Our Indian Bureaucratic and Legislative system is running through our politicians,politicians comes from the word “Politics.” The word politics comes from the Greek word “Politika” which means “of, for, or relating to citizens,” but our Indian Politics according to a layman is a bog where a person once enters never comes out. Politicians make promises but never fulfill those promises; they work on filling their pockets and making life of people miserable. Earlier after the Independence, it was very easy for a legislative elected member to hop around from one party to another to fulfill their ambitions, but this led to many Governments toppling around, keeping in mind all this our legislatures made an amendment in the year 1985 which was our 52nd Amendment Act and passed a law called “Anti-defection law” which added a new schedule to our Constitution, i.e., X Schedule.
Introduction:
Anti-defection law, its main intent is to combat ‘the evil of political defections.’ This law was passed soon after Lt. Shri. Rajiv Gandhi became the Prime Minister of the country with a massive mandate. This law would not have been passed if there had been no Rajiv Gandhi and his government with an unparalleled massive majority. This law was passed so that it curbs the political deflections but the ever increasing hunger of our legislatures and with our excellent legal fraternity it was not a difficult task to find some loopholes in this law and they used it to their interest.
What is Anti-defection law?
Schedule X[1] of our Constitution provides for Anti-defection law, it is as follows:-
1. Interpretation.—In this Schedule, unless the context otherwise requires,—
(a)"House" means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State;
(b)"legislatureparty", inrelation to amember of a House belonging to any political party in accordance with the provisions of paragraph 2 orparagraph4 , means the group consisting of all the members of that House for the time being belonging to that political party inaccordance with the said provisions;
(c)"original political party", inrelation to amember of a House, means the political party to which he belongs for the purpose so fsub-paragraph (1) of paragraph2;
(d)"paragraph" means a paragraph of this Schedule.
2. Disqualification on ground of defection.—(1) Subject to the provisions of [Paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House—
( a ) if he has voluntarily given up his membership of such political party ; or
( b ) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs 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 .
Explanation.—For the purposes of this sub-paragraph,—
( a ) an elected member of a House shall be deemed to belong to the political party, if any , by which he was set up as a candidate for election as such member ;
( b ) a nominated member of a House shall , —
(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.
(2) 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 political party after such election
(3) 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 after Complying with the requirements of article 99 or, as the case may be, article 188.
(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,—
(i) where he was a member of political party immediately before such commencement , be deemed , for the purposes of sub-paragraph (1) of this paragraph , to have been elected as a member of such House as a candidate set up by such political party ;
(ii) in any other case , be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or , as the case may be , be deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph .
4. Disqualification on ground of defection not to apply in case of merger.—(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party—
(a) have become members of such other political party or , as the case may be, of a new political party formed by such merger ; or
( b ) have not accepted the merger and opted to function as a separate group, and from the time of such merger , such other political party or new political party or group , as the case may be , shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph ( 1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph .
(2) For the purposes of sub-paragraph (1) of this paragraph , 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 .
5. Exemption , —Notwithstanding anything contained in this Schedule , 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, —
( a ) if he , by reason of his election to such office , voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not , so long as he continues to hold such office thereafter , rejoin that political party or become a member of another political party ; or
( b ) if he , having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election , rejoins such political party after he ceases to hold such office .
6 . Decision on questions as to disqualification on ground of defection . —
( 1 ) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule , the question shall be referred for the decision of the Chairman or , as the case may be , the Speaker of such House and his decision shall be final :
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to
disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212.
7. Bar of jurisdiction of courts.—notwithstanding anything in this Constitution, no court shall
have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.
8. Rules.—(1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for—
(a)the maintenance of register so rother records as to the political parties, if any, to which different members of the House belong;
(b) the report which the leader of alegislature party in relation to amember of a Houses hall furnish with regard to any condonation of the nature referred to in clause (b)of sub-paragraph(1)of paragraph2 in respec to fsuch member, the time with in which and the authority to whom such report shall be furnished;
(c)the reports which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such reports shall be furnished; and
(d) the procedure for deciding any question referred to insub-paragraph (1) of paragraph 6 including the procedure forany inquiry which may be made for the purpose of deciding such question.
(2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this
paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect.
(3) The Chairman or the Speaker of a House may, without prejudice to the provisions of Article 105[2] or, as the case may be, article 194[3], and to any other power which he may have under this Constitution direct that any willful contravention by any person of the rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House.
Advantages and Disadvantages of this law:
This law have its own advantage and disadvantages and it is upon our politicians and our citizens to see how they interpret this law and help in the proper functioning of the democracy.
Advantages:
· Provides stability to the government by preventing shifts of party allegiance.
· Ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party policies. Also promotes party discipline.
Disadvantages:
· By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people.
