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REMOVING THE VEIL OF THE ANTI-DEFECTION LAW IN INDIA
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REMOVING THE VEIL OF THE
ANTI-DEFECTION LAW IN INDIA
Abstract
The purpose behind the enactment of the anti-defection law was to curb
the rising cases of defection but unfortunately, it has done nothing but even
opened a new way of defection such as Collective defection, which allows
defection legally without facing any arbitrary action. In this paper, we are
going to deal with all the loopholes that have been smartly inserted by the lawmakers
knowingly or unknowingly which have made our country merely a namesake biggest
democracy in the world last will give the possible measures that should be
considered by the lawmakers to rectify these issues.
Introduction
The term ‘defection’ is here related
to an act where a Member of Parliament or a State Legislature defect or leave
his political party after winning the election, earlier this practice used to be
done due to conflict of interest or ideology but nowadays it is mostly due to other
reasons such as bribe, posts etc. The defection occurs in every democratic country
and in India where we follow the indirect form of democracy where people are
represented by the elected representatives. The Indian government after 3
decades of independence came up with the anti-defection law in 1985 through the
52nd Constitutional amendment which inserted new Schedule X, during
the Rajiv Gandhi tenure, which was passed unanimously to remove the defector
from the house and put many restrictions on him but, after all, the government knew
the fact that this law was being made for the member of Parliament and the
State Legislature which the government would also be subjected therefore they
very smartly made loopholes in the law in the name of exception or collective
defection which have been the reason of many political clashes in the center as
well as a state such as Eknath Shinde defected Shiv Sena with the reason that
his demand for separation of Maha Vikas Aghadi due to ideological difference
was nothing but just his excuse to hide his main agenda. The loopholes in the
defection law have made this law nothing but fool the citizens, which we will
see in this article. Party politics has been severely undermined by the
politics of the Aaya Rams and Gaya Rams. It has been Time and again experienced
that upon being elected to the legislature, lawmakers switch parties and cause
political instability - often enticed by the rival party with plum public posts
or, simply, money.
When was the anti-discrimination law’s seed sown?
India attained independence on August
15, 1947, and on January 26, 1950, the Indian Constitution went into effect. As
there was no provision mentioned in the original constitution. The reason could
be that it was the only single largest party ruling at the center as well as
the states at the time of independence and during the making of the
constitution. So, they might have thought that they would also be in power. From
the general election till 1967, there were about 500 instances of defection
mostly from states which strengthened the need for defection in the country
after almost 3 decades of independence.[3] It
was in 1967 when one Gaya Lal from Haryana, switched parties three times within
the same day which was nothing but a fraud with the citizens who chose him to
represent their needs in the house. The process of changing parties after
getting elected continued recklessly. From 1967 to 1972 more than 50% of the legislators
switched sides at least once.[4]
The first attempt was made by Lok Sabha in 1967 to curb defection by appointing
a high-level committee to look at the problem and give recommendations. The
committee was chaired by Y.B. Chavan and consisted of other legal and political
luminaries such as M.C. Setalvad, Jay Prakash Narayan, and H.N. Kunzru among
others. The committee submitted its report in 1969 with the following
recommendations-
i)
There
should be a code of conduct in a party for its members
ii)
In
cases of defection for ideological reasons, the defector should be disqualified
from the legislator but should be allowed for the by-election
iii)
If
the defection is for the lure of office or pecuniary gains the defector should abstain
from contesting election for some period.[5]
After 4 years of recommendation of
the Y.B. Chavan committee, the parliament on 16th May 1973
introduced the Constitution (32nd Amendment) 1973. The was became a
matter of public debate and was referred to a joint committee of 2 Houses. However,
the Indira Gandhi government lost power and the bill lapsed. The second attempt
was made by the Janta Party on 28th August 1978 to bring forward a
Bill on defection but was opposed at the stage of introduction and was
withdrawn. During this time in 1957, the J&K assembly made law on defection
as the J&K Representation of Peoples Act, 1957[6].
The Constitutionality of this section 24- G Act was upheld by the J&K HC in
the case of Mian Bashir v. State of J&K[7]. Finally,
the bill was introduced and the law was passed in Rajiv Gandhi's tenure.
Provision was introduced by way of 10th schedule- 52nd
Amendment Act, 1985. Provisions of Schedule X are as follows-
·
Disqualification
in case, where the member voluntarily given up his membership of his political,
and if he votes or abstains from voting in such House contrary to any direction
issued by the political party to which he belongs without obtaining the prior
permission of such political party within 15 days from the date of such voting
or abstention[8]. These
provisions will be questioned in the coming para.
