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PARLIMENTARY PRIVILIGES AND ANTI DEFECTION LAW IN INDIAN CONSTITUTION
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PARLIMENTARY PRIVILIGES AND ANTI DEFECTION LAW IN INDIAN
CONSTITUTION
AUTHORED BY - MITHIL M. BURANDE - LL.M 1st year
1.1.
ABSTRACT
Elections
are an important part of democratic governance and it is natural for
politicians with different ideas to
emerge. The free and fair competition of politicians for the power to govern the country during
the election process
shows that the democratic process
is important. Political
parties crystallize different
ideologies and are important for the success
of democracy. However,
departures from the party are
worrying for the party system
The anti-defection law deals with situations of defection in Parliament or state legislatures by:
(a)
members of a political party, (b) independent members, and (c) nominated
members. In limited circumstances,
the law allows legislators to change their party without incurring the risk of disqualification. The Anti-Defection Law, enshrined in the Tenth Schedule of the Indian
Constitution, aims to prevent defections by prohibiting voluntary
resignations and voting against party
directives. It safeguards electoral integrity and the stability of governments
by imposing penalties for violations.
1.2. INTRODUCTION
The parliament privileges: The law-making power rests upon the hands of the Indian
parliament. The parliament consists of the Lok Shabha and the Rajya Sabha. The
Lok Shabha is also called as the lower house or the house of people, its
members are elected directly. Whereas, the members of Rajya Sabha or the Upper
House are elected indirectly by the members of the state legislative assemblies
and the Union territories.
In
India, parliamentary privileges are available not only to the members
of a House but also to those who, though not members of a House,
are under the Constitution entitled to speak and take part in the proceedings of a House or any of its
committees. These persons are Ministers and the Attorney
General.1
The
privileges of a House have two aspects
(1) external, and (1) internal. They refrain anybody
from outside the House to interfere with its working. This means that
the freedom of speech and action
are restricted to some extent.
The privileges also restrain the members of the House
from doing something which may amount to an abuse of their position.
Article 105 defines the privileges of the two Houses of Parliament. This constitutional provision does not exhaustively
enumerate the privileges of the two Houses The endeavour of the framers of the Constitution was to confer
on each House very broadest
privileges, as broad as
those enjoyed by the House of Commons which possesses probably the broadest
privileges as compared to any other legislature in the world.2
1 https://lawcorner.in/what-are-various-parliamentary-privileges-in-india/#google_vignette
2 The Indian polity by
M. Laxmikant (7th edition)
The anti-defection law : The politics
of defection has been the bane of the parliamentary system in India. The vice of defection has been rampant
in India for quite some time, especially at the state
level. Defection means floor-crossing by a member
of one political party to another party.
Defection
causes government instability, for a government may be toppled over due to the defection of some of its supporters to the
opposition party converting it from a minority into a major ty party. Defection is undemocratic as it negates the electoral verdict.
A party which fails to per majority in the House through
election may yet be able to manoeuvre a majority in the House and form the government by inducing defections from other
parties. Thus, the party which may have won a majority
through election, and got the mandate from the people to form the government, may yet fail to do so because a few of its members defect
from the party.3
3 The Indian Constitution By M.P.Jain (8th edition)
2.1CONCEPT PARLIMENTARY PRIVILIGES:
Members
of the House of Representatives have certain individual and collective rights.
These are rights granted to members of parliament by law or by the government. Without
these rights, it will be difficult for Parliament
members to exercise and fulfil their powers that ensure the effective
functioning of the Parliament.
Therefore, in interpreting
these rights, attention must be paid to the general
principle that laws are
given to members for the purpose of enabling them to discharge their duties in
Parliament without interference or interference.4
2.2. MEANING:
“Parliamentary privileges” refers to a set of special rights
and immunities enjoyed
by members of the Parliament or Legislative Assembly and which are necessary for the operation
of the law. These rights
are granted to legislators to enable them to carry out their duties effectively without
interference or threat,
thereby protecting the freedom and independence of the legislature.