· Interferes with the member’s freedom of speech and expression by curbing dissent against party policies.
Disqualifications in Parliament and State Legislatures[4]:
According to a statistics from 2004, from 1985 to 2004 there had been 88 complaints of anti-defection made in Parliament and 268 complaints in State Legislatures, out of which 26 were approved in the Parliament and 113 in State Legislatures. Punjab State Legislature tops the chart with 23 disqualifications till 2004 followed by Nagaland with 15 and Goa with 12.
The Law Relating to Defection in Other Countries :
Anti- defection law is not only practiced in India but it is provided by various other countries like Bangladesh, Kenya, South Africa, etc. Article 70 of the Bangladesh Constitution says a member shall vacate his seat if he resigns from or votes against the directions given by his party. The dispute is referred by the Speaker to the Election Commission.
Section 40 of the Kenyan Constitution states that a member who resigns from his party has to vacate his seat. The decision is by the Speaker, and the member may appeal to the High Court.
Article 46 of the Singapore Constitution says a member must vacate his seat if he resigns, or is expelled from his party. Article 48 states that Parliament decides on any question relating to the disqualification of a member.
Section 47 of the South African Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party that nominated him.
Defect of Defections:
Defections numbering more than one-third of the party's strength were considered to be legal. It also provided for the disqualification of individual members defecting from the party through which the member was elected. Even here, the law is open to considerable interpretation, and in some state legislatures the bias of the Speaker leads to confusion, often resulting in litigation.
The first challenge to the anti-defection law was made in the Punjab and Haryana high court in Parkash Singh Badal and others v. Union of India and others[5] . One of the grounds on which the law was challenged was that paragraph 2(b) of the Tenth Schedule to the Constitution violated Article 105 of the Constitution, wherein the court held: "So far as the right of a member under Article 105 is concerned, it is not an absolute one and has been made subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament. The framers of the Constitution, therefore, never intended to confer any absolute right of freedom of speech on a member of the Parliament and the same can be regulated or curtailed by making any constitutional provision, such as the 52nd Amendment. The provisions of Para 2(b) cannot, therefore, be termed as violative of the provisions of Article 105 of the Constitution.(Para 28)."
The Constitution (32nd Amendment) Bill 1973 and the Constitution (48th Amendment) Bill 1978 had provisions for decision-making by the president and governors of states in relation to questions on disqualification on ground of defection.
The Constitution (52nd Amendment) Bill 1985 suddenly introduced the provision that questions of disqualification on ground of defection shall be decided by chairmen and speakers of the legislative bodies. The intention was to have speedier adjudicative processes under the Tenth Schedule. This provision was a subject matter of serious debate in both Houses of Parliament when the bill was being passed.
The 91st Amendment to the Constitution was enacted in 2003 to tighten the anti-defection provisions of the Tenth Schedule, enacted earlier in 1985. This amendment makes it mandatory for all those switching political sides — whether singly or in groups — to resign their legislative membership. They now have to seek re-election if they defect and cannot continue in office by engineering a "split" of one-third of members, or in the guise of a "continuing split of a party". The amendment also bars legislators from holding, post-defection, any office of profit. This amendment has thus made defections virtually impossible and is an important step forward in cleansing politics. Irony of the situation today is that the events have nullified the real intent of the dream of Rajiv Gandhi.
There have been instances wherein after the declaration of election results, winning candidates have resigned from their membership of the House as well as the party from which they got elected. Immediately, they have joined the political party which has formed the government and have again contested from that political party, which appears to be a fraud and goes against the spirit of the democracy and 52nd constitutional amendment. The ingenious human brain invented innovative ideas to obtain resignations and, in effect, made the anti-defection law a cover to hide their heinous crime.
This law excluded the jurisdiction of judiciary from reviewing the decisions of Speakers. This part was held to be unconstitutional by Supreme Court, while it upheld the rest of the law. The Supreme Court was unanimous in holding that paragraph 7 of tenth schedule completely excluded jurisdiction of all courts including the Supreme Court under Article 136 and High Courts under Articles 226 and 227 in respect of any matter connected with the disqualification of the member of a House. The Constitution does not allow the legislature to limit the powers of judiciary. ‘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’, Supreme Court said. Accordingly the Supreme Court reviewed and struck down the order passed by Speaker of Goa Assembly for disqualifying two members in violation of constitutional mandate contained in paragraph 3 of Tenth Schedule to the Constitution. [6]
If we go deep into the impact of this law, it curbs the legislators’ freedom of opposing the wrong policies, bad leaders and anti-people bills proposed by the ‘High Command’ in arbitrary and undemocratic manner. This law has given additional dictatorial power to the political party to keep the flock together for an entire term.
