This article is written by Sidharth Sharma, a student of Jammu University pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com.

Introduction

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. We can take into account, the crisis of Madhya Pradesh Government in March, 2020, wherein Jyotiraditya Scindia along with 22 Member Legislative Assembly (“MLA’s”) gave resignation to the speaker of the assembly which in turn, resulted in a huge blow to the congress as they failed the floor test and accordingly BJP, which had the maximum number of seats came into the power and thereafter Shivraj Singh Chauhan was elected as the Chief Minister of Madhya Pradesh.

Recently the Deputy Chief Minister of Rajasthan (Sachin Pilot) and 18 other dissident leaders of the congress party were sent notices on the ground of defection. The notices were issued seeking their disqualification from the state assembly stating that all of them had defied the party whip by not attending 2 legislature meetings. The matter is pending adjudication in the High Court of Rajasthan. 

This article primarily focuses to draw out a better understanding into the prospects of defection laws, its developments through precedents and punitive sanctions which are attracted if in neglect of these laws. 

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”

What 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. 

The law of Anti Defection states that if a Member Parliament or Member Legislative Assembly:

1. Voluntarily gives up the membership of the party.
2. Votes or abstains for voting or defies any party whip. 
3. Joins any other party.

The member will be disqualified from the party and he will not hold the position of a nominated or an elected individual under the party. Thus, he will lose his position as an MP or an MLA.

Introduction of anti-defection framework in Indian Constitution

The bill for Anti- Defection was proposed by Rajiv Gandhi and it was approved unanimously by both the houses and came into effect on 18 March 1985, after receiving the assent of the president.

The Anti-Defection provision was added into the constitution by the way of Tenth schedule of the constitution by the 52nd Amendment in the constitution in 1985. These provisions provide for the disqualification of Member Parliaments under Article 102(2) and Member Legislative Assembly under Article 191(2). Under these articles of the constitution the legislators can be disqualified if they are disqualified under the Tenth schedule. 

History and need for anti-defection laws 

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.

A common term which is used when we read about defection is “Horse Trading” of the legislators which in simple terms means shifting of legislators from one party to another by monetary means. There can be several reasons for shifting of parties. 

All of these circumstances were impelling the government to create a statutory provision in the constitution which would create punitive sanctions for those who were found guilty of such conduct.

Exceptions

Disqualification under the purview of Anti-Defection shall not apply in case of split/merger of 1/3rd or more of the members of a party to another party. It shall also not apply in the event of a merger i.e. 1/3rd of the members or more merge with any other party. This exception where 1/3rd members was however revised by the way of 91st amendment in the constitution and after which it the provision of split was removed and now it requires 2/3rd members of a party can merge with another party. This amendment revised these rules as there were mass defections by legislators and this amendment brought change in the requirements from 1/3rd members of party to 2/3rd members and by removing the provision of split from the party. 

All of these circumstances were impelling the government to create a statutory provision in the constitution which would create punitive sanctions for those who were found guilty of such conduct.

Bar on jurisdiction of courts under the defection laws 

Para 7 of the Tenth Schedule puts a bar on the jurisdiction of the court in respect on disqualification of a member of the house.

This was against the basic structure doctrine which was developed by the Supreme Court in“Kesavananda Bharati case”. in which the basic features of the constitutional were established. The parliament cannot make any alterations in the basic structure doctrine and thus they have to be kept unimpaired. Out of these features, the feature of Judicial Review was being altered under the 10th schedule and much needed clarity was needed upon it. A liberal construction had to be adopted by the courts in a way so that, it would give review jurisdiction to the Supreme Court and High Courts in cases of disputes pertaining to review of decision of speaker. The power of review was imperative to lift the embargo imposed by the Tenth schedule which removed the review jurisdiction of the Courts. The power of review is expedient and without it the preciseness of the disqualification made by the decision of the speaker would have never been called into question on the account of inability to do so by the courts. 

The questions relating to bar on the jurisdiction of the courts was called into question in under “Kihoto Hollohon v Zachillu” (“Kihoto Hollohon”) case of 1992. It was opined by the Supreme Court that Para 7th of the Tenth schedule made a total exclusion of remedies available under Article 136, 226, and 227 of the Constitution and thus this was rectified by attracting sub clause 2 of Article 368. It was held that, the decision of the Chairman and the Speaker regarding disqualification of the members was to be considered as valid but subject to judicial reviews of the court. Thus, this case implicitly provided that decisions of the Speaker of the house were legal and binding but were questionable before the courts.