These include rights such as freedom of speech and
expression in the legislature, immunity from
arrest in public places during meetings, executive power and self-management of
the process without interference from
external authorities. Parliament's rule of law is essential to upholding democratic standards, enabling
debate and effective scrutiny, and preserving the dignity and authority
of the legislature.5
ARTICLE 105 OF THE INDIAN CONSTITUTION:
Powers,
privileges, etc., of the Houses
of Parliament and of the members and committees thereof
(1)
Subject to the provisions of this
Constitution and the rules and standing orders regulating the procedure of Parliament, there shall be
freedom of speech in Parliament.
(2)
No member of Parliament shall be liable
to any proceedings in any court in respect of
anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
4 https://lawcorner.in/what-are-various-parliamentary-privileges-in-india/#google_vignette
5 https://cms.rajyasabha.nic.in/UploadedFiles/Procedure/RajyaSabhaAtWork/English/244-310/CHAPTER8.pdf
(3)
In other respects, the powers,
privileges and immunities of each House of Parliament, and of the members and the committees of each
House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be
those of that House and of its members
and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act 1978.
(4)
The provisions of clauses (1), (2) and (3) shall
apply in relation
to persons who by virtue of this Constitution have the right to speak
in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in
relation to members of Parliament.6
2.3 CLASSIFICATION
OF PRIVILIGES:
Parliamentary privileges can be classified into two road
categories: 1.those that are enjoyed
by each House of Parliament collectively, and
2. those that are enjoyed
by the members individually.
Collective Privileges The privileges belonging to each House of Parliament collectively are:
1.
In has the right to publish its reports,
debates and proceedings and also the right to prohibit others from publishing the same. The 44th Amendment Act of 1978
restored the freedom of the press to
publish true reports of parliamentary proceedings without prior permission of
the House. But this is not applicable
in the case of a secret
sitting of the House.
2.
It can exclude strangers from its
proceedings and hold secret sittings to discuss some important matters.
3.
It can make rules to regulate its own
procedure and the conduct of its business and to adjudicate upon such
matters.
4. It can punish Members
as well as outsiders for bench of its privileges or its contempt
by rimand, admonition or imprisonment (also sus- pension
or expulsion, in case of members).7
5. It has the right to receive immediate information of the arrest, detention, conviction, imprisonment and
release of a member.
6. It
can institute inquiries and order the attendance of witnesses and send for
relevant papers and records.
7. The courts
are prohibited to inquire into the proceedings of a House or its committees.
8.
No person (either a member or outsider)
can be arrested, and no legal process (civil or criminal) can be served within
the precints of the House without the permission of the presiding
officer.
6 The Indian Constitution Bare Act
, 2023
7 The Indian polity
by M. Laxmikant (7th edition)
Individual Privileges The privileges belonging to the members individually are
1.
They cannot be arrested during the
session of Parliament and 40 days before the beginning and 40 days after the end of a session. This privilege is
available only in civil cases and not in criminal cases
or preventive detention
cases.
2.
They have freedom of speech in
Parliament No member is liable to any proceedings in any court for anything
said or any vote given by him in Parliament or its committees. This freedom is subject to the provisions of the
Constitution and to the rules and standing or ders regulating the procedure of Parliament.
3.
They are exempted from jury service.
They can refuse to give evidence and appear as a witness in a case pending in a court when
Parliament is in session.8
2.4
RELATION WITH FREEDOM
OF SPEECH:
There has been some confusion on the question
whether the Fundamental Rights control in any way the privileges which the Houses
enjoy under Article
105(3). Which is to prevail
in case of a conflict between such a privilege and a Fundamental
Right?