Jeeth Choudhary in his article ‘Whether Dissent Equals Defection in the Indian Parliament?’[7] Concluded: “Section 2(b) of the Tenth Schedule puts the Member of Parliament into the straight jacket of obedience to the despotic dictates of the party whips which undermines the democratic spirit. It also violates the principle of representative democracy by empowering the party, and undermining the relationship between elected representatives and their constituents. The anti defection law makes a mockery of parliamentary democracy by marginalizing debates, as the legislators are not allowed to dissent, without being disqualified by the House. Disruptions, rather than substantive debate, become the only form of opposition possible. Parliamentary debate has thereby become largely redundant. Without letting Indian politics degenerate like this, the author supports the proposed amendment so that our politicians can be allowed to publicly and legitimately debate political ideology, negotiate electoral prospect and be persuaded by ideas’.
The Tenth Schedule has laid down certain norms for keeping the flock of legislators of each party together, and the ‘whips’ in the hands of legislative party leaders reducing the hon’ble leaders and people’s representatives into shepherds and sheep. As the political parties invented mechanisms to fail this constitutional legislation, the judiciary played a very significant role in upholding the legality and morality of the law besides expanding its horizons to curb most treacherous practice of sudden political disloyalty. This Tenth Schedule whenever used enhancing the burden of courts. The political parties, instead of maintaining standards within the party with effective leadership, are resorting to litigation, begging the courts to decide the political issues, which they failed to settle. The Karnataka High Court is now engaged with the issue of political leadership of ruling party and manipulative politics of opposition party. This is another unfortunate development. It is not fair to blame judiciary for taking time to decide this tricky question within the frame work of constitution. Neither the Governor nor the Speaker is bona fide. Their moves are not fair. They desperately try to use Constitutional power to settle political scores and wreck political vengeance. In the process they just do not care the people’s will in electing a party to power, for whatever reasons that might be.
Dependents and Independents
There are a few nominated seats provided by the Constitution in legislative houses. Unless he is dependent, he cannot be nominated as legislator. Hence he can decide his loyalty. A nominated member of a house will be disqualified if he joins any political party after six months. That means law permits him to be loyal or disloyal to nominating party only for six months. (Section 2(3) of Tenth Schedule of Constitution of India)
It is wrong to say that there are no provisions for disqualifying independent members for defection from their ‘independent’ status. If an independent legislator joins a political party he would lose membership. Law mandates an independent legislator to maintain the independent status. He can choose to support any political party but should not attach himself to any. . This decision should be supported by the material placed on record. . In Jagjit Singh v State of Haryana[8] the legislators were elected as Members of Assembly as independent candidates. Later they joined a political party and news of their joining was reported in print as well as electronic media. That fact was allegedly admitted by members in an interview given to a TV news channel. Thereafter those members were disqualified from being members of Assembly by Speaker. It was challenged. The Supreme Court held: “when an independent member is alleged to have joined a political party the test to be applied is whether the member has given up his independent character on which he was elected. This has to be determined on appreciation of material on record and conduct of the member of the Speaker. No hard and fast rule can be laid down when the answer is dependent on facts of each case. The substance and spirit of anti-defection provisions are the guiding factors”. Disqualification of these members by speaker was upheld, despite the allegation of procedural defect in enquiry.
Supreme Court also clarified one more question in Jagjit Singh case: “Where a sole member of a political party in an Assembly joins another political party, he can not get protection of paragraph 3 of Tenth Schedule of the Constitution and will be disqualified from being member under paragraph 2 of the Tenth Schedule of the Constitution.”
Judicial interpretation by Courts :
In Kihota Hollohon vs. Zachilhu and Others[9] a question was raised that whether the right to freedom of speech and expression is curtailed by the Tenth Schedule, the Apex Court held that “The provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution.” In the present case few more issues were raised that whether Para 6 & 7 of the X schedule are constitutional or not? The Supreme Court held that to the extend that the provisions grant finality to the orders of the Speaker, the provision is valid. However, the High Courts and the Supreme Court can exercise judicial review under the Constitution. Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen. Para 7 seeks to change the operation and effect of Articles 136, 226 and 227 of the Constitution which give the High Courts and Supreme Court jurisdiction in such cases. Any such provision is required to be ratified by state legislatures as per Article 368(2). The paragraph was therefore held invalid as it had not been ratified.
In another case an issue was raised that whether a member can be said to voluntarily give up his membership of a Party , if he joins another party after being expelled by his old political party, it was held by S.C. that “Once a member is expelled, he is treated as an ‘unattached’ member in the house. However, he continues to be a member of the old party as per the Tenth Schedule. So if he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party.”[10]
In another case it was asked whether a Speaker can review his own decision to disqualify a member under the Tenth Schedule, it was held that The Speaker of a House does not have the power to review his own decisions
to disqualify a candidate. Such power is not provided for under the Schedule, and is not implicit in the provisions either.[11]
In Ravi S, Nayak v. Union of India[12] two issues were raised that whether the Speaker of a legislature is bound by the directions of a Court and Whether judicial review by courts extends to rules framed under the Tenth Schedule, it was held by the Hon’ble Apex Court that “the orders passed by a speaker are subject to judicial review and rules under the Tenth Schedule are procedural in nature. Any violation of those would be a procedural irregularity. Procedural irregularity is immune from judicial scrutiny.”