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.

Disqualification on the ground of voluntary giving up of membership

Para 2(1)(a) of the Anti-Defection law explains about the voluntary giving up of the membership by the members. 

This was cleared in the Ravi S Naik v Union of India (1994). In this case the Supreme Court gave a wider prospect to “resignation by voluntarily giving the membership”. The court observed that a person may voluntarily give up his membership of a political party even if he has not tendered resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs”.

The act of giving up membership can be expressed or implied this was observed in G. Viswanathan & Ors. v. Hon’ble Speaker Tamil Nadu Legislative Assembly & Ors in 1996.

It was opined that the act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such a member.”

Powers of court to review the decision of speaker 

The Speaker is not absolutely immune from judicial review, the immunity is provided to the speaker by Para 6 of the Tenth schedule. This was affirmed in Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors. (2007).

In this case, the speaker had not made a finding into the split and had accepted the split through a claim made by the members. The court further contended that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties.

Defiance of party whip

What is a Party Whip?

A whip is the instruction issued by political parties to vote according to the party line in a legislature.

In Shri Rajeev Ranjan Singh (Lalan) v Dr PP Koya JD(U)(2009)- In this case Dr Koya defied a party whip which required him to vote against the motion of confidence. He abstained from voting by remaining absent and the evidence of his illness was not considered sufficient for his absence at the house. Thus, there has to be a sufficient reason to satisfy the speaker about his absence from the house by a member when he is bound by the whip.

Burden of proof

When specific questions against a member for his willingness to leave the party, the burden of proof that there was no willingness to leave the party will always be against the legislator against whom charges are made. This point was observed in the Ravi S Naik judgement by the Supreme Court.

Limitation on scope of inquiry of the speaker

Shrimanth Balasahib Patil v Hon’ble Speaker of Karnataka legislative assembly (Karnataka legislative assembly case) 

In this case, 15 MLAs had resigned from the congress and Janata Dal Secular resigned from their respective seats. The government collapsed after this and the speaker disqualified the MLAs for a period till the expiry of the assembly which was in 2023.

Observations made by the hon’ble Supreme Court

The decision of disqualification by the speaker was upheld by the Supreme Court. However, it was not fully upheld by the Court and the parts of the judgment which required the time period for disqualification were set aside. The following observations were made by the court:

1. 1. “The Speaker’s scope of inquiry with respect to acceptance or rejection of a resignation tendered by a member of the legislature is limited to examine whether such a resignation was tendered voluntarily or genuinely. It is constitutionally impermissible for the Speaker to consider any extraneous factors while considering the resignation. The satisfaction of the Speaker is subject to judicial review”. 
   2. It was further held that the speaker does not have the power to describe the period for which the member is disqualified. The resignation does not take away the right of the speaker to disqualify.

• Horse trading and corrupt practices associated with defection and change of loyalty for lure of office or wrong reasons have not abated. Thereby, the   citizens are denied stable governments. In these circumstances, there   is a   need to strengthen certain aspects, so that such undemocratic practices are discouraged and checked.

Grounds for review of the decision of speaker 

In this case the Supreme Court laid down grounds for review of the decision of the speaker.

1. If it is in violation of constitutional mandate.
2. If it is made in a mala fide way.
3. If the decision of speaker is perverse.
4. If it is in non­compliance with rules of natural justice and perversity.

Lacunas in defection machinery 

The rivalry among the members in a party can arise due to many reasons; it can be due to the inner dissent against the opinions of senior leaders or the struggle for power and because of these reasons the elected members along with other elected members leave these parties to join the opposition. This can devastate the democratic spirit of our nation because a stable government is inherent for a democracy. The frequent government crisis can lead to distrust among the people and can cause a menace. 

The Anti Defection laws were added into the Constitution of India as a set of rules for the fair play among the elected members for a better Parliamentary Democracy. When a person gets nominated as a member by the party and contests election under the symbol of a party, he should owe his allegiance to that party but in the current scenario, many leaders leave their parties and join the opposition which in turn can lead to collapse of the government in that particular state which causes political instability. Thus, it is necessary for the legislators to act in adherence to the whip and the beliefs of the party.

Conclusion

The Anti-Defections laws should incorporate laws under which separate committees should be constituted for investigating into the cases of horse trading between the parties and where members of these parties are found guilty, punitive sanctions should be imposed on them. Further, an embargo should be imposed on them from contesting elections, so that these elements do not disrupt the active democracy of the country. 

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