This question arose for the first time in Gunupati. In
one of its issues, the Blitz published a news
item casting derogatory aspersions on the Speaker of the UP Legislative
Assembly The Speaker referred
the matter to the Committee
of Privileges of the House
for investigations and re- port. The committee
summoned D.H. Mistry, editor
of the Blitz, to appear
before it to clarify the position. Mistry neither appeared
before the committee
nor did he send any reply. Thereafter, the Assembly adopted a resolution authorising the Speaker to issue an arrest warrant
against Mistry with a view to enforcing his presence before the House to
answer the charge of breach
of privilege Accordingly, the Speaker issued the warrant and, consequently, Mistry
was arrested in Bombay on
the charge of committing contempt of the UP Legislative Assembly. 9
He was brought to Lucknow and was lodged in a hotel for a
week without anything further being done in the matter. In the meantime,
a petition for a writ of habeas corpus was moved in the
Supreme Court on his behalf on the ground that Mistry's Fundamental Right under
Article 22(2) had been violated.
Article 22(2) envisages
that a person arrested must be produced
before a magistrate within
24 hours of his arrest The Supreme Court accepted the contention that as Mistry had not been produced before a
magistrate, his Fundamental Right under Article 22(2) was infringed and, accordingly,
the Court ordered his release.
The petitioner also contended that the proceedings before the Committee
of Privileges threatened
his Fundamental Right under Article 21 as well. According to Article 21, no person can be deprived of his personal liberty
otherwise than in accordance with the procedure established by law. The editor's contention was that the
proceedings before the Committee of Privileges violated
Article 21.
8 The Indian polity
by M. Laxmikant (7th edition)
9 The Indian Constitution by M.P.Jain 8th edition
The Court also rejected this contention. The Court argued
that the House can make rules under
Article 118 in case of a House of Parliament, or Article 208 in case of
a House of the State. Therefore, the
rules made by the House regulating the procedure for enforcing its Legislature powers,
privileges and immunities would fulfil the requirement of Article
21.
2.5.
OTHER PRIVILIGES :
FREEDOM FROM
ARREST
A member cannot be arrested on a civil proceeding within
a period of 40 days before and 40 days
after a session of the House. The object of this privilege is to secure the
safe arrival and regular
attendance of members on the scene
of their parliamentary duties. The privilege extends only to
civil arrest and not to arrest on a criminal charge, or for contempt of court,
or to preventive detention. The reason to exempt preventive detention from the scope of parliamentary privilege is that privileges of Parliament are granted for the service
of the country and not to endanger its security.
A detenue has no right to attend meetings of Parliament. A House of Parliament, however,
has a right to receive immediate
information about the arrest of any of its members, or about the offence and conviction, if any, of the
member after trial. According to the Lok Sabha Rules, when a member is arrested on a criminal charge or sentenced to
imprisonment by a court, or detained by an executive
order, the committing judge, magistrate or executive authority
should immediately inti- mate
to the Speaker the fact of arrest, conviction anviction or detention, its reasons,
and the place of detention
or imprisonment.10
The fact of release of the arrested member after
conviction on bail pending an appeal or otherwise,
is also to be notified to the Speaker. The Speaker reads out in the House the communications received by him under these
rules. Failure to intimate to the House the detention of one
of its members amounts
to a breach of the privilege
of the House.
A member of
the Legislature arrested or detained has a right to correspond with the Legislature, to make representations to the Speaker and the Chairman of the
Committee of Privileges, and executive
authority has no right to withhold such correspondence. The House may also
obtain information about the condition of the member
under detention, the treatment meted out to him and other facilities afforded to him by
putting questions to the government.
10
https://loksabhadocs.nic.in/LSSCOMMITTEE/Privileges/Introduction/Introduction%20Committee%20of%20Priv
ileges%2017%20LS.pdf
INQUIRIES
A House has power to institute inquiries and order
attendance of witnesses, and in case of disobedience
to bring witnesses in custody to the bar of the House.A person charged with contempt
and breach of privilege, can be ordered
to amend and if there
is a wilful disobedience of the order, the House has power to take
the person into custody and the House
alone is the proper judge when
these powers are to be exercised.