A very important issue regarding that when can a court review the Speaker’s decision making process under the Tenth Schedule was answered by the S.C. in Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors.[13], it was held that if the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties.
Recent Orders on Disqualification by the Speaker for Defection[14]:
· Shri Rajeev Ranjan Singh “Lalan” vs. Dr. P.P. Koya, JD(U), (January 9, 2009). Dr. Koya defied a party whip requiring him to be present in the House and vote against the Motion of Confidence for the government. He claimed he was too ill to be present in the House. The Speaker concluded that Dr. Koya abstained from voting by remaining absent, and the evidence of the ‘illness’ is not sufficient to conclude that he was so ill that he could not be present in the House.
· Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad, JD(U), (October 3, 2008). Shri Prasad defied a party whip requiring him to be present in the House. In his defence, he denied that any whip was issued or served. The Speaker held that in view of the fact that there is evidence to show that the whip had been delivered to Shri Prasad’s house, and had been duly received, it cannot be said that Shri Prasad had no knowledge of the whip.
· Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress, (September 10, 2008). The INC alleged that Shri Bishnoi often dissented from, and criticized the Congress government publicly, and had demanded the dismissal of the government in Haryana. The Speaker held that a person getting elected as a candidate of a political party also gets elected because of the programs of the party. If the person leaves the party, he should go back before the electorate.
· Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP, (January 27, 2008). It was alleged that Shri Akhlaque joined the Samajwadi Party in a public meeting. It was alleged that at this meeting, Shri Akhlaque had said that at heart, he had always been a member of the SP. The Speaker reasoned that there is no reason why news clippings and stories in the media would be untruthful. The Speaker therefore held Shri Akhlaque disqualified for having voluntarily given up membership of the BSP.
· The most recent case relating to anti-defection is from the Karnataka State Legislature where B.J.P. is the ruling party and 14 members of B.J.P. and 5 independent members sent a letter of discontent against the Chief Minister. A complaint was made against them and speaker disqualified them from their membership. The case is pending in the S.C.
Recommendations of Various Bodies on Reforming the Anti-Defection Law:
Dinesh Goswami Committee on electoral reforms (1990)
Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.
The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
Law Commission (170th Report, 1999)
Provisions which exempt splits and mergers from disqualification to be deleted.
Pre-poll electoral fronts should be treated as political parties under anti-defection law.
Political parties should limit issuance of whips to instances only when the government is in danger.
Election Commission
Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
Constitution Review Commission (2002)
Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term.
The vote cast by a defector to topple a government should be treated as invalid.
Conclusion:
Anti-defection law when it was passed, it aimed at bringing down the political defect but due to ever increasing political dishonesty and corruption this law never evolved properly and now a question have arose that ‘whether achieving the goals of this law a reality or a myth?’ Politicians found loopholes in this law and used it for their own benefit.
It is high time that a watchdog should be provided to our Parliament and there is a need for our constitutional pundits to revisit the issue to combat the menace of corruption and defection which has eroded the values of democracy.
Social activists like Anna Hazare and now public figures like Baba Ramdev are doing their best with the help of citizens and using the method of ‘non-violence’ and ‘satyagrah’ which were adopted by the father of the nation ‘Mahatma Gandhi’ to eradicate Britishers from the country and doing their best to make sure that our sleeping government should wake up and start taking steps towards eradicating political corruption and only this will help in achieving the goal which was set while passing this law. This law can also work if certain recommendations mentioned above are taken into consideration and an amendment be made in this law.
In the end I would like to quote that “ a government, for protecting business only, is about a carcass, and soon falls by its own corruption and decay,” so the government has a duty to stand and deliver now and not let this law turn into a myth.
