ARTICLE ON ‘ANALYSIS OF ANTI DEFECTION LAW IN INDIA’ (By- Ritvik Joshi)
ARTICLE ON
‘ANALYSIS OF ANTI DEFECTION LAW IN INDIA’
Authored By- Ritvik Joshi
Introduction
The
will of the people is expressed through the ballot box. The ballot determines
the party which would run the Government. Election is thus a vital component in
a democratic system of governance.
In
a democracy, emergence of political parties with different and diverse
ideologies is but natural.
Political parties give concrete shape to divergent ideologies and are
essential for the success of any democracy. However, defections are a
matter of concern for the party system. To be in power, a party or a
combination of parties must have the support of majority of the members of
the House. When no party commands majority, some parties agree to form a
coalition Government on the basis of a broad common programme.
Sometimes,
political parties even form a pre-poll alliance, particularly in the era
of coalition governments. It is in such a situation that defection by a few
members reduces the coalition government into a minority. Defection may take
place on grounds of ideology and principle or otherwise. Be that as it may,
defection or changing of affiliation is a political reality in a democratic
polity and more so in a parliamentary polity
The
Anti-Defection Law was passed in 1985 through the 52nd Amendment to the
Constitution, which added the Tenth Schedule to the Indian Constitution. The
main intent of the law was to combat “the evil of political defections”.
This
law was passed soon after Late Rajiv Gandhi became the Prime Minister of the
country with a massive mandate. This law would not have been passed if there
had been no Rajiv Gandhi and his government with an unparalleled massive
majority. This law was passed so that it curbs the political defections but the
ever increasing hunger of our legislatures and with our excellent legal
fraternity it was not a difficult task to find some loopholes in this law and
they used it to their interest.
There
are several issues in relation to the working of this law which need to be
discussed. Does the law, while deterring defections, also lead to suppression
of healthy intra-party debate and dissent? Does it restrict representatives
from voicing the concerns of their voters in opposition to the official party
position? Should the decision on defections be judged by the Speaker who is
usually a member of the ruling party or coalition, or should it be decided by
an external neutral body such as the Election Commission.
Background
The
law was added via the 52nd Amendment Act, 1985, soon after the Rajiv government
came to power with a thumping majority in the wake of the assassination of
Prime Minister Indira Gandhi. The Congress had won 401 seats in the Lok Sabha.
Between
the fourth and the fifth general elections in 1967 and 1972 from
among the4,000 odd members of the Lok Sabha and the Legislative Assemblies in
the States and the Union Territories, there were
nearly 2,000 cases of defection
and counter-defection. By the end of March 1971 approximately 50% of
the legislators had changed their party affiliations and several of them did so
more than once-some of them as many as five times.
After
the commencement of the constitution, however, it did not take long for
political functionaries to belie largely the hopes of the framers. Especially
after the departure of Nehru, the country witnessed a sharp decline
in political morality and propriety and a phenomenal growth of political
corruption of varied type. The worst form of corruption that emerged on a
massive scale on the Indian Political Scene was defection of legislators with
her individually or in groups. The unprincipled floor crossing was nothing but
a betrayal of the electorate and undermining of the political organs of
the state. The lust for power, position and money was obviously
behind such defections. The present day political process is closely
linked with socio-economic and cultural processes. Perversion of the former has
a devastating impact on the latter. This is what the politics of defection did
The Tenth Schedule of the Indian
constitution reads as follows :
Disqualification
on ground of defection.—
(1) Subject to the provisions of
paragraphs 4 and 5, a member of a House belonging to any political party shall
be disqualified for being a member of the House..
(a) if he has voluntarily given up his
membership of such political party; or
(b) if he votes or abstains from voting
in such House contrary to any direction issued by the political party to which
he belongs or by any person or authority authorised by it in this behalf,
without obtaining, in either case, the prior permission of such political
party, person or authority and such voting or abstention has not been condoned
by such political party, person or authority within fifteen days from the date
of such voting or abstention.
Explanation.—For the purposes of this
sub-paragraph,— (a) an elected member of a House shall be deemed to belong to
the political party, if any, by which he was set up as a candidate for election
as such member;
(b) a nominated member of a House
shall,—
(i) where he is a member of any
political party on the date of his nomination as such member, be deemed to
belong to such political party;
(ii) in any other case, be deemed to
belong to the political party of which he becomes, or, as the case may be,
first becomes, a member before the expiry of six months from the date on which
he takes his seat after complying with the requirements of article 99 or, as
the case may be, article 188.
(2) An elected member of a House who has
been elected as such otherwise than as a candidate set up by any political
party shall be disqualified for being a member of the House if he joins any
political party after such election.
