. The Government has accepted the report. The Bill is in the form in which the Standing Committee has made the recommendations. I am not going to object to it. We are not going to move an amendment or insist on it. But, at the time of making the law, this point has to be kept in mind.
The law is something which exists for years to come. It applies to the entire country. It cannot be easily amended. That is why, the law should not be made in such a fashion that it would create complications and would affect the basic principles also. In this case, the basic principle of democracy is that a Member of the House should have that kind of a right as the outside voter has the right to express his views and vote. Now, we are deviating from this principle. On two principles, we have deviated. One principle is the secrecy of ballot. In the Council elections, the voters are not allowed to say that, I have a right to secretly vote for a candidate I want to vote. But he has to openly vote. The secrecy is done away with now. In this case, the right to vote is also curtailed. These are the two principles which have to be borne in mind. Probably, we are reacting to the situations which have arisen. In doing so, we are making certain provisions in the law which are likely to affect the basic principles of democracy. If we are voting openly, then the Members are likely to be influenced by some people outside also. If you are not allowing the Members to express their views in the House and vote also, they may hold, genuinely, certain views and yet not be able to stick to the views. This is one of the things over which, I think, we should ponder. It would have been better if the law had made that kind of balancing in these two requirements, in these two interests. It would have been a better law if that kind of a provision had been included in it.
The second provision is about the Presiding Officers. I am very sorry to say that this is one of the most important aspects relating to the Anti-Defection Law. Those who are Presiding and those who are given the responsibility to decide these cases have onerous responsibility to discharge. Their main job is to see that the House functions. Their main job is to see that the laws are enacted; the Budget is passed and the discussions take place in the House in a proper manner. They are given the responsibility to act as the Judicial Officers also to decide these cases in which the fate of the elected Member of the House has to be decided.
Sometimes it is not one Member, sometimes 10 Members, 20 Members or 50 Members who are elected by the people have to be disallowed from coming to this House. Their membership has to be terminated by them. This is a very onerous responsibility.
Now, when this Bill came up for discussion in the 1980s, initially the suggestion made was that let the Party president decide as to who is the Member of the House and who is not the Member of the House. To this proposal, objections were raised and very rightly so. A Party president may be a Member of the House or may not be a Member of the House. It was said that if he is not a Member of the House, then you are giving him the responsibility to disqualify a person who has been elected to the House. They said that allowing this is not correct and that is why that idea was given up. Then, it was suggested that let these cases be decided by the Supreme Court and the High Courts. Probably that was the right thing to do, but then it was suggested at that time that if the matter goes to the High Courts or the Supreme Court, it takes years to get the decision. If it takes years to get the decision and if the term of the concerned Member is over before the decision is given, then the intention of having this law will be frustrated and that is why this idea was also given up. Afterwards, it was suggested that the Election Commission should be given this responsibility, but the Members of the House were not willing to give this responsibility to the Election Commission. So, ultimately it was decided that the Speaker of the Lower House and the Chairman of the Upper House should have the responsibility to decide the cases on the matters coming before them in the shape of petitions filed by the Member and not suo motu.
Sir, here I may be allowed to take the side of the Presiding Officers a little more because I had the ecstasy and agony of sitting in that Chair and also deciding some cases. What is actually happening is, when the matters go before the Presiding Officer, all the arguments that are advanced before him are of political nature. But the decision has to be legal and constitutional. Now, it is also provided, not originally, that the decision given by the Presiding Officer shall be appealed against and the appeal can be taken to the High Courts or the Supreme Court. Originally it was provided that the decision given by the Presiding Officers should have the finality and it will not be appealed against. But this matter was taken to the Supreme Court and the Supreme Court then decided that this provision which says that these matters shall not be appealable to the High Courts or the Supreme Court is ultra vires of the Constitution and it was struck down. It was struck down on the basis that this provision affects the jurisdiction of the Judiciary. They said that it should have been ratified by half the number of State Legislatures and as it was not done, the Supreme Court said that it is null and void and it was struck down. Now, every matter is going to the Supreme Court.
Sir, I am very sorry that sometimes the decisions given by the Presiding Officers are interpreted in a political manner. If those decisions are interpreted in a political manner, then the authority and the prestige which are available to the Presiding Officers are also diluted. Sometimes, the decisions have been interpreted very wrongly.