[1] M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law, Pg. 2292
[2] M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law, Pg. 2053
[3] M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law, Pg. 2082
[4] RTI filed by PRS
[5] AIR 1987 Punjab & Haryana 263
[6] Ravi S. Naik and Sanjay Bandekar Vs. Union of India AIR 1994 SC 1558
[7] SSRN Article dated 27 May 2010
[8] AIR 2007 SC 590
[9] AIR 1993 SC 412
[10] G.Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996) 2 SCC 353
[11] Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative Assembly (1993) 2 SCC 703
[12] Supra at 3
[13] (2007) 4 SCC 270]
[14] Bulletin II of the Lok Sabha on different dates as mentioned
Our Indian Bureaucratic and Legislative system is running through our politicians,politicians comes from the word “Politics.” The word politics comes from the Greek word “Politika” which means “of, for, or relating to citizens,” but our Indian Politics according to a layman is a bog where a person once enters never comes out. Politicians make promises but never fulfill those promises; they work on filling their pockets and making life of people miserable. Earlier after the Independence, it was very easy for a legislative elected member to hop around from one party to another to fulfill their ambitions, but this led to many Governments toppling around, keeping in mind all this our legislatures made an amendment in the year 1985 which was our 52nd Amendment Act and passed a law called “Anti-defection law” which added a new schedule to our Constitution, i.e., X Schedule.
Introduction:
Anti-defection law, its main intent is to combat ‘the evil of political defections.’ This law was passed soon after Lt. Shri. Rajiv Gandhi became the Prime Minister of the country with a massive mandate. This law would not have been passed if there had been no Rajiv Gandhi and his government with an unparalleled massive majority. This law was passed so that it curbs the political deflections but the ever increasing hunger of our legislatures and with our excellent legal fraternity it was not a difficult task to find some loopholes in this law and they used it to their interest.
What is Anti-defection law?
Schedule X[1] of our Constitution provides for Anti-defection law, it is as follows:-
1. Interpretation.—In this Schedule, unless the context otherwise requires,—
(a)"House" means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State;
(b)"legislatureparty", inrelation to amember of a House belonging to any political party in accordance with the provisions of paragraph 2 orparagraph4 , means the group consisting of all the members of that House for the time being belonging to that political party inaccordance with the said provisions;
(c)"original political party", inrelation to amember of a House, means the political party to which he belongs for the purpose so fsub-paragraph (1) of paragraph2;
(d)"paragraph" means a paragraph of this Schedule.
2. Disqualification on ground of defection.—(1) Subject to the provisions of [Paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House—
( a ) if he has voluntarily given up his membership of such political party ; or
( b ) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs 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 .
Explanation.—For the purposes of this sub-paragraph,—
( a ) an elected member of a House shall be deemed to belong to the political party, if any , by which he was set up as a candidate for election as such member ;
( b ) a nominated member of a House shall , —
(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.
(2) 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 political party after such election
(3) 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 after Complying with the requirements of article 99 or, as the case may be, article 188.
(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,—
(i) where he was a member of political party immediately before such commencement , be deemed , for the purposes of sub-paragraph (1) of this paragraph , to have been elected as a member of such House as a candidate set up by such political party ;
(ii) in any other case , be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or , as the case may be , be deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph .
4. Disqualification on ground of defection not to apply in case of merger.—(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party—
(a) have become members of such other political party or , as the case may be, of a new political party formed by such merger ; or
( b ) have not accepted the merger and opted to function as a separate group, and from the time of such merger , such other political party or new political party or group , as the case may be , shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph ( 1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph .
(2) For the purposes of sub-paragraph (1) of this paragraph , 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 .
5. Exemption , —Notwithstanding anything contained in this Schedule , 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, —
( a ) if he , by reason of his election to such office , voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not , so long as he continues to hold such office thereafter , rejoin that political party or become a member of another political party ; or
( b ) if he , having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election , rejoins such political party after he ceases to hold such office .
6 . Decision on questions as to disqualification on ground of defection . —( 1 ) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule , the question shall be referred for the decision of the Chairman or , as the case may be , the Speaker of such House and his decision shall be final :
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212.
7. Bar of jurisdiction of courts.—notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.
8. Rules.—(1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for—
(a)the maintenance of register so rother records as to the political parties, if any, to which different members of the House belong;
(b) the report which the leader of alegislature party in relation to amember of a Houses hall furnish with regard to any condonation of the nature referred to in clause (b)of sub-paragraph(1)of paragraph2 in respec to fsuch member, the time with in which and the authority to whom such report shall be furnished;
(c)the reports which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such reports shall be furnished; and
(d) the procedure for deciding any question referred to insub-paragraph (1) of paragraph 6 including the procedure forany inquiry which may be made for the purpose of deciding such question.
(2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect.
(3) The Chairman or the Speaker of a House may, without prejudice to the provisions of Article 105[2] or, as the case may be, article 194[3], and to any other power which he may have under this Constitution direct that any willful contravention by any person of the rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House.
Advantages and Disadvantages of this law:
This law have its own advantage and disadvantages and it is upon our politicians and our citizens to see how they interpret this law and help in the proper functioning of the democracy.
Advantages:
· Provides stability to the government by preventing shifts of party allegiance.
· Ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party policies. Also promotes party discipline.
Disadvantages:
· By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people.
· Interferes with the member’s freedom of speech and expression by curbing dissent against party policies.