(3) A nominated member of a House shall
be disqualified for being a member of the House if he joins any political party
after the expiry of six months from the date on which he takes his seat after
complying with the requirements of article 99 or, as the case may be, article
188. (4) Notwithstanding anything contained in the foregoing provisions of this
paragraph, a person who, on the commencement of the Constitution (Fifty second
Amendment) Act, 1985, is a member of a House (whether elected or nominated as
such) shall,—
(i) where he was a member of political
party immediately before such commencement, be deemed, for the purposes of
sub-paragraph
(1) of this paragraph, to have been
elected as a member of such House as a candidate set up by such political
party;
(ii) in any other case, be deemed to be an
elected member of the House who has been elected as such otherwise than as a
candidate set up by any political party for the purposes of sub-paragraph
(2) of this paragraph or, as the case
may be, be deemed to be a nominated member of the House for the purposes of sub-paragraph
(3)
of this paragraph.
The grounds for disqualification under the Anti-Defection
Law's are as follows,
a) If an elected member voluntarily gives up his membership
of a political party;
b) If he votes or abstains from voting in such House contrary
to any direction issued by his political party or anyone authorised to do so,
without obtaining prior permission.
As a pre-condition for his disqualification, his abstention
from voting should not be condoned by his party or the authorised person within
15 days of such incident.
·
As
per the 1985 Act, a 'defection' by one-third of the elected members of a
political party was considered a 'merger'.
·
The
members so disqualified can stand for elections from any political party for a
seat in the same House.
·
The
decision on questions as to disqualification on ground of defection is referred
to the Chairman or the Speaker of such House, and his decision is final.
·
All
proceedings in relation to any question on disqualification of a member of a
House under this Schedule are deemed to be proceedings in Parliament or in the
Legislature of a state. No court has any jurisdiction
Power To
Disqualify
The
Chairman or the Speaker of the House takes the decision to disqualify a
member. If a complaint is received with
respect to the defection of the Chairman or Speaker, a member of the House
elected by that House shall take the decision.
No Legal Protection On Split
Due to the 91st amendment, the
anti-defection law created an exception for anti-defection rulings.However, the
amendment does not recognise a ‘split’ in a legislature party and instead
recognises a ‘merger’.
Subversion Of Electoral Mandates:
Defection is the subversion of
electoral mandates by legislators who get elected on the ticket of one party but
then find it convenient to shift to another, due to the lure of ministerial
berths or financial gains.
Exception
Merger
A person shall not be disqualified if his original political party merges with
another, he and other members of the old political party become members of the
new political party, he and other
members do not accept the merger and opt to function as a separate group. This
exception shall operate only if not less than two-thirds of the members of party
in the House have agreed to the merger.
Bar on
Jurisdiction
Notwithstanding anything in this Constitution, no
court shall have any jurisdiction in respect of any matter connected with the
disqualification of a member of a House under this Schedule.
The
constitutionality of the Anti-Defection Law has been upheld by the Hon’ble
SupremeCourt in a 3:2 decision in the case of Shri Kihota
Hollohon v. Mr. Zachilhu and
others.[1] The Petition challenged the constitutionality
of the Para 7 i.e. which puts bar on the Jurisdiction.
The
majority consisted of M.N. Venkatachaliah, K.J.Reddy, and S.C. Agrawal, Jj. and
the minority was consisted by L.M. Sharma and J.S.Verma, Jj. At the same time
as upholding the Constitutional validity of the Anti-Defection law the
court has rules that the speaker’s orders under the law disqualifying a member
of the legislature on the ground of defection is subject to judicial review.
Second
issue was the operation and effect of Articles 136, 226 and 227 of the
Constitution which give the High Courts and Supreme Court jurisdiction in such
cases. Any such provision is required to be ratified by state legislatures as
per Article 368(2). The paragraph was therefore held invalid as it had not been
ratified.
To
the extent that the provisions grant finality to the orders of the Speaker, the
provision is valid. However, the High Courts and the Supreme Court can exercise
judicial review under the Constitution. Judicial review should not cover any
stage prior to the making of a decision by the Speakers/ Chairmen.
Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh
Legislative Assembly[2], which states that the Speaker has exclusive
jurisdiction to decide disqualification questions that are referred to him. In
any case, she argued that a Three Judge Bench cannot decide the present case
and has to await the judgment of a Five Judge Bench which has been made on a
specific reference made by a Two Judge Bench of the Supreme Court.
The
Supreme Court in Keisham Meghachandra Singh vs. the Hon’ble Speaker
Manipur Legislative Assembly & Ors. (2020) case made a significant
suggestion regarding disqualification powers of the Speaker. The Court was
adjudicating upon the matter relating to the disqualification of Members of the
Legislative Assembly (MLAs) in the Manipur Legislative Assembly under the Tenth
Schedule.