·
An
independent member of a House would be disqualified if he joins any political
party after such an election[9]. This
provision is also going to be dealt with in the coming paragraph.
·
A
nominated member of a party would be disqualified if he joins any other party
after six months from the date on which he takes his seat after complying with
the requirements of Article 99[10]
or Article 188[11], as the
case may be[12].
·
The
disqualification would not apply in case of the split of the party by 1/3rd
or more of the members of a party defect[13]. This
para 3 was repealed by the 91st Constitutional (Amendment) Act, 2003
by the Atal Vihari Government on the advice of the Venkat Chalaya Review
Committee.
·
The
disqualification is not applicable if a 2/3rd member goes out as a
result of a merger of his original political party with another. Also, if a
member, after being elected as the presiding officer (Speaker or Dep. Speaker),
gives up membership of a party he belonged, to or does not rejoin that party or
becomes a member of another party[14].
·
The
power to make decisions on disqualification matters would be in the hands of the
Chairman or the Speaker and his decision shall be final. And if the Chairman
and the Speaker itself are subject to disqualification then in that case matter
would be referred to a person appointed by the house and his decision would be
final[15].
This provision is also a subject of criticism.
·
The
decision of the Speaker or the Chairman or any person appointed by the House on
the matter of disqualification of a member shall be final and courts can not
interfere[16]. The
apex court in the case of Kihoto Hollohan v. Zachillu[17],
while declaring para 7 of the 10th schedule as unconstitutional, the
SC held “the function of the speaker, while applying the Anti-defection law is
subject to judicial review because it is similar to a tribunal's decision.”
The abovementioned
provision shows the smartness of the lawmakers and how cunningly they fooled
the citizens of this country by leaving loopholes in every provision that they could
use when they needed. We are going to deal with all the criticism in the upcoming
paragraph.
Role of the Judiciary on matters related to Anti Defection law
·
According
to Para 7 of the 10th Schedule there was a Bar of the jurisdiction
of the court that means Notwithstanding anything in this Constitution, no court
shall have any jurisdiction on any matter related to a disqualification of a
member. But this para 7 was declared unconstitutional by the Supreme Court in
the case of Kihoto Hollohan v. Zachilu, 1992, SC held – “The function of a speaker,
while applying the Anti defection law is like of a Tribunal and therefore is
open to judicial review”.[18]
After this judgment court has started reviewing the cases related to defection
and has made several statements from time to time. A few examples of it are-
·
The
word ‘voluntarily given up his membership of such political party’ is not
synonymous with ‘recognition’ as observed in the case of Ravi S. Naik v.
UOI, 1994[19].
·
The
SC court in the case of G. Vishwanathan v. Hon’ble Speaker Tamil Nadu
Legislative Assembly, 1996[20],
Court said- “Even though a member has been expelled by the party he will not
cease to be a member of that party and will continue to belong that party as an
unattached member”.
·
SC
further observed “Speaker has no power to review his/her own decision on the
question of disqualification and same can only be corrected by judicial review”
held in the case of Kashinath G. Jalmai v. Hon’ble Speaker, 1993[21].
·
“Speaker
cannot disqualify members when a motion of removal is pending against him” held
by SC in the landmark case of Nabam Rebia Bamang Felix v. Hon’ble Speaker,
2015[22].
·
The
court observed “No, the Speaker has no power to take sue moto cognizance under
10th Schedule.
·
In
the Chandan Kumar v. UOI, 2022[23]
case, SC held while dismissing the petition that “post-poll alliance subject to
certain conditions is permissible.”
Therefore, the judiciary after striking
down para 7 has been playing an active role from time to time and has opened the
gate of judicial review of the speaker’s decision on the matter of
disqualification.
Criticism
of Anti - defection Law
i)
Para
2 (1) (a)[24] is
violative of an individual member's freedom of choice. There can be cases where
there can be a reason for giving up a member due to a change in the ideology of
a party and therefore disqualifying is not a reasonable step.
ii)
Para
2 (1) (b) of the 10th Schedule[25]
which restrains a party member from acting or voting against the party even if
his act is reasonable and for the interest of the people who elected him. This
is misleading and violates the party member’s Fundamental right of Freedom of
Choice given under Article 19 of the Indian Constitution and the Parliamentary Privileges
(Article 105)[26]. It
restrains the members to speak as their party will issue a whip and disqualify
him in response. The whole functioning of a parliament as a consequence of it
would not be just and fair because the members sitting there are not speaking
from their minds but have been seated there to just nod their heads when their
leader speaks something.
iii)
Para
2 (2) of the 10th Schedule says an independent candidate can be
disqualified if he joins any political party after the election[27].
