This article is written by Aswathy Vinod, a student of the LawSikho Diploma in M&A Institutional Finance & Investment laws and Adarsh Vasudeva, a student of the LawSikho  course in Advanced Contract Drafting & Advanced Civil Litigation. This article also contains inputs from the webinar conducted by LawSikho on 15th May 2020 where Senior Counsel Adv. Abad Ponda spoke on the same topic.

Introduction

This article looks into and analyses the Anti-defection laws in India, Quia timet action and the role of the Speaker in anti-defection proceedings. It discusses the development of the laws, role given to the Speaker in implementation of these laws and his powers, lacunae in the laws and the power of the judiciary to intervene in disqualification proceedings. It also covers important case laws and suggests what could be the future of anti-defection laws for India.

Anti Defection Law and India

A RAM whose quote “AAYA RAM GAYA RAM” founded the base of Anti-Defection Law in India. Here we are talking about the Haryana MLA Gaya Lal who changed his party thrice within the same day in 1967 and to stop “AANA AND JANA” of such politicians, Anti-Defection Law came into force in 1985. Anti-Defection Law contains the provisions for disqualifying legislators on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. Articles 102 (2) and 191 (2) of the Constitution deals with anti-defection. The objective of this law is to control the horse-trading of legislators and to bring stability to political parties. It checks the movement of MPs/MLAs from one political party to another after elections. This law applies to both Parliament and state assemblies as well.

A Brief Timeline

• Pre-Independence: Shyam Lal Nehru, a member of the Central Legislature was elected on the Congress ticket but joined British Party during the Montford Reforms. Further, he was expelled by Pandit Moti Lal Nehru who was the leader of the Assembly party. 
• Post-Independence (1953): PSP leader Prakasam joined Congress after defecting from PSP and aided the Congress in forming the government.
• 1957-1967: 97 (Ninety-Seven) members defected from the Congress and 419 defected to it.
• 1967-68: In a span of one year only, 175 Members defected from Congress party and 139 members defected to congress. In one year from the election of 1967, five hundred defections took place out of which 118 members became Ministers of Minister of States. 

Note: All these defections were taking place with the strong motives of monetary gain and for grabbing power and resulting in change in parties three or four times in a day. These practices were black spots on traditions of democracy. 

• August 11, 1967: P. Venkatasubbaiah (a congress member) who was the Secretary of Congress party in Parliament, moved a non-official resolution seeking appointment of a Committee on Defection. As a result, a committee was formed by the Houses consisting 46 of the Union Home Minister as Chairman, the Union Law Minister, and the Union Minister for Parliamentary Affairs, the representatives of eight political parties and three independent groups recognised by the Speaker in the Lok Sabha.
• 21 March, 1968: A committee was appointed by the government as the Committee on Defections under the Chairmanship of the then Union Home Minister, Shri Y.B. Chavan to study the problems of political defections and suggest remedial measures in this connection.
• Constitution (Thirty-Second Amendment) Bill: Introduced in the Lok Sabha on 16th May, 1973, this bill lapsed before the dissolution of Lok Sabha on 18th January,1977 as the bill did not have recommendations of the Committee and proposals which were not considered by the committee and members were included in the bill.
• Constitution (Forty-Eight Amendment) Bill: Introduced in the Lok Sabha on 28th August, 1978. ‘Tenth Schedule’ was also proposed to be inserted into the Constitution for making detailed provisions as to disqualification on the grounds of defection. But strong opposition by the members of ruling as well as the opposition parties forced the bill to be withdrawn.
• Year 1982: An awful picture was presented during the case of Mian Bashir Ahmad vs. State of Jammu and Kashmir in 1981. There were 41 defections in 1977, 57 defections in 1978, 69 in 1979, and 74 in 1980.
• Constitution (Fifty-Second Amendment) Act: Introduced in the Lok Sabha on 24th January, 1985. Finally, after observing the regretful picture of defections, Lok Sabha passed the bill on 30th January,1985 and Rajya Sabha passed it on 31st January, 1985. It received the President’s assent on 15th February, 1985. The Act came into force with effect from 1st March, 1985 after the issue of the necessary notification in the Official Gazette. 

