Anti-Defection Laws in India

Introduction

“Power tends to corrupt and absolute power corrupts absolutely.”  – Lord Acton

Over various years since the commencement of constitution, several contentious issues in relation to the working of the different laws have arisen in India. One such issues arose after the gradual evolution from single party system to multi party system.

The multi party system lead to continuous switch by the Members of Parliament (MP) and the Members of Legislative Assembly (MLA) from one political party to other political party, which is commonly expressed as Defection made by the members of Political party. This break down the faith of public in the Democratic form of government, which is characterized as one of the important components of Preamble of Indian Constitution.

As the unregulated defections affected the political stability, in order to promote parliamentary discipline & decorum and to prevent unethical tactics used by the Politicians, the need arose to pass a law that can control the defections made by the members of state legislature or parliament. So, to cope up with this situation, the Anti-defection law was introduced.

But this law was backed by certain limitations, due to which it has not been able to check or control the defections on various occasions. This law has been controversial as it empowers political parties to force their views on the members elected on their ticket, which put forward numerous questions such as—

• Whether this law restricts the members of parliament (MPs) or members of legislative assembly (MLA’s) from voting as per their conscience, which will deteriorate their independent will of decision making or taking decisions as per the needs of their constituency?
• Whether this law lead to suppression of healthy intra-party debate and dissent from any order?
• Whether this law restricts representatives from expressing the concerns of their voters in opposition to their own party statements?
• Why should the decision on defections be judged by the Speaker who is itself a member of the ruling party or coalition, and not by any external neutral body such as the Election Commission?
• Whether an elected member owe greater allegiance to his party or to the people who elect him in the event of clash between the interests?

Background

The phenomenon of defection is not something that is peculiar to India. It is prevalent in democracies all over the world, which have adopted the party system.  In Great Britain, famous politicians like Winston Churchill, William Gladstone and Ramsay Macdonald used it during their careers as political tactics. Similarly, in Australia, Canada and the U.S.A., this practice of defection has been noticeable.

Till 1967, nearby 500 defections took place in India, majority of which were carried out at the state level in state legislatures for the ideological reasons only. But in the year 1967, an independent Haryana MLA Gaya Lal changed his political party thrice a day due to the lure of office, first he joined the Congress Party in 1967; by evening, he shifted to the United Front, and within 9 hours, he re-joined the Congress party. Then, he returned to the United Front within a fortnight, after which the phrase AAYA RAM GAYA RAM become popular in politics in relation to defections.

The most deplorable form of political corruption is Defection, as this form of corruption attaches a price tag on legislators for their change in party membership. This price tag is attached and negotiated with the aim to grab power, topple governments, and mostly subvert the electoral mandate. At that point of time, it was stated that between 1967 to 1969 more than 1500 party defections and 313 independent candidate defections had taken place in the 12 states of the country and till 1971, more than 50% of the legislature had switched from one party to another.

To combat political defections fuelled by political corruption or bribery for encouraging members to defect their own political party, a need to have an ANTI-DEFECTION LAW was expressed as long back as 1969, by the committee led by Y.B Chavan, to restrict the switching of members from belonging to one political party to the other political party in parliament and state legislature. These circumstances were impelling the government to formulate a statutory provision in the constitution which would provide for punitive sanctions on such conduct.

Meaning of Defection

According to the Committee on Defections set up under the chairmanship of Union Home Minister Y.B. Chavan, a defector can be 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.”

Basically, Defection is an act by a member of a particular party of disowning his loyalty towards that particular party and pledging allegiance to another party. This practice of switching the political parties to get office or for any other considerations is also known as Horse-Trading in India, Floor-Crossing in UK and Carpet Crossing in Nigeria. The person performing such Defection for enjoying benefits under other party is said to be Defector or Fence Sitters or Turn Coats.

Y B Chavan Committee

The practice of defection started after the 1967 elections, where Congress formed the government at Centre but the strength goes down from 361 MP’s to 283 MP’s which resulted in collapse of control of congress in seven state legislatures as the MLA’s shifted their political party. A Lok Sabha MP, P Venkatasubbaiah proposed to form a committee to recommend on how to tackle with the problem of Defection.

