This article is written by Astitva Kumar, an advocate. This article is the result of extensive research and analysis of the Constitution (Ninety-first Amendment) Act of 2003, in which the author also attempts to outline the defection laws in our country.
It has been published by Rachit Garg.
Table of Contents
The 91st Amendment to the Constitution came into force on July 7, 2004. As per the amendment, the size of ministerial councils at the Centre and in the states could not exceed 15% of the number of members of the Lok Sabha or state legislatures from then on.
Defection laws have become a major source of concern in recent years, because of leaders’ full disregard for the country’s defection guidelines. Given that defection has always been a contentious topic in India since the country’s independence.
Consider the example of the Madhya Pradesh Government’s crisis in March 2020, when Jyotiraditya Scindia and 22 members of the Legislative Assembly resigned, causing Congress to lose the floor test, and the BJP, which had the most seats came to power, and Shivraj Singh Chauhan was elected as the Chief Minister of Madhya Pradesh.
Detailed analysis of the Constitution (91st Amendment) Act, 2003
The Constitution (91st Amendment) Bill was proposed by a committee led by Pranab Mukherjee, who noted that the exception granted by allowing a split, stated in paragraph three of the Schedule, was being extensively abused, resulting in several divisions in numerous political parties. Furthermore, the committee found that the promise of personal benefit influenced defections and resulted in political horse-trading. The Lok Sabha passed the Bill on December 16, 2003, and similarly, the Rajya Sabha passed the Bill on December 18, 2003. On 1st January 2004, Presidential approval was gained, and the Constitution (91st Amendment) Act, 2003 was notified in the Indian Gazette on 2 January 2004.
Article 75 and Article 164 of the Indian Constitution were amended to include two additional clauses (1-A) and (1-B). The new Clause (1-A) limits the size of the centre and state ministries. As per new Clause (1-A), the number of total ministers in the Central Council including the Prime Minister, shall not exceed 15% of the Lok Sabha’s total members.
Article 75 Clause (1-B) provides that a member of either House of Parliament belonging to any party who is disqualified for membership in that House due to defection under paragraph of the Tenth Schedule is also disqualified for appointment as a minister under Clause (1) of Articles 75 and 164 of the Constitution until he is elected again.
The amendment deleted paragraph 3 of the Tenth Schedule, which provided that if one-third of a political party defected, they would not be disqualified under the defection statute.
The above amendment also added a new Article 361-B to Part XIX of the Constitution that stated: “A member who has been disqualified to be a member on the ground of defection under paragraph 2 of the Tenth Schedule shall be disqualified to hold any remunerative posts (Chairman of incorporated bodies) during the timespan of his disqualification.”
The term “remunerative political post” refers to any position under the Central or State Government for which the payor remuneration is paid from the public revenue of the Government of India or the Government of any State. It also covers anybody, whether incorporated or not, that is completely or substantially owned by the Government of India or a State Government that pays the salary or remuneration for such post.
Key aspects of the 91st Amendment Act
To limit the number of the Council of Ministers, prohibit defectors from holding public office, and tighten the anti-defection statute, the 91st Amendment included the following provisions:
- The overall number of ministers in the Central Council of Ministers, including the Prime Minister, should not exceed 15% of the Lok Sabha’s total strength.
- Any member of either House of Parliament who is disqualified from serving as a minister due to defection is likewise barred from serving as a minister.
- The total number of ministers in a State Council, including the Chief Minister, cannot exceed 15% of the legislative Assembly’s total strength. The total number of ministers of a state, including the Chief Minister, shall not be less than 12.
- A member of either House of a state legislature who is disqualified from serving as a minister due to defection is likewise prohibited from serving as a minister.
- A member of either House of Parliament or the House of a State Legislature from any political party who is disqualified for defection from any political party is also barred from holding any remunerative political office.
- Any office under the Central Government or a state government where the salary or remuneration for such office is paid out of the concerned government’s public revenue;
- The exemption from the disqualification clause in the Tenth Schedule (Anti-Defection Act) has been abolished. This means that the divides no longer shield the defectors.
History of anti-defection law
The word “defection” is derived from the Latin word “Defectio.” Defection is defined as quitting or changing one’s loyalties to a political party in which one was formerly a member. The defection of elected officials from one political party to another political party is prevalent in almost all democratic regimes across the world. India is the world’s largest democracy, is no exception to the problem of defection
Defection has a longstanding history in India, dating back to the time of pre-independence, when Shyam Lal Nehru, a member of the national legislature, shifted allegiances from Congress to British India. Another notable instance came in the year 1937 when a member of the Uttar Pradesh Legislative Assembly defected from the Muslim League to join the Congress.