Disqualifications in Parliament and State Legislatures[4]:
According to a statistics from 2004, from 1985 to 2004 there had been 88 complaints of anti-defection made in Parliament and 268 complaints in State Legislatures, out of which 26 were approved in the Parliament and 113 in State Legislatures. Punjab State Legislature tops the chart with 23 disqualifications till 2004 followed by Nagaland with 15 and Goa with 12.
The Law Relating to Defection in Other Countries :
Anti- defection law is not only practiced in India but it is provided by various other countries like Bangladesh, Kenya, South Africa, etc. Article 70 of the Bangladesh Constitution says a member shall vacate his seat if he resigns from or votes against the directions given by his party. The dispute is referred by the Speaker to the Election Commission.
Section 40 of the Kenyan Constitution states that a member who resigns from his party has to vacate his seat. The decision is by the Speaker, and the member may appeal to the High Court.
Article 46 of the Singapore Constitution says a member must vacate his seat if he resigns, or is expelled from his party. Article 48 states that Parliament decides on any question relating to the disqualification of a member.
Section 47 of the South African Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party that nominated him.
Defect of Defections:
Defections numbering more than one-third of the party's strength were considered to be legal. It also provided for the disqualification of individual members defecting from the party through which the member was elected. Even here, the law is open to considerable interpretation, and in some state legislatures the bias of the Speaker leads to confusion, often resulting in litigation.
The first challenge to the anti-defection law was made in the Punjab and Haryana high court in Parkash Singh Badal and others v. Union of India and others[5] . One of the grounds on which the law was challenged was that paragraph 2(b) of the Tenth Schedule to the Constitution violated Article 105 of the Constitution, wherein the court held: "So far as the right of a member under Article 105 is concerned, it is not an absolute one and has been made subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament. The framers of the Constitution, therefore, never intended to confer any absolute right of freedom of speech on a member of the Parliament and the same can be regulated or curtailed by making any constitutional provision, such as the 52nd Amendment. The provisions of Para 2(b) cannot, therefore, be termed as violative of the provisions of Article 105 of the Constitution.(Para 28)."
The Constitution (32nd Amendment) Bill 1973 and the Constitution (48th Amendment) Bill 1978 had provisions for decision-making by the president and governors of states in relation to questions on disqualification on ground of defection.
The Constitution (52nd Amendment) Bill 1985 suddenly introduced the provision that questions of disqualification on ground of defection shall be decided by chairmen and speakers of the legislative bodies. The intention was to have speedier adjudicative processes under the Tenth Schedule. This provision was a subject matter of serious debate in both Houses of Parliament when the bill was being passed.
The 91st Amendment to the Constitution was enacted in 2003 to tighten the anti-defection provisions of the Tenth Schedule, enacted earlier in 1985. This amendment makes it mandatory for all those switching political sides — whether singly or in groups — to resign their legislative membership. They now have to seek re-election if they defect and cannot continue in office by engineering a "split" of one-third of members, or in the guise of a "continuing split of a party". The amendment also bars legislators from holding, post-defection, any office of profit. This amendment has thus made defections virtually impossible and is an important step forward in cleansing politics. Irony of the situation today is that the events have nullified the real intent of the dream of Rajiv Gandhi.
There have been instances wherein after the declaration of election results, winning candidates have resigned from their membership of the House as well as the party from which they got elected. Immediately, they have joined the political party which has formed the government and have again contested from that political party, which appears to be a fraud and goes against the spirit of the democracy and 52nd constitutional amendment. The ingenious human brain invented innovative ideas to obtain resignations and, in effect, made the anti-defection law a cover to hide their heinous crime.
This law excluded the jurisdiction of judiciary from reviewing the decisions of Speakers. This part was held to be unconstitutional by Supreme Court, while it upheld the rest of the law. The Supreme Court was unanimous in holding that paragraph 7 of tenth schedule completely excluded jurisdiction of all courts including the Supreme Court under Article 136 and High Courts under Articles 226 and 227 in respect of any matter connected with the disqualification of the member of a House. The Constitution does not allow the legislature to limit the powers of judiciary. ‘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’, Supreme Court said. Accordingly the Supreme Court reviewed and struck down the order passed by Speaker of Goa Assembly for disqualifying two members in violation of constitutional mandate contained in paragraph 3 of Tenth Schedule to the Constitution. [6]
If we go deep into the impact of this law, it curbs the legislators’ freedom of opposing the wrong policies, bad leaders and anti-people bills proposed by the ‘High Command’ in arbitrary and undemocratic manner. This law has given additional dictatorial power to the political party to keep the flock together for an entire term.