After continuous debate, it was agreed that a committee is to be set up under Chairmanship of then Union Home Minister, Y B Chavan to examine problem of political defections. The Committee defined Defection as the voluntary giving up of allegiance of a political party on whose symbol a legislator was elected, except when such action was the result of the decision of the party.

According to the reports, major defections are a result of lure of office and to tackle with this problem, the committee recommended that there shall be a bar on defecting legislators from holding ministerial positions for the period of a year or until the time they got themselves re-elected. The committee was of the opinion that political parties should work together to evolve a code of conduct to effectively tackle disruptions.

After the submission of Report, attempts were made to find a solution to combat  defections. The first attempt was made by Indira Gandhi government under Home Minister, Uma Shankar in 1973 and the second attempt was made by Janta Party Government of Morarji Desai under Minister for Law and Justice, Shanti Bhushan in 1978 which were both unsuccessful. After the assassination of Indira Gandhi, a third attempt was made by Congress government in 1985, which was a successful attempt and which laid down the basis for the formation of an ANTI-DEFECTION LAW.

The Bill no. 22 of 1985 was introduced under Rajiv Gandhi government to amend the Constitution by Law Minister Ashok Kumar Sen with the main reason that –  “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.” Earlier 10th Schedule was omitted from the constitution as Sikkim became fully fledged state of India by 36th Constitutional amendment.

Through the 52nd Constitutional amendment, tenth schedule (popularly known as Anti-Defection law) was again added to constitution. The Tenth Schedule prescribed certain provisions as regards to the disqualification of members of Parliament and State Legislatures on the ground of defection and provided for certain exemptions in cases of split of a political party and merger of political parties.

The Anti-Defection law contained in tenth schedule was enacted by parliament in 1985 and come into effect on 1st March, 1985. The provisions of tenth schedule were added to constitution under this 52nd constitutional amendment majorly concerning Article 102 & Article 191.

10^th Schedule of Constitution

The grounds for disqualification are specified in Paragraph 2 of the Tenth Schedule. The paragraph provides various cases wherein the disqualification would apply, of which the following two are commonly used by the defectors- firstly, when there is a voluntarily giving up of seat by the member and secondly, when he votes or abstains from voting contrary to the directive issued by the party.  The grounds are discussed below—

→A member of a House belonging to any political party shall be disqualified for being a member of the House, if he voluntarily gives up his membership of such Political party. According to Oxford dictionary, voluntary means “done, given, or acting of one’s own free will”. “The words ‘voluntarily given up his membership’ are not synonymous with ‘resignation’ and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from membership of that party. Even in the absence of a formal resignation from the 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 Supreme Court, in various readings of the Tenth Schedule, has also opined that members who have simply opposed their party or have expressed even issue-based support for another party were deemed to have ‘voluntarily given up their membership’. In Ram Chandra Prasad Singh Vs Sharad Yadav case, the respondent Shri Sharad yadav who was elected to Rajya Sabha on ticket of Janta Dal from state of Bihar, had by his repeated conduct, against the JDU and its leadership and openly aligning with a rival political party RJD had proved that he has voluntarily given up the membership of the party. Therefore his voluntarily giving up of membership, acquired disqualification on the grounds of tenth schedule. Also, the act of voluntarily giving up membership of the party may be express or implied. In the case of Rajendra Singh Rana vs Swami Prasad Maurya and Ors., the Supreme Court held that the act of giving a letter to the governor requesting him to call upon the leader of the other side to form a Government, is in itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said member had got elected.

→A member of a House belonging to any political party shall be disqualified for being a member of the House, if he votes or abstains from voting, contrary to the directions of his political or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. To vote against the party is disloyalty. To join with others in abstention or voting with other side smacks of conspiracy.

Keeping in view the consequences of the disqualification i.e., termination of the membership of a House; it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore- knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.

→An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any other political party after such election. This means if he/she defects from his/her party to any other party after elections, he will be disqualified from the membership.

→A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat. In case a nominated member doesn’t belongs to any political party, he is provided with a time period of 6 months to join any political party if he is wishes to join but after expiry of six months, he shall not join any political party and if he do so he will be disqualified from being a member of house. In other words, a nominated member is debarred from joining any political party after the expiry of six months from the date on which he takes his seat after subscribing oath in the House to which he is elected.