Court’s Recommendations
The
Court recommended the Parliament to amend the Constitution regarding the role
of Speaker as a quasi-judicial authority while dealing with disqualification
petitions under the anti-defection law (when such a Speaker continues to belong
to a particular political party either de jure or de facto).
The
Court suggested that an independent tribunal can be appointed which will
substitute the Speaker of the Lok Sabha and Legislative Assemblies to deal with
matters of disqualifications under Tenth Schedule.Currently, disqualification
of members of a House/Assembly is referred to the Speaker of the
House/Assembly.The Tribunal will be headed by a retired Supreme Court judge or
a retired Chief Justice of a High Court. The Court also suggested that some
other outside independent mechanism can adjudicate on such matters. This will
ensure that such disputes are decided both swiftly and impartially
Another
major contention on part of the petitioners is that the ‘finality clause’ as
under the para 6 of the Tenth Schedule excludes the court’s jurisdiction
rendering the speaker immune from Judicial Review. In India the position
is such that whatever authority decides disputes must be vested
with judicial authority. In the present case too the power to decide
disputed disqualification under para 6(1) is preeminently a
judicial complexion. The majority in the present case has held that
the Speaker/chairman under the para 6(1) of the Tenth Schedule is Tribunal and
that the finality clause does not oust the jurisdiction of the courts under
Arts. 136,226 and 227 but only limits it.[3]
In
Ravi
S Naik v. Union of India[4]
, issues raised were whether only resignation constitutes voluntarily giving up
membership of a political party, The words “voluntarily giving up membership”
have a wider meaning. An inference can also be drawn from the conduct of the
member that he has voluntarily given up the membership of his party.
The
court held in this case that, Rules under the Tenth Schedule are procedural in
nature. Any violation of those would be a procedural irregularity. Procedural
irregularity is immune from judicial scrutiny.
G.
Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly [5]
Issue
was raised whether a member can be said to voluntarily give up his membership
of a party if he joins another party after being expelled by his old political
party.
It
was held that, once a member is expelled, he is treated as an ‘unattached’
member in the house. However, he continues to be a member of the old party as
per the Tenth Schedule. So if he joins a new party after being expelled, he can
be said to have voluntarily given up membership of his old party.
If
we go deep into the impact of this law, it curbs the legislators’ freedom of
opposing the wrong policies, bad leaders and anti-people bills proposed by the
‘High Command’ in arbitrary and undemocratic manner. This law has given
additional dictatorial power to the political party to keep the flock together
for an entire term.
“Section
2(b) of the Tenth Schedule puts the Member of Parliament into the straight
jacket of obedience to the despotic dictates of the party whips which
undermines the democratic spirit. It also violates the principle of
representative democracy by empowering the party, and undermining the
relationship between elected representatives and their constituents. The
anti-defection law makes a mockery of parliamentary democracy by marginalizing
debates, as the legislators are not allowed to dissent, without being
disqualified by the House. Disruptions, rather than substantive debate, become
the only form of opposition possible. The Parliamentary debate has thus become
largely redundant.
Tenth
Schedule has laid down certain norms for keeping the flock of legislators of
each party together, and the ‘whips’ in the hands of legislative party leaders
reducing the hon’ble leaders and people’s representatives into shepherds and
sheep. As the political parties invented mechanisms to fail this constitutional
legislation, the judiciary played a very significant role in upholding the
legality and morality of the law besides expanding its horizons to curb most
treacherous practice of sudden political disloyalty. This Tenth Schedule
whenever used enhancing the burden of courts.
In
Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National
Congress,
the Speaker held that a person
getting elected as a candidate of a political party also gets elected because
of the programs of the party. If the person leaves the party, he should go back
before the electorate.
The
political parties, instead of maintaining standards within the party with
effective leadership, are resorting to litigation, begging the courts to decide
the political issues, which they failed to settle. It is not fair to blame
judiciary for taking time to decide this tricky question within the frame work
of constitution. Neither the Governor nor the Speaker is bona fide. Their moves
are not fair. They desperately try to use Constitutional power to settle
political scores and wreck political vengeance. In the process they just do not
care the people’s will in electing a party to power, for whatever reasons that
might be.
Independents
And Nominated Members
There
are a few nominated seats provided by the Constitution in legislative
houses. Unless he is dependent, he cannot be nominated as legislator. Hence he
can decide his loyalty. A nominated member of a house will be disqualified if
he joins any political party after six months. That means law permits him to be
loyal or disloyal to nominating party only for six months
It is wrong to say that there are no provisions for disqualifying independent members for defection from their ‘independent’ status. If an independent legislator joins a political party he would lose membership. Law mandates an independent legislator to maintain the independent status. He can choose to support any political party but should not attach himself to any. . This decision should be supported by the material placed on record. .
