Dwindling Democracy and Defection
Introduction
Recent political chaos in Maharashtra has thrown the spotlight on the complexity of anti-defection law and the speaker’s power in the process yet again. The Maharashtra political crisis erupted when on June 22, the ruling Shiv Sena called a meeting of all its MLAs in Mumbai. Some of its legislators have aligned themselves with the party’s rebel leader Eknath Shinde and were camping in Guwahati.
The party had warned its MLAs that their absence from the meeting would lead to the presumption they wanted to leave the political party. And this would therefore lead to action against them under the anti-defection law. The issue sparkled when Supreme Court interfered and quashed the suspension of rebel MLAs.[1] This whole debacle leads us to several questions that need to be answered, can the Speaker (or in his absence, the Deputy Speaker) decide on a disqualification petition while a no-confidence motion is pending against him?
Can the Supreme Court review the decision ahead of the disqualification decision being made? How does the leeway given for the merger of a party operate if two-thirds of MLAs of the party vote to separate from the party leadership, would they have to merge with another party to avoid disqualification? This ‘crossing of floor’ is now quite frequently witnessed in Indian politics and has highlighted the concern of stability of legislators in one party.
The History
In 1967, the Aaya Ram Gaya Ram phrase acquired popularity in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day.[2] The anti-defection law sought to prevent such political defections which may be due to the remuneration or other similar considerations. Present Anti- Defection law was passed by the parliament in the year 1985, by the 52nd Constitutional Amendment[3], which added the Tenth Schedule in the constitution.
Further through the 91st Amendment[4] in the constitution Article 101, 102, 190, 191, 164 (1B), 361 B of the Constitution regarding vacation of seats and disqualification from membership of Parliament and State legislature and setting out certain provisions as to disqualification on ground of defection. In brief, the Tenth Schedule to the Constitution provides for disqualification of an MP or MLA if they vote against the party whip on any issue.
Although legislators may change their party without the risk of disqualification in certain circumstances, the law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favor of the merger. In such a scenario, neither the member who decides to merge nor the ones who stay with the original party will face disqualification. In other situations, if a person was elected as chairman or Speaker and was forced to resign from their party, they can rejoin the party after leaving that position.
The Parliamentary democracy
The Parliamentary democracy vests considerable power in the office of the Speaker of the House. The speaker of the House conventionally comes from the party who is in power, but once they occupy the Chair, they are expected to shed their party connection and impartially administer the rules of the House (including its conventions).
The assumption of the Speaker’s fair-mindedness is the hidden reason for another vital established show, that Court will not be called upon to mediate questions connecting with what happens in Parliament. The Parliament has its own adjudicating authority, the Speaker, and the doctrine of the separation of powers requires Courts to defer absolutely to how the Speaker manages the affairs of the House. Additionally, the law doesn’t give a specific time frame for the action, which gives the Speaker arbitrary power.
Some cases take six months and some even three years. There are cases that are disposed of after the term is over. However, once it becomes clear that Speakers repeatedly and blatantly act according to partisan motives, an intervention of the court becomes inevitable. And, if opposition parties have good reason to believe that the game in the House is rigged, they have little choice but to go to Court. And the Court faces a difficult situation where constitutional conventions require it to stay out of Parliament, but at the same time, staying out would result in another set of conventions being violated with impunity.
That is the reason various expert committees have recommended that rather than the preceding officer, the decision to disqualify a member should be made by the President (in the case of MPs) or the Governor (in the case of MLAs) on the advice of Election Commission. This would be similar to the process followed for disqualification in case the person holds an office of profit.
Threat to Democracy
The anti-defection law is based on the theory that political defections undermine democratic discourse in the nation by creating instability in democratically elected administrations, frequently prompting midterm elections, wasting public funds, and eroding citizens’ faith in democracy. In contrast, what use is a citizen representative who swaps political allegiances for personal gain, disregarding constitutional ideals and putting the interests of citizens in danger?
The anti-defection law effectively aims to put democratic and constitutional ideals, and the citizen’s stake at the heart of the decision-making discourse of legislators. The Anti defection law was enacted with the noble purpose to secure political stability in the Government which is a pre-requisite in ensuring the democratic rights of the citizen of the country. However, after the enactment of the Anti-Defection law, the members of the parliament and state assembly have to follow the party’s directions blindly and have no freedom to vote in judgment.
This ultimately makes the member primarily accountable to the party rather than to the people for whose benefit he has been elected as a representative and sometimes it becomes difficult to differentiate between dissent and defection and weakens the parliamentary deliberation on any law. The law has created a democracy of parties and numbers rather than the democracy of debate and discussion. Further, it is evident that the present defection law allows wholesale defection but retail defection is not allowed. New amendments are required to plug these loopholes.
The Courts and the Law
On various occasions, the supreme court has interpreted the provision to ensure transparent parliamentary democracy. In Ravi Naik vs Union of India, 1994[5] while interpreting the term “Voluntarily gives up his membership” held that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct. In the case of G.Viswanathan Vs. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras& Another, 1996,[6] interpreted that those members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.
Further in Kihoto Hollohon vs. Zachilhu and Others, 1992,[7] the law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court. However, it held that there may not be any judicial intervention until the Presiding Officer gives his order. It was further specified that no interference would be made until the Presiding Officer issued his order. So, at present, the law is, that the decision on disqualification is to be taken by the Speaker and the court can only interfere when it is found that decision of the speaker is unreasonable and arbitrary.
Conclusion
Thus, it is evident that the anti-defection law was passed with the aim to provide stability to the governments and promote party discipline. Though political instability caused by frequent and unholy changes of allegiance on the part of our country’s legislators has been greatly reduced due to the 10th Schedule of the Indian Constitution, however, the repeated cases of defections have questioned the viability of Anti- Defection Law. Lately, former Vice president Hamid Ansari has suggested that it applies only to save the government in no-confidence motions.
The 170th Law Commission report[8] underscored the importance of intra-party democracy by arguing that a political party cannot be a dictatorship internally and democratic in its functioning outside. Thus, the parties should listen to the opinions of the members and have a discussion on the same. This would give the freedom of speech and expression to its members and promote inter-party democracy. Hence, it is perceptible that there is still a need for a more rationalized version of the 10th Schedule of the Indian Constitution to help establish a truly representative democracy.
The article has been contributed by Shalini Yadav and Swapnil. Shalini Yadav is a student at Delhi University and Swapnil is a student at Dr Ram Manohar Lohia National Law University.
End Notes
[1]https://www.indiatoday.in/india/story/maharashtra-crisis-supreme-court-shiv-sena-plea-floor-test-rebel-eknath-shinde-1968071-2022-06-29.
[2] Paras Diwan, Aya Ram Gaya Ram: The Politics of Defection, Journal of the Indian Law Institute, Vol. 21, No. 3 (July-September 1979).
[3] The Constitution (Fifty-second Amendment) Act, 1985.
[4] The Constitution (Ninety-First Amendment) Act, 2003.
[5] (1994) SCC (11) 641.
[6] (1996) 2 SCC 353.
[7] (1992) 2 SCC 651.
[8] 170th Law Commission report, available at https://lawcommissionofindia.nic.in/lc170.htm.
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