The Amendment amended Articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and the State Legislatures and added a new Schedule (Tenth Schedule) to the Constitution setting out certain provisions as to disqualification on the grounds of defection.

• The Constitution (Ninety-First Amendment) Act, 2003: Various committees like Committee on Electoral Reforms (Dinesh Goswami Committee) in the Law Commission of India’s 170th Report on “Reform of Electoral Laws” (1999) and the report of National Commission to Review the Working of the Constitution (NCRWC) recommended omission of paragraph 3 of the Tenth Schedule to the Constitution of India pertaining to the exemption from disqualification in case of splits. The Constitution (Ninety-First Amendment) Act, 2003 accepted and implemented many of these recommendations of the Commission even if only partially. Thus, a new Article 361 B was inserted into the Constitution of India and Articles 75 and 164 were amended.

Conditions of disqualification

The final decision on the question as to disqualification on the grounds of defection is decided by the Chairman or the Speaker of such House, and his decision is final.

If a legislator voluntarily gives up the membership of his party then he will be subjected to disqualification. It is not the same as resigning as even without resigning, a legislator can be disqualified based on his conduct which leads the Speaker/Chairman of the concerned House to draw a reasonable inference that the member has voluntarily given up the membership of his party.

Famous Instance of Disqualification based on Conduct dated the 4th of December, 2017

The decision of Chairman, Rajya Sabha on the petition filed by Shri Ram Prasad Singh against Shri Sharad Yadav-Two JD(U) MPs was disqualified by the Chairman as they deemed to have voluntarily given up their membership by their conduct of getting involved in anti-party activities like criticizing the party on public forums on multiple occasions, and attending rallies organised by their opposition parties in Bihar. When a legislator votes against the directives of the party leadership and his action is not condoned by his party, he can be disqualified.

Exceptions to Disqualification

When at least 2/3rd of total legislators of a party are in favour of a merger with another political party then it can be done without the risk of disqualification. Under this exception, neither the members who decide to merge nor the ones who decide to stay with their original party will face disqualification. If a member becomes Presiding Officer of the house and voluntarily gives up the membership of his party then he won’t face disqualification if he wants to join the party back.

Role of Speaker in Anti-Defection Law

The ultimate evaluator in the case of disqualification under the Tenth Schedule is the Speaker of the House. The Speaker/Presiding Officer is considered as the guardian of the process of democratic rules in the Parliament and the State Assemblies. The place of speaker is very high as he stands next to the President, the Vice-President and the Prime Minister. The Speaker can disqualify a member-only if a claim of disqualification is made before him under Para 2 of the Tenth Schedule. Under the light of Articles 102 and 191 of the Constitution and the Tenth Schedule, the Speaker’s exercise is of judicial nature as he can take a decision only after a member files a disqualification petition.

Judicial Review of Disqualification Proceedings

Intervention of judicial scrutiny is not allowed during the pendency of the disqualification case before the Speaker/Presiding Officer and the Courts can intervene only after the final decision is made by the Speaker/Presiding Officer in the disqualification petition. The Speaker is the head of a legislature and as he acts like a constitutional authority, his decisions are amenable to the jurisdiction of courts but in the cases wherein the Speaker acts as a quasi-judicial authority then there is an obstruction for judicial review and the Speaker cannot claim any immunity.

In the case of Kihoto Hollohan vs Zachillhu And Others 1992 SCR (1) 68, the Supreme Court declared that while deciding a question under the Tenth Schedule:

“The Speakers, Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.”

Thus, the order passed by the Speaker can come under judicial review in the cases of constitutional mandates, mala fides, non-compliance with rules of natural justice, colourable exercise of power based on extraneous and irrelevant considerations and lack of evidence.

Immunity and misuse of Immunity

The proceedings and conduct of the Speaker are immuned by Articles 122 and 212 of the Indian Constitution. Article 212 and 122 states that courts are not to inquire into proceedings of the Parliament. (The proceedings inside a House are the exclusive preserve of that House only and are immune from judicial interference or review. The Legislature and the Judiciary are separate and supreme in their respective spheres.) Adversity of this is seen where either the Speaker has kept the disqualification petitions for years or gave decisions in a jiffy depending on which course of action benefits his party. This defeats the main objective of the act and the Tenth Schedule of the Indian constitution. In most of the cases where a petition is filed against the decisions taken by the Speaker, the immunity of Montesquieu-en principle of ‘Separation of Powers’ that threads through our Constitution is used by the Speaker. 