Aaya Ram Gaya Ram (Ram has arrived, Ram has gone) is a popular Indian political term that refers to political horse-trading, usually turn into coat, and floor crossing. Gaya Lal, a Member of the Legislative Assembly from Haryana’s Pataudi Vidhan Sabha Constituency, coined the term in 1967. He ran as an independent candidate and won, then joined the Indian National Congress (INC), changing his political allegiance three times in one day. Even after this occurrence, Gaya Lal, a regular floor-crosser, switched parties and stood for office under several banners, including the Akhil Bhartiya Arya Sabha in 1972, the Bharatiya Lok Dal under Chaudhary Charan Singh in 1974, and became the inspiration for the name Aaya Ram Gaya Ram. Rajiv Gandhi proposed the Anti-Defection Bill, which was passed overwhelmingly by both houses and went into force on March 18, 1985, after getting the president’s assent.
By the 52nd Amendment to the constitution in 1985, the Anti-Defection clause was inserted into the Constitution through the Tenth Schedule. The law’s principal goals were to combat political corruption, which was viewed as a vital first step in combating other types of corruption in the country.
According to former Central Vigilance Commissioner U. C. Aggarwal, the political arena must be free of corruption in order to motivate others at lower levels to do the same, to strengthen democracy by bringing stability to politics, ensuring that the Government’s legislative programs are not jeopardized by a defecting parliamentarian, and to make members of parliaments more responsible and loyal to the parties with which they were aligned at the time of their election. Many people feel that their party affiliation is crucial to their electoral success. Following its enactment, certain politicians and political parties took advantage of the law’s flaws. There was evidence that the legislation failed to achieve its goal of preventing political defection and, in fact, legitimized widespread defection by exempting activities that it labelled “splits” from its prohibitions. The Speaker of the Lok Sabha refused to allow the defecting members of the Janata Dal’s breakaway section to explain their position. Another component of the statute that has been criticized is the Speaker’s involvement in judging instances involving political defections. When it came to awarding official status to various factions of political parties, the Speakers of several houses were questioned about their impartiality. Due to his or her political past with the party from which he or she was elected as Speaker, questions have been made concerning the Speaker’s nonpartisan duty. The Janata Dal (S) was accused in 1991 of undermining the anti-defection law’s spirit by maintaining defecting members in cabinet positions. Later, all of the opposition members of parliament presented an affidavit to India’s President, pleading with him to fire the ministers. Finally, in response to efforts to restore the Speaker’s and House’s dignity, the Prime Minister relieved the defecting members of their ministerial jobs. Soon after, the Chavan committee proposed that a member who switches parties for monetary gain or other types of greed, such as a promise of an executive post, be dismissed from parliament and prevented from contesting elections for a certain period of time. Member Parliaments and Member Legislative Assembly are disqualified under Articles 102(2) and 191 of these rules. If legislators are disqualified under the Tenth Schedule, they may also be disqualified under these provisions of the Constitution.
Significance of anti-defection law
- It improves the stability of Parliament and state legislatures by preventing legislators from switching parties.
- It reduces political corruption, which is a critical first step in combating the country’s other forms of corruption.
- It strengthens democracy by establishing political stability and guaranteeing that the government’s legislative programs are not harmed by a defecting member.
- It makes members of parliament more accountable and faithful to the parties with which they were aligned at the time of their election, as it is a belief that many believe that party allegiance plays a significant role in their election success.
Concerns regarding anti-defection law
- The Anti-defection statute has failed to prevent defections in the past. This is due to the fact that it does not distinguish between disagreement and defection. For the sake of party loyalty, it limits the legislator’s right to dissent and freedom of conscience.
- The distinction drawn between individual and collective defection is completely irrational. Even the distinction it creates between independent and nominated members is illogical. If the former joins a political party, he is disqualified, whereas the latter is permitted to do so.
- It encourages horse-trading of legislators, which clearly contradicts the values of a democratic system.
The way forward
- To eliminate political pressure and to protect the political system’s democratic values, an independent body for deciding defection cases is required.
- The Supreme Court has proposed that Parliament should establish an independent panel, led by a retired judge from the higher judiciary, to decide defection cases quickly and impartially within a predetermined time frame.
- Since the majority of defections are caused by dissatisfaction among political party members, therefore actions must be taken to strengthen internal party democracy.
- Reforms such as bringing political parties under RTI, improving intra-party democracy, are required.
- The Chairman/Speaker of the House, as the final authority in cases of defection, does have an influence on the doctrine of separation of powers. As a result, delegating this authority to the higher judiciary or the Election Commission may reduce the possibility of defection.
Anti-defection law under 10th Schedule of the Indian Constitution
The Statement of Objects and Reasons of the 52nd Amendment to the Constitution outlined the reasons for the addition of this Schedule as follows, “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the address by the President to Parliament that the government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance.”
The (52 Amendment) Act 1985 added the Tenth Schedule to the Constitution, and the reasons behind the amendment were to prevent political defections motivated by the lure of office or other similar considerations that potentially harm the fundamentals of our democracy. The proposed solution was to bar any Member of Parliament or the State Legislature who was proven to have defected from continuing to serve in the House. The grounds for disqualification are specified under Paragraph 2 of the Tenth Schedule.
Overview of the 10th Schedule
This short piece of legislation has eight paragraphs: the first lays out definitions, the second lays out disqualifications, the third (now deleted by the 2003 amendment to the constitution) lays out splits within the party, the fourth layout a disqualification that does not apply in the case of mergers, the fifth lays out certain exemptions, the sixth and seventh lays out the person who will resolve disputes, and the eighth lays out the person who will decide disputes and bars courts from hearing.