FREEDOM FROM JURY SERVICE
Members of
Parliament are exempted
from jury service.
Members may decline
to give evidence and appear
as a witness in a court of law when Parliament is in session. These privileges
are found- ed on the paramount right of
the House to the
attendance and service of its
members.
PRIVACY
OF DEBATES
A House of
Parliament has a right to exclude strangers
from its proceedings and hold its sittings in camera. This power may be used by the House to go into secret
session for reasons
of national security. The Speaker/Chairman may, whenever he thinks fit, order the withdrawal of strangers from any
part of the House.
PUBLICATION
OF PROCEEDINGS
There was a time when the House of Commons used to
prohibit publication of its proceedings by
passing resolutions. Even as late as 1762, the House of Commons characterised
in a resolution the publication of
its proceedings as "a high indignity to and a notorious breach of the privilege of this House." The
reason for this attitude was that there was no adequate protection against arbitrary kings, and members of the House
could come to grief for doing plain speaking in the House.
In such a situation, secrecy of parliamentary debate was
considered necessary not only for the due
discharge of the responsibilities of the members but also for their personal
safety. This object could be
achieved by prohibiting publication of any report of the debates and d proceedings of the House
and also by excluding strangers from the House
and holding debates
behind closed doors.
2.6.
BREACH OF THE PRIVILIGES AND CONTEMPT OF THE HOUSE:
"When any individual or authority disregards or
attacks any of the privileges, rights and immunities,
either of the member individually or of the House in its collective capacity,
the offence is termed as breach
of privilege and is
punishable by the House.
"
Any act or omission which obstructs a House of
Parliament, its member or its officer in the
performance of their
functions or which has a tendency, directly
or indirectly to produce results
against the dignity, authority and honour of the House is treated as a
contempt of the House, Though the two phrases,
'breach of privilege' and 'contempt of the House'
are used interchange- ably, they have different implications.
'Normally, a breach of privilege may amount to contempt
of the House. Likewise, contempt of
the House may include a breach of privilege also. Contempt of the House,
however, has wider implications. There may be a contempt
of the House without specifically com- mitting a breach of privilege'. Similarly, 'actions which are not breaches
of any specific privilege but are offences against the dignity and
authority of the House amount to contempt of the House 30 For example, disobedience to a legitimate
order of the House is not a breach of privilege, but can be punished
as contempt of the House.11
11 https://cms.rajyasabha.nic.in/UploadedFiles/Procedure/RajyaSabhaAtWork/English/244-310/CHAPTER8.pdf
3.1. CONCEPT
OF ANTIDEFECTION LAW:
In recent times, Defection Laws have been a fundamental
issue due to complete violation of the defection
rules in the country by the leaders.
Since independence, the practice of defection has been a debatable issue in India. The
politics of defection has been the bane of the
parliamentary system in India. The vice of defection has been campant
in India for quite some time, especially at the state level. Defection means Floor-crossing by a member of one political party
to another party.
The 52nd Amendment Act of 1985 provided for T the
disqualification of the members of Parliament
and the state legislatures on the ground of defection from one political party
to another. For this purpose, it made changes in four Articles
of the Constitution and added
a new Schedule (the Tenth Schedule) to the Constitution. This act is
often referred to as the 'anti- defection law'.
Later, the 915 Amendment Act of 2003 made one change in
the provisions of the Tenth Schedule.
It omitted an exception provision i.e., disqualification on ground of defection
not to apply in case of split.12
3.2.
WHAT IS DEFECTION ?
The Oxford dictionary has described Defection as the act
of leaving your own country or political party and joining an opposite one.
According to the report of committee on defection in
1967, Defector was defined as a person “who
is an elected member of the legislature and had been allotted the reserve
symbol of any political party. He can
be said to have defected it, if after being elected as a member of either house of Parliament or at legislature
council or legislative assembly of state or union territory and he voluntarily renounces allegiance or
association with such political party provided that his action is not in
consequence of the decision of the party concerned”13
3.3WHAT IS
LAW OF ANTI-DEFECTION?
