Jammu: The ‘battle-royale’ in Rajasthan is inching towards an amusing finish. Speaker of Rajasthan Legislative Assembly has brandished ‘sword of disqualification’ against all sulking legislators who willfully skipped the legislature party meeting.
Whatsoever may be the end of this tug-of-war, the moral of the story remains – as to where the fulcrum stands while we weigh ‘freedom of speech and expression’ and the ‘Clause – 2 (1) of the tenth schedule of Indian Constitution’ in two opposite pans.
What Nani Palkiwala said: – Eminent jurist, Nani Palkhiwala had expressed serious apprehensions about the constitutionality of the tenth schedule of Indian Constitution, inserted by the virtue of a constitutional amendment in the year 1985. He was critical of political parties and the establishment trying to pigeon-hole the legislators and use them as bare instruments of sticking to power by number-games.
Retrograde trend: – The worrisome part is that a legislators who are supposed to legislate in accordance with the wishes and aspirations of the people – who have voted him or pinned expectations on him – are slowly moving towards a state where they are virtually turning into moribund sphinxes with a least feel of ‘Greatest good of the greatest number’, the golden ‘Utilitarian benchmark’.
My challenge to anti-defection law in J & K Assembly: – I remember Budget Session-2018 of J & K Legislative assembly and my Private Member’s Bill seeking amendment in this anti defection law. And the unusual heat generated by it in the chilly ramparts of the Assembly Hall.
My point was too simple and cogent. The disqualification of a member of a House should be only on the grounds that if he votes or abstains from voting in the House with regard to a confidence Motion, No-confidence Motion, Adjournment Motion, Money Bill or financial matters. The basic intent behind enactment of law has been to put a curb on useless defections, governments sustaining confidence vote and passage of money Bills.
The adage goes, ‘Status quoists fear change’. As I was deliberating upon various facets of my Bill, Law Minister of J&K was squirming and swirling in his seat. Later, he was at incredibly best of his lung power to devise out-of-context arguments just to scuttle my bill.
As expected, my viewpoint which had enough takers in treasury as well as in opposition benches could not sail through. While it was put to vote, Treasury benches were made to fall in line the whip issued by the chief whip. And the amendment could not see light of the day.
An unfortunate trend that has evolved and manifested is that brute majorities of ruling parties are used mindlessly to defeat Private Members’ Bills at the introduction stage – whatsoever may be the quality and utility of the Bill may be. The rumble-tumble of inter-party politics was taking toll of voices of sense. All this prepares a wicket for change so that the empowerment of the individual can coexist with the imperatives of political stability and public probity.
The anti-defection law enacted almost three-and-a-half decades back needs a fresh look into. It needs certain adaptations and further strengthening so as to be of greater relevance to our democratic set-up, today.
Status quo should make way for change: – While participating in debates on sensitive matters in Assembly, I had more often crossed the line while sticking to the opinion that legislators, be it from ruling or opposition side, are part of the institution – legislature. And in matters where financial and policy matters are not involved, legislators, from treasury as well as opposition benches should debate and discuss most openly while taking full resort to ‘propose, expose and depose’.
The Chief Minister and ministers in the House constitute ‘executive’. It has been seen that executive has slowly super-imposed itself on the legislature. This rarely is a healthy sign for a truly democratic set-up.
And with the passage of time, the institution of legislature is losing independence as well as vibrancy. Legislature must insist on participating in the initiation of policy and refuse to act as rubber-stamp on executive proposals. Legislature has to be pro-active and responsive, at least to some degree, to what citizens want. It should keep its ears skinned close to the ground.
Lawmaking is a consultative and transparent process and a basic feature of Westminster model of democracy. On top of it is the party whip, which enjoins upon its members which way to vote the way he is directed without any personal application of mind of the legislator. To put it the other way, legislators are discharging their constitutional duty in the way parties are directing them to. And it also may be that legislators sometimes vote against a legislative instrument which they had supported previously, depending on whether their party occupies the Opposition or Treasury benches.
This has the effect of preventing lawmakers from seriously individual thinking, research and reasoning for best practices to incorporate into legislation that is before the House for consideration and focus their energies on procedural matters. Whereas legislation is the principal and constitutional function of Legislature. If a bad law is enacted, it would remain on the statute book for decades.
Way ahead: –
Agree to disagree and disagree to agree is the very essence and edifice of a healthy democracy. But it looks that in the present scheme of things the element of dissent is being slowly accorded a farewell.
Whether Gehlot wins or Pilot loses is a smaller question. The large issue remains if we are able to save the democracy and the very principles and the institutions enshrined therein.
Judiciary deals with questions of Law as well as Constitution. It is hoped this time again it would prove to be a sentinel on the qui vive of Constitution.
And as the popular Latin quote reads, ‘Fiat iustitia, et pereat mundus’ (Let justice be done, though the world perishes).
*****
The columnist practices law at J & K High Court. He has been a member of J & K Legislative Assembly. Can be readily reached at [email protected]/ Mo – 9419212259.
