The Supreme Court Thursday agreed to hear a plea seeking directions to debar disqualified lawmakers from re-contesting bye-elections during the same term of the House for which they were earlier elected for a term of five years.
A bench of Chief Justice S A Bobde and Justices A S Bopanna and V Ramasubramanian issued notice to the Centre and the Election Commission of India and sought their responses.
In her plea, Congress leader Jaya Thakur said there is a concerted pan-India effort by political parties to render the Constitution”s 10th schedule (provision on disqualification on the ground of political defections) as“otiose and redundant”.
It said the import of the provisions of Article 191(1)(e) of the Constitution and its consequential effect on an MP or MLA, who suffers disqualification under the 10th schedule, would have to be considered by this Court which had no occasion till now to do so.
The plea, filed through advocate Varinder Kumar Sharma, said that once a member of the House incurs disqualification under the 10th Schedule, he or she cannot be permitted to contest again during the term for which he was elected as Article 172 makes a membership of a House co terminus with the term of five years of the House except in circumstances mentioned there in.
It said that once the 10th Schedule comes into play and a seat falls vacant due to disqualification then that particular disqualified member of the House has to incur disability under Article 191 (1)(e ) of the Constitution and be debarred from being chosen again during the term for which he/she was elected.
“Consequently his nomination shall be rejected as provided in Section 362 (a) of the Representation of Peoples Act,” the plea said.
Thakur in her plea said that it concerns the importance of party politics in a democracy and the requirement to have stability within the government to facilitate good governance, as mandated under the Constitution.
“We need to keep in mind that the separating line between dissent and defection requires to be made apparent, so that democratic values are upheld in balance with other constitutional considerations. In an endeavour to maintain such balance, the role of the Speaker is critical in maintaining the balance between democratic values and constitutional considerations”, it said.
Giving example of Manipur, Karnataka and Madhya Pradesh the plea said that MLAs from one party defected, resigned/disqualified to facilitate the formation of government by another party.
“These undemocratic practices are making a mockery of our democracy and the Constitution. The result is that due to this, people of the State are denied stability and the voters are denied their right to choose and elect representative having a common ideology,” it said.
In 2019, in Karnataka 17 MLAs resigned/were disqualified by the Speaker for anti-party activities, and 11 of them got re-elected, out of which 10 got ministerial berths in the new government after the earlier one fell, it said.
“There is a growing trend of Speakers acting against the Constitutional duty of being neutral. Additionally, political parties are indulging in horse trading and corrupt practices, due to which citizens are denied a stable government. Such undemocratic practices need to be curbed,” the plea claimed.
The plea also referred to the Madhya Pradesh political crisis of last year and said that MLAs elected to the Assembly from one party resigned and defected and were immediately made ministers without being MLAs.
“This is only to show the malaise that has crept in. This Court is the only succour. Moreover these constant defections cause huge loss to the public exchequer which is involved in the conduct of bye elections,” it said.
The plea said that a member of the House who voluntarily gives up the membership of a political party also comes under the preview of the 10th Schedule and is hence amenable to disqualification under Article 191(1) (e) of the Constitution of India.
“That the evils of political defection have been a matter of national concern. Therefore, it is expedient in the interest of justice that this Court intervenes in the matter and issues an appropriate Writ, Order or direction,” it said.