Once the Speaker makes his decision, only then does it become amenable to judicial review under Article 226/227 by the High Courts, as held in the Kihoto case(supra). When the Speaker fails to decide upon an application for disqualification made before him, it will not amount to mere procedural illegality but it amounts to jurisdictional illegality and goes against the constitutional principle of adjudication in the scheme of Schedule X read with Articles 102 and 191 of the Constitution.

The Merits and Demerits

The object of the Constitution (Fifty-Second Amendment) Act, 1985 is defined as “to curb the evil of political defections motivated by the lure of office or other similar considerations which endanger the foundations of our democracy” and the remedy proposed is in the form of disqualification of Members of the House who commit political defection. However, the laws contained in the Tenth Schedule come with their own merits and demerits. On the affirmative, having such a system in place helps to ensure stability in the government and holds the elected representatives of the people accountable by punishing them for changing their political parties, in turn undoing what they stood for, and the party that the people have voted for. It assures that a candidate elected with the support of a particular political party remains loyal to and abides by the manifesto and policies of that party, all of which provides stability to a democratic government. However, it is also argued that disqualification on the grounds of defection tends to restrict the Members’ freedom of speech and expression. It prevents them from having the liberty to leave their party in a case of dissent with the party’s stand or policies. Such restriction may lead to elected members having to remain yes-men to the decision-makers in the party. 

What is Quia Timet Action?

A Quia Timet action has been defined in Black’s law dictionary as “Quia Timet: because he fears or apprehends.” It is essentially an injunction to prevent wrongful acts which are imminent but have not yet commenced. The leading judgement in Fletcher v. Bealey (1884) 28 Ch. D. 688 lays down ingredients that warrants for quia timet action. Firstly, there must be proof of imminent danger and there must also be proof that the apprehended damage will be substantial. Secondly, it must also be proved that it will result in irreparable damage and when the damage comes, the plaintiff may not be able to protect himself if quia timet action is denied to him. This statement has been followed by the English Courts as recently as 2012 in London Borough of Islington v. Margaret Elliott. The decision in Fletcher was also referred to by the Hon’ble Supreme Court in Kuldip Singh v. Subhash Chander Jain, 2000.

As in the context of anti-defection laws, a quia timet action would be an action that prevents the Speaker from deciding on the ground of imminent apprehended danger. This is permissible only in cases of interlocutory disqualifications or suspensions which may have grave, irreversible repercussions and consequences. However, when a quia timet action is not allowed the consequences are such that the disqualification petitions are kept pending in most of the cases as disqualification of the MLAs would bring down both the total strength of the House, as well as the incumbent government headed by the Chief Minister and a minority government, is allowed to continue in power because the Speaker refused to act under the Tenth Schedule and was claiming immunity from any judicial order in view of Article 212. 

Case Laws throughout the years

1992-Kihoto Hollohan vs Zachillhu & Others 1992 SCR (1) 68 

• In this case, the very adding of the Tenth Schedule to the Constitution was challenged as being constitutionally invalid. Although the majority judgement was that the schedule was constitutionally valid and that it does not violate any rights, the dissenting judgement contained very important observations.
• They held that the Speaker being an authority within the House whose tenure was dependent on the will of the majority of the House, there likelihood of suspicion of bias and lack of impartiality cannot be ruled out. It was pointed out that the question of disqualification of a member was like adjudication, and hence required the adherence of the Rules of law in the adjudication of disputes of which Rule against bias is an important postulate. The issue of long-pending disqualification petitions before the Speakers can also be traced to this fundamental flaw in the powers vested on the Speaker as an adjudicator.
• The Hon’ble Court also laid down that Courts cannot exercise judicial review until a decision has been made by the Speaker on the disqualification petition before him. No quia timet actions will be permissible at the proceedings stage either, with the exception being in cases of interlocutory disqualifications or suspensions which may have grave and irreversible repercussions and consequences. 