Almost all of these provisions have been brought before the courts of the land for adjudication and interpretation. Paragraph 2, which sets forth a member’s disqualifications, is perhaps the one paragraph that has been analysed by the courts the most. The courts have adopted strong stances against acts of defection, keeping the uncertainty of Indian politics in mind.
Power of review to Speaker under Tenth Schedule
The Supreme Court held in Dr. Kashinath G Jalmi and others v. the Speaker and others (1993) that the Speaker/ Chairman has no authority of review under the Tenth Schedule and that the Speaker order is finally subject to judicial review, as held in Kihoto Hollohan.
Lacunas in defection machinery
Rivalry among members of a party can occur for a variety of reasons, including internal disagreement against senior leaders’ beliefs or a fight for dominance, and as a result, elected members and other elected members leave these parties to join the opposition. This has the potential to undermine our nation’s democratic character because democracy requires a stable administration. Frequent political crises can breed distrust among the public and pose a threat.
The defection mechanism in India has a number of shortcomings, especially with the recent example of the Madhya Pradesh government crisis, in which Jyotiraditya Scindia and 22 MLAs left the party, leading to the fall of the Kamal Nath government, and the Kerala legislative assembly case in 2019.
In order to promote Parliamentary Democracy, anti-defection rules were established in the Indian Constitution as a set of guidelines for elected officials to follow. When a person is nominated as a member of a political party and stands for office using that party’s symbol, he owes that party his allegiance. However, many leaders are leaving their parties to join the opposition, which can lead to the collapse of the government in that state, causing political instability. As a result, lawmakers must behave in accordance with the whip and the values of the party.
Suggested reforms before 91st Amendment
Dinesh Goswami Committee (1990) on electoral reforms
- This Committee proposed the present disqualification provisions.
- The President/Governor was suggested as the determining authority (acting on the opinion of the Election Commissioner).
Haleem Committee (1998)
- It requested a full clarification of the terms “voluntarily giving up political party membership” and “political party.”
- Expelled members will face certain limitations, such as the future prohibition on holding government posts.
170th Law Commission Report (1999)
- It was suggested that pre-election electoral fronts be treated as political parties under the anti-defection statute.
- The use of whips should be limited to situations where the government is threatened.
- It also suggested that the rule exempting splits and mergers from disqualification be removed.
Constitution Review Commission (2002)
- It urged that the defectors be barred from entering the public office or any other political position for the remainder of their mandates.
- A vote cast by a defector to overthrow a government shall be regarded as void.
Judicial pronouncements pertaining to Anti-Defection Law
In Ravi S Naik v. Union of India (1994)
The Supreme Court in this decision granted “resignation by willingly giving up membership” a broader meaning. The Court stated that a person can voluntarily leave a political party even though he has not formally resigned from such party. Even in the absence of a formal resignation from membership, it is possible to conclude from a member’s actions that he has willingly resigned from the political party to which he belongs.”
In G. Viswanathan and Others v. Hon’ble Speaker Tamil Nadu Legislative Assembly and Others (1996)
It was suggested that the act of voluntarily resigning from a political party might be either stated or inferred. When a person who has been kicked out or expelled from the political party that nominated him as a candidate and elected him joins another (new) party, he is willingly giving up his membership in the political party that nominated him for election as such a member.”
Rajendra Singh Rana and Others v. Swami Prasad Maurya and Others (2007)
The speaker in this case had not reached a conclusion on the divide and had accepted it based on a claim made by the members. The Court went on to say that disregarding a petition for disqualification is a violation of constitutional responsibilities, not just an irregularity.
Shri Rajeev Ranjan Singh (Lalan) v. Dr PP Koya JD(U)(2009)
Dr. Koya disregarded a party whip who ordered him to vote against the motion of confidence in this instance. He did not vote because he was absent, and the proof of his sickness was not judged adequate to justify his absence. When a member is bound by the whip, there must be a valid explanation to satisfy the speaker regarding his absence from the house.
Shrimanth Balasahib Patil v. Hon’ble Speaker of Karnataka Legislative Assembly (2019)
In this case, 15 MLAs and members of the Janata Dal Secular resigned from their positions in the legislature. The government was dissolved as a result, and the speaker disqualified the MLAs for a period of time until the assembly’s expiration.
In Kihoto Hollohan v. Zachillhu and others (1992)
The Supreme Court ruled that judicial review could not be obtained prior to the Speaker/Chairman making a decision. Interference would also be prohibited during an interlocutory stage of the proceedings presided over by the Speaker/Chairman. Prior to this case, the Speaker/decision Chairman was regarded as final and not subject to judicial review. The Supreme Court ruled that this clause was unlawful.
To summarise, the 91st Constitutional Amendment Act, 2003 was enacted in the Indian Constitution in order to limit the massive budgets made by states as a result of jumbo cabinets. Despite the fact that the law has had some success but due to some of its flaws, it has not been able to attain the best possible results.
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