Jeeth Choudhary in his article ‘Whether Dissent Equals Defection in the Indian Parliament?’[7] Concluded: “Section 2(b) of the Tenth Schedule puts the Member of Parliament into the straight jacket of obedience to the despotic dictates of the party whips which undermines the democratic spirit. It also violates the principle of representative democracy by empowering the party, and undermining the relationship between elected representatives and their constituents. The anti defection law makes a mockery of parliamentary democracy by marginalizing debates, as the legislators are not allowed to dissent, without being disqualified by the House. Disruptions, rather than substantive debate, become the only form of opposition possible. Parliamentary debate has thereby become largely redundant. Without letting Indian politics degenerate like this, the author supports the proposed amendment so that our politicians can be allowed to publicly and legitimately debate political ideology, negotiate electoral prospect and be persuaded by ideas’.
The Tenth Schedule has laid down certain norms for keeping the flock of legislators of each party together, and the ‘whips’ in the hands of legislative party leaders reducing the hon’ble leaders and people’s representatives into shepherds and sheep. As the political parties invented mechanisms to fail this constitutional legislation, the judiciary played a very significant role in upholding the legality and morality of the law besides expanding its horizons to curb most treacherous practice of sudden political disloyalty. This Tenth Schedule whenever used enhancing the burden of courts. The political parties, instead of maintaining standards within the party with effective leadership, are resorting to litigation, begging the courts to decide the political issues, which they failed to settle. The Karnataka High Court is now engaged with the issue of political leadership of ruling party and manipulative politics of opposition party. This is another unfortunate development. It is not fair to blame judiciary for taking time to decide this tricky question within the frame work of constitution. Neither the Governor nor the Speaker is bona fide. Their moves are not fair. They desperately try to use Constitutional power to settle political scores and wreck political vengeance. In the process they just do not care the people’s will in electing a party to power, for whatever reasons that might be.
Dependents and Independents
There are a few nominated seats provided by the Constitution in legislative houses. Unless he is dependent, he cannot be nominated as legislator. Hence he can decide his loyalty. A nominated member of a house will be disqualified if he joins any political party after six months. That means law permits him to be loyal or disloyal to nominating party only for six months. (Section 2(3) of Tenth Schedule of Constitution of India)
It is wrong to say that there are no provisions for disqualifying independent members for defection from their ‘independent’ status. If an independent legislator joins a political party he would lose membership. Law mandates an independent legislator to maintain the independent status. He can choose to support any political party but should not attach himself to any. . This decision should be supported by the material placed on record. . In Jagjit Singh v State of Haryana[8] the legislators were elected as Members of Assembly as independent candidates. Later they joined a political party and news of their joining was reported in print as well as electronic media. That fact was allegedly admitted
by members in an interview given to a TV news channel. Thereafter those members were
disqualified from being members of Assembly by Speaker. It was challenged. The Supreme Court held: “when an independent member is alleged to have joined a political party the test to be applied is whether the member has given up his independent character on which he was elected. This has to be determined on appreciation of material on record and conduct of the member of the Speaker. No hard and fast rule can be laid down when the answer is dependent on facts of each case. The substance and spirit of anti-defection provisions are the guiding factors”. Disqualification of these members by speaker was upheld, despite the allegation of procedural defect in enquiry.
Supreme Court also clarified one more question in Jagjit Singh case: “Where a sole member of a political party in an Assembly joins another political party, he can not get protection of paragraph 3 of Tenth Schedule of the Constitution and will be disqualified from being member under paragraph 2 of the Tenth Schedule of the Constitution.”
Judicial interpretation by Courts :
In Kihota Hollohon vs. Zachilhu and Others[9] a question was raised that whether the right to freedom of speech and expression is curtailed by the Tenth Schedule, the Apex Court held that “The provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution.” In the present case few more issues were raised that whether Para 6 & 7 of the X schedule are constitutional or not? The Supreme Court held that to the extend that the provisions grant finality to the orders of the Speaker, the provision is valid. However, the High Courts and the Supreme Court can exercise judicial review under the Constitution. Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen. Para 7 seeks to change the operation and effect of Articles 136, 226 and 227 of the Constitution which give the High Courts and Supreme Court jurisdiction in such cases. Any such provision is required to be ratified by state legislatures as per Article 368(2). The paragraph was therefore held invalid as it had not been ratified.
In another case an issue was raised that whether a member can be said to voluntarily give up his membership of a Party , if he joins another party after being expelled by his old political party, it was held by S.C. that “Once a member is expelled, he is treated as an ‘unattached’ member in the house. However, he continues to be a member of the old party as per the Tenth Schedule. So if he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party.”[10]
In another case it was asked whether a Speaker can review his own decision to disqualify a member under the Tenth Schedule, it was held that The Speaker of a House does not have the power to review his own decisions
to disqualify a candidate. Such power is not provided for under the Schedule, and is not implicit in the provisions either.[11]
In Ravi S, Nayak v. Union of India[12] two issues were raised that whether the Speaker of a legislature is bound by the directions of a Court and Whether judicial review by courts extends to rules framed under the Tenth Schedule, it was held by the Hon’ble Apex Court that “the orders passed by a speaker are subject to judicial review and rules under the Tenth Schedule are procedural in nature. Any violation of those would be a procedural irregularity. Procedural irregularity is immune from judicial scrutiny.”