I would like to say that a decision was given by Shri Rabi Ray, who was the Speaker of this House earlier and the decision given by him was that the split has to be an one-time affair, it cannot take place in bits and pieces and in phases. Now, if a number of persons are going away from a party, it has to be one group of one-third number of Members of that party. If a few Members go away at one time, if a few Members go away at another time and if a few Members go away at third time, it is not allowed. This was a right decision given by the then Speaker of this House. I did subscribe to that decision and everybody had subscribed to that decision. The Supreme Court and the High Courts also had subscribed to that decision.
Later on, I had the misfortune or fortune of deciding one of the cases. This will sound a little personal, but please allow me to say a few words on that because there is a lot of misunderstanding on the decision which I had given and that decision has been misinterpreted not only by the politicians, but also by the media friends. When I explained to them that that is not the case and that is not decision given by me, nobody bothered to read the decision and they kept on saying what they did. Later on, I gave a decision. That was a decision relating to nearly 15 or 17 Members – I do not remember – in which I disqualified four Members and rest of the Members continued to be there. What was the decision given by me? My decision was not that the split could not be one-time affair. They have been saying that, in my decision, I said that the split need not be a one-time affair. It is not correct. That is a matter of record. It was published in the Gazette. Anybody can come and read that there is no reference to the matter relating to the split in the decision given by me. Not a word was written about the split. I did not say that Shri Rabi Ray’s ruling was wrong. I had no occasion to say that Shri Rabi Ray’s ruling was correct. I have not referred to the matter relating to the split.
What had actually happened? A political party had expelled a few Members from its fold in order to reduce the number from one-third to less than one-third. I said that this was a colourable exercise of law. A political party can expel the Member from its parliamentary wing only if it is provided in the Constitution or provided in the law or the rules. I asked: “What was the provision under which you could expel? Was there a provision in the Constitution?” They said: “No.” What was the provision in the law? They said, “No.” Were there any rules? They said: “No.” Then, they said: “It was according to the constitution of our Party that we had expelled them.” The consequence of allowing a party to expel the Members according to their constitution, which was not passed by the legislature and which was not registered also, was of enormous dimensions. If it were allowed, then the private persons would be binding the decisions of the Presiding Officers by making the amendments in the constitution of a party. There were nearly 24 parties in the House and the Speaker could not have been bound by the constitutions of 24 parties. That is why I said: “Show me the provisions in the Constitution or the Representation of the People Act or in the rules or any other law for that matter relating to the elections or any other law that you can expel the Members in order to reduce them from one-third to less than one-third, then I will allow.” Now that was the gravamen of the decision given by me. Unfortunately, even the most reputed newspapers not only wrote in their news reports but also in the editorials. When I told them that this was not correct and that amounted to a breach of privilege and they should not have done that, they said, “Yes, yes; we will not do it later on.” But they continued doing that. This was done on the electronic media and this was done in the print media also. I am saying this. I have never ventilated my views anywhere for the last so many years. But this is an occasion. I am saying this because this should be corrected and because I would like to say that the decisions given by the Presiding Officers have been correct. Maybe one or two decisions are wrong. Many times, they have been corrected. They have gone to the High Courts and the Supreme Court. The Supreme Court and the High Courts have upheld their decision and yet people, for political reasons, have been criticising the Presiding Officers which reduces the prestige of the Presiding Officer. So, I had written in my judgement: “Do not give this right to the Presiding Officer. Have some other mechanism to decide it so that the Presiding Officer can retain his prestige and dignity to conduct business of the House in a proper manner. Otherwise, do not criticise the Presiding Officer, at least wrongly.” But that has been happening. I am sorry to say that there are newspapers. I am not mentioning the names of those newspapers. The people who are hearing me would know who had written that. I have been reading those newspapers from my student days. Yet those newspapers had the temerity. They felt that they were well within their rights to write in the editorial also quoting the judgement wrongly. The judgement is a matter of record. It does not relate to any split. It relates to something different. Either they have misunderstood it or they intentionally wrote about it.
I know that it is a breach of privilege yet we did not do anything because we do not want to attach any importance to them. I am making a mention of this fact only at this point of time to show as to how onerous is the responsibility of the Presiding Officers when they are required to deal with these matters.