→If an Independent Member joins a political party after the election is over, he shall stand disqualified.

Exceptions

There are certain exceptions mentioned under Paragraph 4 & Paragraph 5 of 10^th Schedule, which implies that even though a shift in party membership may happen with respect to an elected member, in certain situations, such elected member shall not lose his/her seat because of it. No disqualification can be made in following situations—

→ A member of a House shall not be disqualified where his original political PARTY MERGES with another political party and the member claims that he and other members of his original political party—

• have become members of such other political party or, as the case may be, of a new political party formed by such merger; or
• have not accepted the merger & opted to function as a separate group.

→ The merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger. If there is a merger of two political parties at the national level or at the State level there cannot be any dispute and there will not be any disqualification incurred by the members of the political parties in the said Legislature. It should be noted that initially, the law allowed defections if it involved one-third members , i.e. it had provisions regarding exemption from disqualification in case of a ‘split’ in a political party. But undesirably it resulted in mass defections instead of individual defections.

→a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule,—

• if the person voluntarily given up membership of the party to which he belonged due to election to such office and after completion of term he do not re-join that party or join any other political party; or
• if the person voluntarily given up the membership of the political party by reason of election to such office and re-joins after completion of term.

The question regarding whether a member of a house is subject to disqualification or not shall be referred for the decision to chairman or speaker of house and his decision shall be final as provided under Paragraph 6 i.e. The Chairman or the Speaker of the House takes the decision to disqualify a member. According to proviso the question whether a chairman or speaker is subject to disqualification or not shall be referred to a member elected on behalf of house and his decision shall be final in such case  i.e. If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.

Bar on Jurisdiction

Paragraph 7  provided for bar of jurisdiction of court i.e. no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. Some basic features of constitution were established under the basic structure doctrine developed in Kesavananda Bharati vs State of Kerala, 1973. One such features is the feature of Judicial Review which was being altered as per the interpretation of the 10th schedule and thus it needed clarity upon it. 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 taken into consideration in the Kihoto Hollohon v Zachillu case. 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 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.

In  Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors, 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 contended that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties.

There are certain grounds which were laid down by supreme court for review of the decision of the speaker. The orders of speaker can be challenged on the ground of ultra vires or mala fides or having been made in colourable exercise of power based on extraneous and irrelevant considerations. The order would be a nullity if rules of natural justice are violated.

52^nd Constitutional Amendment, 1985

1.It made members of parliament and state legislature liable to be penalised for their conduct both inside (voting against the whip of the party) and outside (making hate speeches, etc.) the legislature  and the penalty for the same is disqualification from membership on grounds of defection.

2.It protected legislators from being disqualified in cases where there was a split (with 1/3rd of members splitting but now this provision has been omitted since the introduction of 91st amendment in 2003) or merger (with 2/3rds of members merging) of a legislature party with another political party.

3.It made the Presiding Officer of the concerned legislature the sole arbiter of defection proceedings and a bar on jurisdiction of court was imposed (currently presiding officer has the power to decide and his decision shall be final but it is subject to judicial review).

Article 102 of Constitution of India

According to the provisions of Article 102(1) of the constitution, a person shall be disqualified from being a member of either house of parliament

• if he holds any office of profit under the government of India or government of State other than the office declared by parliament by law;
• if a person is declared of unsound mind by competent court;
• if a person is undischarged insolvent;
• if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or ;
• if he is so disqualified by or under any law made by Parliament.

According to Article 102(2) of the constitution, a person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.

Article 191 of Constitution of India

According to the provisions of Article 191(1) of the constitution, a person shall be disqualified from being a member of Legislative Assembly or Legislative Council →

• if he holds any office of profit under the government of India or government of State other than the office declared by parliament by law;
• if a person is declared of unsound mind by competent court;
• if a person is undischarged insolvent;
• if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or ;
• if he is so disqualified by or under any law made by Parliament.

According to Article 191(2) of the constitution, a person shall be disqualified for being a member of legislative assembly or legislative council if he is so disqualified under the Tenth Schedule.

