This article is written by Sidharth Sharma, a student of Jammu University pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com.
In recent times the defection laws have been a hot topic due to the complete violation of the defection rules in the country by the leaders. The practice of defection is not a recent one but has always been a topic of debate in India since it gained its independence. Anti Defection Laws basically provide grounds under which a member legislative member or a member parliament can lose his privileges as an elected representative of a party and hence can be disqualified from the party. The reasons can be due to joining any other party or if a party member votes or abstains from voting against the direction of the party. These grounds are provided in the tenth schedule of the constitution. Several amendments have been made to develop and structure proper machinery to implement the anti-defection laws and to give proper rights to the parties for a healthy competition among them and without giving a larger party with a comparatively larger base an edge over the smaller parties.
We can take into account the crisis in Madhya Pradesh Government in March 2020 which sets a clear example of toppling up of one government by another through means which are against the fair play in a representative democracy. In this case, Jyotiraditya Scindia along with 22 of his MLAs gave resignation to the speaker of the Assembly, thus they were disqualified but this gave a huge impact to the Congress Government under the leadership of Kamal Nath as it failed the floor test and accordingly BJP which had the maximum number of seats came into power and Shivraj Singh Chauhan was elected as the Chief Minister.
Recently the Deputy Chief Minister of Rajasthan (Sachin Pilot) along with 18 other dissident Congress leaders has been sent disqualification notices on the ground of defection. The notice was issued to Pilot stating that he had defied the party whip by not attending 2 legislative party meetings. The matter is pending adjudication in the High Court of Rajasthan. This article primarily focuses to draw out a better understanding of the defection laws, its developments through precedents and Sanctions which are attracted if in neglect of these laws.
What is meant by defection?
According to Oxford, the dictionary has described Defection as the act of leaving your own country or political party and joining an opposite one.
Who is a defector?
The word defector was defined as a person: is an elected member of the legislature who had been allotted the reserved symbol of any political party 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, 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 the law of Anti-Defection?
The law of Anti Defection states that if a member parliament of member legislative assembly:
- Voluntarily gives up the membership of the party;
- Votes or abstains for voting or defies any party whip;
- Joins any other party.
In these cases, 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.
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 were however revised by the way of the 91st amendment in the constitution and after which the provision of the 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 a change in the requirements from 1/3rd members of the party to 2/3rd members and by removing the provision of a split from the party.
Historical background of Anti-defection laws
There is a very well known phrase of “Aaya Ram Gaya Ram” and it 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 in which it was stated that from 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. The reasons can be several for eg- to break the majority of a government or by inducing the ministers to leave their party for a better position in the opposition 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.
Anti-Defection provisions in the 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 was added into the constitution by the way of the 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 10th schedule.
Bar on jurisdiction of courts under the defection laws
Under the 7th Para of the Tenth Schedule, it is clearly stated that there is a bar on the jurisdiction of the court in respect of any matter of disqualification relating to any member of the house.
This was against the basic structure doctrine as envisaged by the “Kesavananda Bharati case” in which the basic features of the constitutional were established and the parliament cannot make any alterations in them thus keeping them unimpaired. Out of these features, the feature of Judicial Review was being altered under the Tenth schedule and some clarity was needed upon this by the court as it could not be constructed strictly and liberal construction was required in a way so that it would have powers of review to the Supreme Courts and the High Courts in case of disputes. Otherwise, it would have led to distrust in the legal system. The power of review is expedient and without it, the preciseness of the disqualification made by the Chairman of the speaker would have never been called into question on the account of inability.
Thus this connotation of the provision was done in “Kihoto Hollohan v Zachillhu” case of 1992. It was opined by the Supreme Court that Para 7th of the Tenth schedule was making total exclusion of remedies available from the Supreme Court under Article 136 of the constitution and from the High Court under Article 226 and 227 of the constitution thus these provisions were to be 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 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.
This case is considered as a landmark judgement in the spectrum of defection laws where the Supreme Court had construed the provisions under the Tenth Schedule and held it to be fully constitutional.
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 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 this Kihoto Hollohan case that the tenth schedule does not subvert the rights of elected members of parliament and the legislature 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 voluntarily giving up membership
Para 2(1)(a) of the Anti Defection law explains 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 though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership 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 the court
The speaker is not absolutely immune from judicial review, the immunity 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 by merely a claim 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 a party whip
What is a Party Whip?
A whip is an 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 requiring him to vote against the motion of confidence for the government. 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 the absence from the house by a member when he is bound by the whip to be there.
Burden of proof
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): This is a recent judgement of the Supreme Court in 2019 in which 15 MLAs had resigned from the Congress and JD(S) resigned. The government collapsed after this and the speaker disqualified and ruled that they cease to be so till 2023 till the end of the expiry of the assembly till 2023.
Observations by the 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 disqualification which prescribed the time period for disqualification were set aside. The following observations were made by the court:
- “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 resignation was tendered voluntarily or genuinely. It is constitutionally impermissible for the Speaker to take into account any extraneous factors while considering the resignation. The satisfaction of the Speaker is subject to judicial review”.
- 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 the 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 the speaker
In this case the Supreme Court laid down grounds for review of the decision of the speaker.
- If it is in violation of constitutional mandate.
- If it is made in a mala fide way.
- If the decision of speaker is perverse.
- If it is in noncompliance with rules of natural justice and perversity.
Loopholes of the defection machinery in India
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 many elected members along with other elected members leave the party 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 defection machinery in India has a number of lacunas within it which can be proved by the recent case of Madhya Pradesh Government crisis where Jyotiraditya scindia along with 22 MLAs left the party, this lead to the fall of Kamal Nath Government and the Kerala legislative assembly case in 2019.
The Anti Defection laws were added into the constitution of India as a set of rules for 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 the collapse of the government in that particular state which leads to political instability. Thus it is necessary for the legislators to act in adherence to the whip and the beliefs of the party.
The Anti Defection laws should incorporate laws under which separate committees for investigations into the matters where accusations of horse trading arise against the members of parties and more stringent laws and sanctions should apply in cases where these members are held guilty. Apart from this, there should be a time period for which an MLA or an MP gets disqualified so that they do not re-contest from the other party if there is a fall in the government which happens in most of the cases.
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