People who are in Favor of this provision might argue that a member has been
elected by the citizens for its ideology and the member joining the party with a
different ideology would be injustice to them. But what if the joining
independent member is facing difficulty in raising the issue related to its
constituency alone?
iv)
Para
2 (3) disqualifies a nominated member of a party if he joins any other
political party after the expiry of 6 months[28]
is baseless. Why 6-month gap and how this gap has been decided by the
lawmakers? What if the nominated member betrays the party before the expiry of the
six months?
v)
Para
4 of the 10th Schedule exempts those members from defection who
defect in a group that is, if the 2/3rd member of any party members leaves
the party and joins any other party or chooses to remain independent[29]. What
is the rationale behind 2/3rd and how it has been decided? Isn’t it a
promotion of collective defection? Is it not a loophole for a party to topple
any government in the center as well as state legislature by shifting the majority?
vi)
Para
6 says that the decision related to the disqualification of a member under
schedule 10th would be given by the Speaker or the chairman or any
member appointed by the House in case of proceeding is against the Speaker or
the Chairman itself, shall be final[30]. Why
the power to decide the case of disqualification of a member is given to a person
appointed by the majority government? Will the Speaker or Chairman belonging to
the ruling party act without any bias if a defected member joins their party?
We are going to see some
measures to cope with these above-mentioned issues in the upcoming para.
Conclusion:
Some Suggestions
i)
A
party member should not be disqualified merely in case of voluntarily giving up
the membership. Instead, he must be given a chance to explain the reason for
leaving the party and if the reason is reasonable then he should not be
disqualified.
ii)
Para
2 (1) (b) should be repealed. It provides disqualification in case members do
not vote or abstain as per the order of the party. This provision tries to
muffle the voice of the citizens who have chosen the member to represent their
problems and speak for them in the House. Further, this provision violates
member’s Fundamental right to speak under Article 19 of the Indian
Constitution.
iii)
Para 2 (2) of the 10th Schedule
needs for an amendment. The present provision disqualifies an independent
member if he joins any party after the elections. The election should be
conducted again after the waiting period of at least 6 months to give a chance
to the defected member of a party to show its voters that even after his joining
another party he has still the same ideology on which he has been elected.
Further court also observed in the case of M.P. Singh v. Chairman Bihar
Legislative Council, 2005[31], Court
said- “When you contest election against the party, you are willing to give up
the party.”
iv)
Para
2 (3) of the 10th Schedule also needs an amendment. The present
provision bars the nominated member of a party from leaving the party after the
expiry of 6 months. If he leaves after 6 months he would be disqualified.
Amendment should be that the 6 months bar should be removed and a member can at
any time defect the party after giving satisfactory reason to the House and at
least 50% of both the ruling and the biggest opposition party members accept
the reason.
v)
Para
4 of the 10th Schedule needs to be abolished. This para exempts the
practice of collective defection that at least 2/3rd members of a
political party. By this provision, only members started defection legally without
facing any action by leaving the party in the herd. Recent examples of
government topple are such in the Karnataka assembly election 2018 where BJP formed
a coalition and toppled the Congress government and in the Maharashtra assembly
election 2019 where a pre-poll alliance of BJP and Shiv Sena broke out after
the election due to the seat of Chief Minister and Shiv Sena joined the
opposite ideology party of National Congress Party (NCP) which had not liked by
the many members which resulted in rebellion in the Shiv Sena party where its
member Eknath Shinde left the Shiv Sena along with other members to form a
government with BJP. The same was done in the case of the BJP taking power in
Madhya Pradesh. So, to avoid such clashes pre poll alliances should produce
their agreement related to the roles of each party after gaining power and it
should be propagated to the public and the election commission if any party
works against the agreement should not be allowed to rule till the next
election.
vi)
Para
6 of the 10th Schedule in amendment in the power to make decisions
on the issues related to defection. Presently, this provision gives the power
to give decisions on the matters under schedule 10th merely to the
Speaker (in case of Lok Sabha) the Chairman (in case of Rajya Sabha), or any
member appointed on behalf of the above two if the defection proceedings are
going against them. This provision gives a tool to the ruling government to act
in bias and due to not any time limit there have been instances where the speaker
has delayed the anti-defection in cases where defected members joined the
ruling party. The Supreme Court in the case of Keisham Meghachandra Singh v.