2015- S.A. Sampath Kumar v. Kale Yadaiah and Ors. 

• The matter of judicial intervention in disqualification proceedings had yet again come up in this case, wherein the issue was whether a High Court exercising powers under Article 226 can direct a Speaker of a legislative assembly to decide a disqualification petition within a certain period of time and whether such a direction would fall foul of the quia timet action doctrine in the aforementioned Kihoto Hollohan’s case. If judicial review is permissible only once the order is passed by the Speaker, what would be the course of remedy when the proceedings itself is frustrated?
• The Court taking into account the gravity of the issue decided to lay down the matter before the Chief Justice of India to constitute a five Judge bench to adjudicate on the same. 

2019 Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly

• This is a relatively recent judgement wherein the petitioners filed a case challenging the order of the Speaker disqualifying all of the petitioners on the grounds of defection and it also sought to restrain them from contesting in elections till the end of that Assembly term. 
• The Hon’ble Supreme Court upheld the order of the Speaker to the extent of the disqualification but set aside the part that said that the disqualified members could not re-contest in elections, and it held that the Speaker is not empowered to disqualify any member till the end of the term. 
• The Court also held that although both resignation and defection end in vacancy of seat of the Member, the consequences that follow are varied to the effect that mere submission of resignation by a Member during the pendency of disqualification proceedings against him will not affect or change the course of proceedings.
• The Hon’ble Court also took to shed light on the fact that there indeed is a growing trend of the Speaker not acting neutral which goes against the constitutional duty bestowed upon him. It also said that the corrupt practices associated with defection deny the citizens of a stable government, and hence there is a need to consider strengthening certain aspects of the concerned laws so that such undemocratic practices are kept in check.

2020- Keisham Meghachandra Singh v. The Hon’ble Speaker Manipur Legislative Assembly & Ors. (Manipur Legislative Assembly case)

• We finally come to the latest judgement given by a three-Judge bench of the Supreme Court headed by Justice F.Nariman on 21st January 2020. The facts of the case were as follows- petitions for disqualification on grounds of defection of about 13 MLAs were pending before the Speaker of the Manipur Legislative Assembly and no action was taken by him on and the matter was kept pending. Owing to this, the petitioner filed a writ petition with the High Court of Manipur in which the petitioner prayed that the High Court issue an order directing the Speaker to decide the disqualification petitions within a reasonable time. 
• On the issue of whether Courts have the power to issue such an order was in itself pending before a five-judge constitution bench of the Supreme Court and hence the High Court concluded that it could not pass any order on the matter, due to which the petitioner appealed to the Supreme Court. 
• The Hon’ble Court held that what was meant to be outside the purview of judicial review as per Kihoto judgement are only quia timet actions in the sense of injunctions to prevent the Speaker from making a decision on the ground of irreparable consequences meaning that if the Speaker was to decide that the Member be disqualified, and as a consequence, if he would incur the penalty of forfeiting his membership of the House for a long period, the Court may intervene as such a result is undesirable. This does not, therefore, in any way prohibit judicial review which is essentially in aid of the Speaker arriving at a prompt decision as to disqualification. The Speaker, acting as a Tribunal, was bound to decide such petitions within a reasonable period. In furtherance of the same, the Hon’ble Court said that a petition of disqualification filed with the Speaker must be decided within a maximum of three months, except for the existence of exceptional circumstances that hold good reason.
• The Court while deciding the matter, also stated that the fears of the minority judgement in the Kihoto Hollohan’s case (as mentioned above) had actually come home to roost to the effect that the impartial and unbiased position required of the Speaker was decreasingly so. It held that the question of whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority while he de facto continues to belong to a particular political party needs to be reconsidered, and the Hon’ble Court suggested that the Parliament consider amending the Constitution to substitute the Speaker as the arbiter with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, to decide such disputes more swiftly and impartially. This, they emphasised, would give real teeth to the provisions contained in the Tenth Schedule and its vital role in the bonafide functioning of our democracy. 