The office of profit means if an MLA or an MP holds a government office and receives benefits from that, then that office is said to be OFFICE OF PROFIT. Office of profit is made a criteria for disqualification as—

• Makers of the Constitution wanted that legislators should not feel obligated to the Executive in any way, which could influence them while discharging legislative functions.
• An MP or MLA should be free to carry out her duties without any kind of governmental pressure. The intent is that there should be no conflict between the duties and interests of an elected member.
• The office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.
• The nature of duty of the legislators is such that it entails into a full-time engagement and that the person concerned will not be in a position to pay full attention towards this if he is holding any other office simultaneously.

91^st Constitutional Amendment, 2003

After the introduction of Anti-defection law, mass defections become common and to control such defections, 91st amendment was introduced by Atal Bihari Vajpayee government, which laid down following provisions→

• If a member is disqualified on the ground of defection from parliament, he shall be disqualified to be appointed as a minister in house.
• If a member disqualified on defection from either House of a state legislature, he shall also be disqualified to be appointed as a minister.
• A member shall also be disqualified to hold any remunerative political post in case of defection i.e. any office under the state or central government where the remuneration is paid out of the public revenue of the concerned government or which is under a body, whether incorporated or not, but is wholly or partially owned by the central or state government and the remuneration is paid by such body itself, except where such remuneration paid is compensatory in nature.
• The exemption from disqualification in case of split by one-third members of legislature party has been deleted i.e. the defectors have no more protection on grounds of splits. The Dinesh Goswami Committee on Electoral Reforms & Law Commission in 170th Report recommended the omission of party splits. Therefore, atleast two third of members have to be in favour of merger to prove validity in eyes of law.

Consequences of Defection

• “Both a resignation as well as a disqualification arising on account of defection under the Tenth Schedule, result in a vacancy of the seat held by the Member in the Legislature, but the consequences which emanate are distinct.
• As a result of Article 164(1-B) of the Constitution, a Member who is disqualified by the Speaker on account of defection is barred from being appointed as a Minister or from holding any remunerative political post from the date of disqualification till the date on which the term of their office would expire or until re-election to the Legislature, whichever is earlier.”
• Under the Tenth Schedule, the Speaker does not have power either to specify the period of disqualification or to bar a Member from contesting elections after disqualification until the end of the term of the Legislative Assembly.

Kihoto Hollohon vs Zachillua & Ors, 1992

The Kihoto Hollohon case is a case where Supreme Court analysed the provisions of the 52nd amendment of the constitution which inserted the Tenth schedule in Constitution.

The case is concerned with whether the power provided to speaker under Paragraph 7 violated the doctrine of Basic Structure — the judicial principle that certain basic features of the Constitution cannot be altered by amendments by Parliament, laid down in the landmark judgment in Kesavananda Bharati vs State Of Kerala .

FACTS OF CASE

In this case, some members of the Nagaland Legislative Assembly were disqualified by the Speaker of the Assembly under the Tenth Schedule to the Constitution of India, as inserted by the Constitution (Fifty-Second Amendment) Act, 1985, on the ground of defection.

The order of speaker was challenged before the High Court of the State. Several other similar orders of the Speakers of the Legislative Assemblies of Manipur, Meghalaya, Madhya Pradesh, Gujarat and Goa were also under challenge before the High Court of states.

All those matters were transferred to it by Supreme court and decided them in the present case. The combined petition aimed to challenge the Constitutional validity of the Tenth Schedule of the constitution, introduced by the Constitution (Fifty-Second Amendment) Act, 1985, on several grounds.

ISSUES OF CASE→ 

1.The Tenth Schedule to the constitution inserted by the constitution (Fifty-second Amendment) Act, 1985, seeking to penalise and disqualify elected representatives is violative of the fundamental principles of Parliamentary democracy and is, therefore, destructive of the basic feature of the Constitution.

2.The Tenth schedule of the Constitution curtails the freedom of speech and expression and subvert the democratic rights of the elected members in parliament and state legislatures.

3.Is granting finality to the decision of the Speaker/ Chairman under Paragraph 6 of the Tenth schedule is valid or not.

4.In particular, para 7 of the Tenth Schedule was challenged on the ground that  para had taken away the jurisdiction of all Courts, including the Supreme Court, to review the order of the Speaker under that Schedule.