Hon'ble Speaker Manipur Legislative Assembly, 2020[32], “matter
related to defection under 10th Schedule of the Constitution should
be decided within a period of 3 months in absence of exceptional reasons”. It
was merely the suggestion by the court to the Speaker and hence the situation
remained the same. Further, it has been observed by the courts in many
cases where the Speaker acted unfairly or unsatisfactory such as in the case of
Balchandra Jarkiholi v. B.S. Yeddyurappa, 2011[33],
SC said “Speaker while deciding the case of disqualification is bound to follow
principles of natural justice and cannot extraneously give decisions”.
Currently, the present government
attitude is not in favor of any amendment in the 10th Schedule of
the Constitution even after the Law Commission suggests that the question of
disqualification of a member should be adjudicated by the President on the
recommendations of the Election Commission and not by the speaker. The
rationale behind this is that the legislators should not be free to ditch the
voters who vote for the individual and opt for a particular party based on its
manifesto[34].
Further, the National Commission to Review the Working of the Constitution has
also made certain recommendations for substituting the post of speaker or
Chairman to adjudicate on issues related to the disqualification of members on grounds
of defection into the hand of Election as an adjudicatory tribunal.
However, the attitude of the present
government towards any amendment in the 10th Schedule can be seen
from the reply given by the Ministry of Law and Justice to a question raised by
the Shri G.C. Chandrashekhar (MP) on 15/12/2022. Further, no attempt was made
by the current government to amend the 10th Schedule even after the
recommendation given by the SC in the case of Kesham Meghachndra v. Manipur
Leg. Assembly, 2020,[35]
where SC suggested- “The Parliament should amend the Constitution to provide
for an independent mechanism such as Permanent Tribunals headed by the retired
judged to decides disputes under 10th Schedule”. Therefore, even
after many suggestions given by various scholars and the apex courts, the
present government does not seem in any mood to amend the Schedule. Therefore,
we appeal to the government to consider the above-given criticism and their
possible suggestions and if they have any which are more beneficial in ensuring
justice to the voters and preserving the essence of democracy in the country.
[1] Author is a 2nd Year
Student of B.A. LL. B (Hons.) at Jamia Millia Islamia, New Delhi, India.
[2] Author is a 3rd Year
Student of B.A. LL. B (Hons.) at Jamia Millia Islamia, New Delhi, India.
[3] K.N. Singh, Anti-Defection law and
Judicial Review 38 JPI 31 (1992).
[4] J.K. Mittal, Anti-Defection Act: A
comment on its Constitutionality (1987) 3 SCC(J) 25 at 26.
[5] Gulab Gupta, Anti-Defection law-An
Introspection, 1966 (IX) CILQ 127 at 130.
[6] The J&K Representation of
Peoples Act, 1957 (Act No. IV of 1957), Sec. 24- G.
[7] on 13 November, 1981.
[8] The Constitution of India,
Schedule X, Para. 2 & 1 (a), (b).
[9] The Constitution of India,
Schedule X, Para. 2 (2).
[10] The Constitution of India, art.
99.
[11] The Constitution of India, art.
188.
[13] The Constitution of India,
Schedule X, Para. 3.
[15] The Constitution of India,
Schedule X, Para. 6
[16] The Constitution of India,
Schedule X, Para. 7
[17] 1992 SCR (1) 686
[18] (1992) SCC 309
[19] 1994 AIR 1558
[21] 1993 AIR 1873
[22] (2017) 13 SCC 332
[23] 2022 LiveLaw (SC) 947
[25] The Constitution of India,
Schedule X, Para. 2 (1) (b).
[26] The Constitution of India, arts.
19 & 105.
[28] The Constitution of India,
Schedule X, Para. 2 (3)
[29] The Constitution of India,
Schedule X, Para. 4
[31] AIR 2005 SC 69
[32] W.P. (c) No. 223 of 2020
[33] (2011) 10 S.C.R. 877
[34] Law Commission of India, 170th
Report on Reform of Electoral Laws, available at, http://www.lawcommissionofindia.nic.in/lc170.htm
- last visited on April 8, 2010
[35] (2020) SCC OnLine SC 55
Article Information
REMOVING THE VEIL OF THE ANTI-DEFECTION LAW IN INDIA
Authors: MAZIA SIDDIQUI, ABUBAKAR SHAMSI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/13
- Issue 7
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