Anti Defection Laws basically provide for the grounds
under which a Member Legislative Assembly
or a Member Parliament can lose his privileges as an Elected Representative of
a party and hence can be disqualified
from the party. These Grounds have been provided under the Tenth Schedule of the Constitution. The Indian Judiciary has
time and again intervened through
various judicial pronouncements and has tried to lay down several guidelines
through precedents in order to promote better
politics and healthy competition
among the parties.14
12 INDIAN CONSTITUTION BY ,M.P.JAIN 8TH EDITION
13 https://blog.ipleaders.in/explained-anti-defection-laws/
14INDIAN POLITY
BY M LAXMIKANT 7 TH EDITION
3.3 HISTORY
AND NEED OF ANTIDEFECTION LAW :
There is a well-known phrase of “Aaya Ram Gaya Ram” which
relates back to 1967, when Gaya Lal,
who was a congress leader fortnight went from congress to Janata Party and then back to
congress and then again to Janata Party.
In the journal titled “Aya Ram Gaya Ram- The politics of defection” by the Indian
Law Institute in 1979, it was stated
that between the period of 1967 to 1969 more than 1500 party defections and 313 independent candidate defections had taken place in the
12 states of the country. It is estimated
that till 1971, more than 50% of the legislature had switched from one party to another.15
KIHOTA HOLLOHON
CASE 1993
Explaining the rationale
underlying Schedule X, the Supreme
Court has stated that the provisions
of Schedule X give recognition to the role of the political parties in the
political process. A political party goes
before the electorate with a particular programme; it sets up candidates at the election on the basis of
such programme; a candidate is therefore elected on the basis of the party programine.
The underlying premise of Schedule X is that political
propriety and morality demand that if a
member of a legislature, after the election, changes his political affiliation
and leaves the political party which
had set him up as a candidate at the election, then he should give up his seat in the legislature and contest
election again under the banner of the new party adopted by him.16
3.4
DISQUALIFICATON ON BASIS OF
Members of Political Parties: A member of a House
belonging to any political party becomes disqualified for being
a member of the House,
(a)
if he voluntarily gives up his membership of such political such House
contrary to any direction issued by his Pany; or
(b)
if he votes or abstains from voting is political party without
obtaining prior permission of tach party and such act has not been condoned by
the party within 15 days.
Independent
Members: An independent member of a
House (elected without being set up as a
candidate by any political party) becomes disqualified to re- main a member of
the House if he joins any political party after such election.
Nominated Members: A nominated member of a House becomes 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 in the House.
This means that he may join any political party
within six months of
taking his seat in the House without inviting this disqualification.17
15
https://blog.ipleaders.in/explained-anti-defection-laws/#Grounds_for_review_of_the_decision_of_speaker
16 Kihoto hollohsn v. Zachilhu 1993
17 INDIAN POLITY
BY M LAXMIKANT
3.5
EXCEPTION OF
THE LAW:
The above disqualification on the ground of defection
does not apply in the following two cases:
(a)
If a member goes out of his party as a
result of a merger of the party with another party. A merger takes place
when two-thirds of the members of the party
have agreed to such Berger.
(b)
If a member, after being elected as the
presiding officer of the House, voluntarily gives up the membership of his party
or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of this office.
It must be noted here that the provision of the Tenth
Schedule pertaining to exemption from dis- qualification in case of split by one-third members
of legislature party has been deleted by the 91 Amendment
Act of 2003. It means
that the defectors
have no more protection on grounds of splits.18
WHETHER THE RIGHT TO
FREEDOM OF SPEECH AND EXPRESSIONS OF THE
PARLIAMENTARIANS AND LEGISLATORS IS VIOLATED BY THE TENTH SCHEDULE:
The Constitution has avowedly guaranteed the right to freedom of speech and expression under
Article 19 of the Constitution of India; however, it is subject to the
reasonable restrictions mentioned therein.