It is wrong to say that there are no provisions for disqualifying independent members for defection from their ‘independent’ status. If an independent legislator joins a political party he would lose membership. Law mandates an independent legislator to maintain the independent status. He can choose to support any political party but should not attach himself to any. . This decision should be supported by the material placed on record. .
In
Jagjit
Singh v State of Haryana , the legislators were elected as Members of
Assembly as independent candidates. Later they joined a political party and
news of their joining was reported in print as well as electronic media. That
fact was allegedly admitted by members in an interview given to a TV news
channel. Thereafter those members were disqualified from being a member of the
assembly.
The Supreme Court held: “when an independent member is alleged to have joined a political party the test to be applied is whether the member has given up his independent character on which he was elected. This has to be determined on appreciation of material on record and conduct of the member of the Speaker. No hard and fast rule can be laid down when the answer is dependent on facts of each case. The substance and spirit of anti-defection provisions are the guiding factors”. Disqualification of these members by speaker was upheld, despite the allegations that were made regarding the procedural defects in the process.
Supreme
Court also clarified one more question: “Where a sole member of a political
party in an Assembly joins another political party, he cannot get protection of
paragraph 3 of Tenth Schedule of the Constitution and will be
disqualified from being member under paragraph 2 of the Tenth Schedule of
the Constitution.”
There
have been instances wherein after the declaration of election results, winning
candidates have resigned from their membership of the House as well as the
party from which they got elected. Immediately, they have joined the political
party which has formed the government and have again contested from that
political party, which appears to be a fraud and goes against the spirit of the
democracy and 52nd constitutional amendment. The ingenious human brain invented
innovative ideas to obtain resignations and, in effect, made the anti-defection
law a cover to hide their heinous crime.
CONCLUSION
The
introduction of Schedule X in the Constitution attempted to bring in a
comprehensive legislation that would reduce the menace of defection. While the
law has succeeded in this aspect to a reasonable degree, there were certain
ambiguities. The Courts of the land have done a fair job in expounding the
stance by applying the law to particular facts and circumstances. Nevertheless,
very few general propositions have been laid down which have a universal
application. Thus, there seems to be considerable scope for judicial
interpretation, one that may give further clarity on the law and may bring in a
wider range of cases within the umbrella of this legislation.
In
the present context, corruption is so much linked with power that our
politicians have adopted a cynical attitude toward political
morality. Overpowering the anti-defection law for electoral politics with
the help of both money and muscle power and other unfair means for the
sake of power have affected the political morality of all the political parties
and as such none of them can claim themselves to be faithful to
nation in true sense. It is in this background that the laws
relating to defection was enacted in the Tenth Schedule.
Defections
and splits in parties have always been a feature of Indian Politics. Every time
the National Parliament or State Legislatures return a less-than-certain
outcome, outcome the "suitcases" and allegations of horse trading
drown out every other public discourse. In the mad circus
that follows, parties spirit their legislators away, hide
them, suborn them, and then triumphantly parade them before the world
Way Forward
If government stability is an issue
due to people defecting from their parties, the answer is for parties to
strengthen their internal part of democracy. There is an ardent need for
legislation that governs political parties in India. Such a law should bring
political parties under RTI, strengthen intra-party democracy, etc.
Chairman/Speaker of the house, being the final authority in terms of defection,
affects the doctrine of separation of powers. In this context, transferring
this power to higher judiciary or to Election Commission may curb the menace of
defection.
In order to shield the detrimental
effect of the anti-defection law on representative democracy, the scope of the
law can be restricted to only those laws, where the defeat of government can
lead to loss of confidence.
The Anti-Defection Law was passed in
1985 through the 52nd Amendment to the Constitution, which added the Tenth
Schedule to the Indian Constitution. The main intent of the law was to combat
“the evil of political defections”.
This law was passed soon after Late
Rajiv Gandhi became the Prime Minister of the country with a massive mandate.
This law would not have been passed if there had been no Rajiv Gandhi and his
government with an unparalleled massive majority. This law was passed so that
it curbs the political defections but the ever increasing hunger of our
legislatures and with our excellent legal fraternity it was not a difficult
task to find some loopholes in this law and they used it to their interest.
There are several issues in relation
to the working of this law which need to be discussed. Does the law, while
deterring defections, also lead to suppression of healthy intra-party debate
and dissent? Does it restrict representatives from voicing the concerns of
their voters in opposition to the official party position? Should the decision
on defections be judged by the Speaker who is usually a member of the ruling
party or coalition, or should it be decided by an external neutral body such as
the Election Commission.