JUDGEMENT OF CASE

MINORITY OPINION — The minority judges were of the opinion that the essential feature of Constitution has been violated as decision on disqualification of members shall be decided by an independent authority outside the house, namely by president or governor in accordance with the opinion of the Committee.

The Election Commission was of the similar opinion and in 1977 Election Commission recommended that disqualification on grounds of Defection should also be referred to  Election commission for tendering opinion to president or governor, as the case may be.

MAJORITY OPINION— Supreme court held that the 10th schedule of Constitution neither impinges upon the freedom of speech and expression nor subverts the democratic rights of elected members in parliament or state legislature. Therefore the 10th schedule is constitutionally valid.

On the issues related to paragraph 6 and paragraph 7 of the Tenth Schedule, Supreme Court was of the view that the Speakers/Chairmen hold a pivotal position in Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the Parliamentary democracy. Vestiture of power under the Tenth Schedule in them should not be considered exceptionable or arbitrary. They added that the

Schedule’s provisions were “salutory and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.”  Therefore, the provision granting finality to the orders of the speaker is valid. However, the High Courts and Supreme court has the power to exercise judicial review under constitution. But judicial review should not cover any stage prior to the making of a decision by the speaker/ chairman.

Criticism of the Act

The act was introduced with the aim to strengthen democracy by preventing political defections motivated by mischief and lure of material and political benefits, to check corruption in political sphere, to promote political stability and for clear cut recognition of political parties. But it has been criticised at several occasions such as—

• It gives no scope for dissent to the legislators and thus prevents free speech and optimal participation of the members of the parties. Moreover it prevents the members from being an active participant in discussions on important matters like taking a different stand on a bill as opposed to the party.
• The act still leaves a loophole by the way of mergers and thus goes against the intended goal of preventing defections.
• The vesting of the authority to deliberate matters of defection in the presiding officer of the house who is the member of the ruling party induces bias in decision making in favour of the ruling party. The has been recommended that the power to decide matters regarding defection should be vested in a more independent body like court or the governor.
• The phrase “voluntarily giving up membership” is too vague and needs comprehensive revision.
• In parliamentary democracy, the government should be accountable for its works but the Anti-Defection law had broken this chain of accountability by making legislators primarily accountable to their political party only.

Way Forward

The current form of the Anti-Defection Law has proven to be woefully ineffective in achieving its key objective – that of preventing political instability by keeping a check on defections through Anti-Defection law. In order to solve the shortcomings of Anti-Defection law and to provide more clarification on the disqualifications based on Defection, following steps can be taken—

• If government stability is an issue due to people defecting from their parties, the parties should strengthen their intra party democracy.
• There is a need for legislation that governs or regulate the political parties in India which can bring political parties under RTI etc.
• In order to shield the detrimental effect of the anti-defection law on representative democracy, the scope of the law can be restricted to only, where the defeat of government can lead to loss of confidence.
• Chairman/Speaker of the house, being the final authority in terms of decision for disqualification on ground of defection, affects the doctrine of separation of powers and at times seems arbitrary. The transfer of power to take decision to higher judiciary or to election commission can menace this problem.
• Independent tribunals should be set up to decide the disqualification of membership on grounds of defection.
• The structural issues regarding the manner of appointment of the Speaker and his tenure in office needs an urgent Redressal.
• Current Lok Sabha speaker Om Birla stated, “Power in anti-Defection law need to be redefined”.

Conclusion

The introduction of anti-defection law has enabled the political parties to have stronger grip on their members which has resulted into preventing members to defect for the lure of money. It also provided stability to the government by preventing shifts of party allegiance and ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party.

However, it has resulted into some unintended outcomes i.e. the curtailing to a certain extent the role of the MP or member of state legislature. It has resulted into absence of constructive debates on critical policy issues. The whip has become all the more powerful and has to be followed in all circumstances.

A constitutional amendment vesting the power to decide matters relating to disqualification on the ground of defection with the President/Governor acting on the advice of the Election Commission i.e  the decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission, would actually help in preserving the integrity of the Speaker’s office.

This article has been contributed by Komal, student at Panjab University, Chandigarh.