This right is guaranteed to every citizen
including the legislators and the parliamentarians; thus, this was made
a ground to question the legitimacy of the Para 2 of the schedule (Grounds for disqualification). It was held by the
Supreme Court in Kihoto Hollohon case, that the Tenth Schedule does not subvert the rights of elected members of
parliament and the legislature and thus,
it did not violate Article 105 and 195 of the constitution while holding this
it was expressed by the Supreme
Court that the provisions of the Tenth schedule are salutary and were intended to strengthen the fabric of
Indian parliament democracy while curbing unprincipled and unethical political defections.19
18 91 th amendment in the Indian constitution 2003
19 https://blog.ipleaders.in/explained-anti-defection-laws/#Grounds_for_review_of_the_decision_of_speaker
Lacunas
in defection law:
The competition among the individuals in a
party can emerge due to numerous reasons; it can be due to the inward
disagree against the conclusions of senior pioneers
or the battle for control
and since of these reasons the chosen individuals alongside other chosen
individuals take off these parties to
connect the restriction. This may annihilate the equitable soul of our country since a steady government is inborn for a popular
government. The visit government emergency
can lead to doubt among the individuals
and can cause a menace.
The Hostile to Absconding laws were included
into the Structure of India as a set of rules for the reasonable play among the chosen individuals for distant
better. When a individual gets assigned
as a part by the party and contests election beneath the image of a party, he
ought to owe his steadfastness to that party
but within the current
situation, numerous pioneers
take off their
parties and connect
the restriction which
in turn can lead to break down of the government in that specific
state which causes political precariousness. Hence, it is vital
for the lawmakers
to act in adherence to the
whip and the convictions of
the party.
ADVANTAGES AND DISADVANTAGES:
ADVANTAGES:
1.
If provides for greater stability in the
body pol ne by checking the propensity of legislators to change parties.
2.
It facilitates democratic realignment of parties
in the legislature by way of
merger of parties
as non-developmental
expenditure incurred on irregular elections.
3.
It gives, for the first time, a
clear-cut constitutional recognition to the existence of political parties.
DISADVANTAGES:
1.
It does not make a differentiation
between dis sent and defection. It curbs the legislator's right to dissent and freedom of conscience
Thus, 'it clearly puts party bossism on a pe destral and sanctions tyranny
of the party in the name of the party discipline.
2.
Its distinction between
individual defection and group defection is irrational. In other words it banned only retail defections and legalised wholesale
defections’.
3.
It does not provide for the expulsion of
a legislator from his party for his activities outside the legislature.
4. Its
discrimination between an independent member and a nominated member is
illogical. If the former joins a party, he is
disqualified while the latter is allowed to do the same.20
20 The Indian constitution by D D Basu
4.1CONCLUSION:
Parliamentary privileges are fundamental
rights and allowed to individuals of parliament to guarantee the successful working of legislative bodies. These
privileges include freedom of speech and debate, freedom
from arrest during
sessions of parliament, and the right to regulate
their own internal affairs. these privileges are essential for
legislators to carry out their duties without fear of intimidation or interference, fostering open discourse and accountability within
the democratic process.
On the other hand, anti-defection laws are
authoritative measures pointed at protecting party teach and political
solidness by anticipating lawmakers from exchanging parties self- assertively. These laws regularly force punishments on individuals who imperfection from their party, such as preclusion from holding
office or removal from the council. Whereas anti- defection laws offer assistance keep up the coherence of
political parties and avoid deft surrenders that might weaken
the law-based handle,
they too raise questions approximately the adjust between party devotion and person soul in agent majority rule government.
Article Information
PARLIMENTARY PRIVILIGES AND ANTI DEFECTION LAW IN INDIAN CONSTITUTION
Authors: MITHIL M. BURANDE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/04
- Issue 7
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International Journal for Legal Research and Analysis
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