A very important issue regarding that when can a court review the Speaker’s decision making process under the Tenth Schedule was answered by the S.C. in Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors.[13], it was held that if the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties.
Recent Orders on Disqualification by the Speaker for Defection[14]:
· Shri Rajeev Ranjan Singh “Lalan” vs. Dr. P.P. Koya, JD(U), (January 9, 2009). Dr. Koya defied a party whip requiring him to be present in the House and vote against the Motion of Confidence for the government. He claimed he was too ill to be present in the House. The Speaker concluded that Dr. Koya abstained from voting by remaining absent, and the evidence of the ‘illness’ is not sufficient to conclude that he was so ill that he could not be present in the House.
· Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad, JD(U), (October 3, 2008). Shri Prasad defied a party whip requiring him to be present in the House. In his defence, he denied that any whip was issued or served. The Speaker held that in view of the fact that there is evidence to show that the whip had been delivered to Shri Prasad’s house, and had been duly received, it cannot be said that Shri Prasad had no knowledge of the whip.
· Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress, (September 10, 2008). The INC alleged that Shri Bishnoi often dissented from, and criticized the Congress government publicly, and had demanded the dismissal of the government in Haryana. The Speaker held that a person getting elected as a candidate of a political party also gets elected because of the programs of the party. If the person leaves the party, he should go back before the electorate.
· Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP, (January 27, 2008). It was alleged that Shri Akhlaque joined the Samajwadi Party in a public meeting. It was alleged that at this meeting, Shri Akhlaque had said that at heart, he had always been a member of the SP. The Speaker reasoned that there is no reason why news clippings and stories in the media would be untruthful. The Speaker therefore held Shri Akhlaque disqualified for having voluntarily given up membership of the BSP.
· The most recent case relating to anti-defection is from the Karnataka State Legislature where B.J.P. is the ruling party and 14 members of B.J.P. and 5 independent members sent a letter of discontent against the Chief Minister. A complaint was made against them and speaker disqualified them from their membership. The case is pending in the S.C.
Recommendations of Various Bodies on Reforming the Anti-Defection Law:
Ø Dinesh Goswami Committee on electoral reforms (1990)
§ Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.
§ The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
Ø Law Commission (170th Report, 1999)
§ Provisions which exempt splits and mergers from disqualification to be deleted.
§ Pre-poll electoral fronts should be treated as political parties under anti-defection law.
§ Political parties should limit issuance of whips to instances only when the government is in danger.
Ø Election Commission
§ Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
Ø Constitution Review Commission (2002)
§ Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term.
§ The vote cast by a defector to topple a government should be treated as invalid.
Conclusion:
Anti-defection law when it was passed, it aimed at bringing down the political defect but due to ever increasing political dishonesty and corruption this law never evolved properly and now a question have arose that ‘whether achieving the goals of this law a reality or a myth?’ Politicians found loopholes in this law and used it for their own benefit.
It is high time that a watchdog should be provided to our Parliament and there is a need for our constitutional pundits to revisit the issue to combat the menace of corruption and defection which has eroded the values of democracy.
Social activists like Anna Hazare and now public figures like Baba Ramdev are doing their best with the help of citizens and using the method of ‘non-violence’ and ‘satyagrah’ which were adopted by the father of the nation ‘Mahatma Gandhi’ to eradicate Britishers from the country and doing their best to make sure that our sleeping government should wake up and start taking steps towards eradicating political corruption and only this will help in achieving the goal which was set while passing this law. This law can also work if certain recommendations mentioned above are taken into consideration and an amendment be made in this law.
In the end I would like to quote that “ a government, for protecting business only, is about a carcass, and soon falls by its own corruption and decay,” so the government has a duty to stand and deliver now and not let this law turn into a myth.
[1] M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law, Pg. 2292
[2] M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law, Pg. 2053
[3] M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law, Pg. 2082
[4] RTI filed by PRS
[5] AIR 1987 Punjab & Haryana 263
[6] Ravi S. Naik and Sanjay Bandekar Vs. Union of India AIR 1994 SC 1558
[7] SSRN Article dated 27 May 2010
[8] AIR 2007 SC 590
[9] AIR 1993 SC 412
[10] G.Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996) 2 SCC 353
[11] Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative Assembly (1993) 2 SCC 703
[12] Supra at 3
[13] (2007) 4 SCC 270]
[14] Bulletin II of the Lok Sabha on different dates as mentioned
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