The Road Ahead

Every path has its limitations, but we have to keep moving on that path while eradicating those limitations. In the path of anti-defection law, there is a grave limitation for political representatives when a legislator cannot vote in accordance with the needs of his/her constituency in case it goes against the vote of the party, as this may lead to the consequence of disqualification. This limitation needs to be addressed as it violates the legislator’s right to vote freely and further a decision taken by the party might hamper the interest of a particular constituency. In our views, the law should be amended in a manner that the legislator is given adequate opportunity to present his case or justify his dissent if his choice of the vote is not in accordance with the party’s, and not simply be disqualified.

The latest technique of disarming the party in rule involves an act of elected members isolating themselves when meanwhile the incumbent government in the home state is forced to seek a vote of confidence on the floor of the House. In the absence of these rebel MLAs, the result is a foregone conclusion, leading to the fall of the incumbent government, as seen in July 2019 in the Karnataka Assembly and in March 2020 in the Madhya Pradesh legislative assembly. Are such resignations “voluntary and genuine” in terms of Article 190? Do the Rule of Law, purity of the electoral process and the legislative intent behind the Tenth Schedule permit such ill-motivated acts? Our suggestion would be that if not an independent tribunal, the possibility of setting up a parliamentary committee consisting of the Speaker and representatives of both ruling and opposition parties respectively who shall then together decide the disqualification petition before them. is not set up It is now up to the Parliament to decide.

Conclusion

Despite attracting scrutiny time and again, the reality remains that the Tenth Schedule of the Constitution requires a major overhaul and urgently so. It should be amended to the effect that it does not restrain a dissenting legislator’s freedom, whilst being effective in bringing about the desired stability to the system. Although having the Speaker be bound by an outer time limit to act on disqualification petitions may be effective in pertinent cases, the root cause of the problem lies in the very role given to the Speaker as the adjudicator in the matter at hand. The solution may lie in moving the adjudicatory process from within the House to outside the House, as recommended by the Dinesh Goswami Committee on electoral reforms in their report in 1990.

The Committee had opined that the power to disqualify must be taken away from the Speaker or the Chairman and must instead be vested in the President or the Governor. Article 70 of the Bangladesh Constitution says that the dispute with respect to disqualification shall be referred to the Election Commission by the Speaker. This is also one of the solutions to ensure fair and timely procedure. An independent permanent Tribunal headed by a retired Judge set up for this purpose as suggested by the Honourable Supreme Court in the Manipur Legislative Assembly case (supra) is yet another way out. The latest technique of disarming the party in rule involves an act of elected members isolating themselves when meanwhile the incumbent government in the home state is forced to seek a vote of confidence on the floor of the House. In the absence of these rebel MLAs, the result is a foregone conclusion, leading to the fall of the incumbent government, as seen in July 2019 in the Karnataka Assembly and in March 2020 in the Madhya Pradesh legislative assembly. Are such resignations “voluntary and genuine” in terms of Article 190? Does the Rule of Law, purity of the electoral process and the legislative intent behind the Tenth Schedule permit such ill-motivated acts? 

Suggestions

Every path has its limitations, but we have to keep moving on the path while eradicating those limitations. In the path of anti-defection law, there indeed are many. However, we have a couple of solutions to suggest. 

• Firstly, it is to be noted that it handicaps a legislator when he cannot vote in accordance with the needs of his/her constituency when such need or preference is contradictory to the decision or the vote of his party, as this may lead to the consequence of disqualification. In our views, the law should be amended in a manner that the legislator is given adequate opportunity to present his case or justify his dissent in the event that his choice of vote is not in accordance with that of the party’s, and not simply be subject to disqualification. 
• The recommendations from aforementioned case laws and committees do present solutions to address issues related to the adjudicatory mechanism followed for disqualification proceedings. If not the implementation of the same in its entirety, the possibility of setting up a parliamentary committee consisting of the Speaker, head of the ruling party, head of the largest opposition party, and head of the party to which the Member accused of defection belongs to could be set up in order to decide the disqualification petition. In case the committee is not able to arrive at a definite conclusion, the final decision shall lie with the judiciary. 

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: