NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL (M.P.)

Constitutional Law-I PROJECT onWhat is Anti-Defection law?

Submitted to: Professor Kuldeep Kaur Submitted by:Gaurav Sharma2012 BALLB (Hons.) 39CONTENTS

DEFINITION AND BACKGROUND............................................................. 3THE ANTI-DEFECTION LAW...................................................................... 4ANALYSIS OF PROVISIONS OF SCHEDULE X....................................... 5PARA 2 AND ITS CONSTITUTIONAL VALIDITY................................... 6 PRECEDENTS ESTABLISHED BY THE JUDICIAL PRONOUNCEMENTS..................................................................................... 8RECOMMENDATIONS.................................................................................. 9CONCLUSION................................................................................................ 11

DEFINITION AND BACKGROUND Defection may be defined as abandonment of loyalty, duty or principle or of ones leader or cause. In parliamentary political life the term has come to connote change of political affiliation or allegiance by the member of the legislature. The traditional term for the latter has, however, been floor-crossing which had its origins in the British House of Commons where a legislator was supposed to have changed his party allegiance when he crossed the floor and moved from the Government to the Opposition side or vice versa. The phenomenon of defection was not something altogether unknown to the older democracies like Great Britain. Political stalwarts like William Gladstone, Joseph Chamberlain, Winston Churchill and Ramsay McDonald were known to have changed their party allegiance at one time or another-some of them even more than once. Likewise in Canada, Australia and the USA, there had been instances of politicians defecting from one party to another. It is however interesting that the need or the desirability of banning defections by law or through a constitutional provision was not considered in any of the western democracies. The only countries to pass an anti-defection laws have been four countries in South Asia which is India (1985), Pakistan (1997), Sri Lanka (1978) and Nepal (1997). In all the four countries the anti defection laws proved ineffective. In India, the result was a larger number of defections, with groups instead of individuals defecting. In Nepal also, group defections and toppling of governments could not be prevented. In Pakistan, the operation of the law was stayed by the court and subsequently democracy itself was toppled by military dictatorship. Today Anti-Defection law is also practiced in Kenya, South Africa, Singapore etc. 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. Indian politics had seen defections right from the pre-independence Central Legislative Assembly and Provincial autonomy days. The year 1967 however ushered in an unprecedented era of political instability and horse-trading preceding and following the formation of coalition governments in several States. The formation of such coalition governments was most often a marriage of convenience.

THE ANTI-DEFECTION LAWThe Anti- Defection Law was passed in 1985 through the 52nd Amendment to the Constitution, which added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat the evil of political defections. There are several issues in relation to the working of this law which needs to be discussed. Does the law, while deterring defections, also lead to healthy intra-party debate and dissent? Does it restrict representatives from voicing the concerns of their voters in opposition to the official party position? Should the decision on defections be judged by the Speaker who is usually a member of the ruling party or coalition, or should it be decided by an external neutral body such as the Election Commission?The major provisions of Schedule X of Indian Constitution areDisqualification a) If a member of a house belonging to a political party:i) Voluntarily gives up the membership of his political party, orii) Votes or does not vote in the legislature contrary to the directions of his political party. 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.b) If an independent candidate joins a political party after the election.c) If a nominated member joins a party six months after he becomes a member of the legislature.

Power to Disqualifya) The Chairman or the Speaker of the House takes the decision to disqualify a member.b) 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.ExceptionMergerA person shall not be disqualified if his original political party merges with another and: He and other members of the old political party become members of the new political party, or He and other members do not accept the merger and opt to function as a separate group.This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.Analysis of Provisions of Schedule X Para 2-Disqualifications The section that would verily form the crux of this legislation is paragraph 2 that gives the circumstances when a member would incur disqualification from the House. This para would be dealt with in detail under this article, primarily for two reasons- one, that it forms the quintessence of this law and hence, a comprehensive understanding of this provision is crucial and two, because the judiciary has been called upon a number of times to interpret its provisions and it has therefore shed some light on the manner in which these provisions should be construed.

Therefore, we see that the above para sets out when a member would incur a disqualification (under para 2 (1) (a) and (b)). The provision seems to be fairly clear when it provides two cases wherein the disqualification would apply- first, when there is a voluntarily giving up of seat by the member and second, when he votes (or abstains from voting) contrary to the directive issued by the party. Now, two important questions arise in this regard- What would constitute voluntarily giving up of seat? What is the full import of 2 (1) (b) wherein voting/abstention from voting against the party?At the first instance, the phrase voluntarily giving up of seat sounds pretty straightforward. It is giving up of the seat in the House by ones own will. However, the Courts have given certain pointers on its interpretation. In Ravi Naik v Union of India , the Supreme Court says, 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 rendered his resignation from the membership of that party. Even in the absence of a formal resignation from 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.

Referring to these words, in the case of Rajendra Singh Rana v. Swami Prasad Maurya and Others[footnoteRef:2] the Supreme Court held that the act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government, itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members had got elected. In this case, in the 2002 Assembly elections in the State of Uttar Pradesh, a coalition government was formed since none of the parties secured a majority. In the middle of 2003, a unanimous decision was taken by the Cabinet to dissolve the Assembly. After the Cabinets decision and before the resignation of the leader of the coalition Government (then, Mrs. Mayawati, belonging to the Bahujan Samaj Party [BSP]), thirteen members from the BSP met the Governor and requested him to invite the leader of the opposite party (then, the Samajwadi Party [SP]) to form the Government. It was in this context that the Court held the above. [2: Rajendra Singh Rana v. Swami Prasad Maurya and Others (2007) 4 SCC 270]

Para 2 and its Constitutional validity The constitutional validity of paragraph 2, especially the clause providing that the member would incur a disqualification if he votes/abstains from voting against the party directions, has been challenged. The Supreme Court has analyzed this point in detail in Kihota Hollohan v Zachillhu[footnoteRef:3] . Explaining its position, the court said, there are certain side effects and fall out which might affect and hurt even honest dissenters and conscientious objectors, but these are the usual plus and minus of all areas of experimental legislation. In these areas, the distinction between what is constitutionally permissible and what is outside it is marked by a hazy gray line and it is the Courts duty to identify, darken and deepen the demarcating line of constitutionality [3: Kihota Hollohan v Zachillhu AIR 1993 SC 412]

Holding that the provisions of the Tenth Schedule are perfectly valid, the Court went on to say, That the Paragraph 2 of the Tenth Schedule of the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected members of the Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended. The provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 195 of the Constitution. Other provisions regarding disqualifications under this head are contained in paragraph 3 (that was deleted by the 2004 Amendment to the Constitution), which provided for a case wherein a split takes place in the party. A number of cases have been decided on this subject. Paragraph 4 dealt with a disqualification in cases of merger whereas paragraph 5 sets out certain exemptions in favour of the Speaker or the Chairman of the Houses of Legislature.

Other provisions of Schedule X Having set out what would entail a disqualification from the House, the Schedule now goes on to clarify, in paragraph 6, who the deciding authority would be in case a question regarding the incurrence of a disqualification. It says that any such question would be decided by the Speaker or the Chairman of the House and his decision in this regard would be final. An interesting question that the Court was called upon to decide with regard to this provision was whether the proceeding before the Speaker in the nature of a judicial one, and whether the office of a Speaker in this regard could be termed as a Tribunal? Answering both the questions in the affirmative the court said, It is therefore inappropriate to claim that the determinative jurisdiction of the Speaker of the Chairman in the tenth Schedule is not a judicial power and is within the non-justiciable legislative area. Speaking about how the Speakers authority could be a Tribunal, the Court elaborated thus, Where there is a lis -an affirmation by one party and denial by another-and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a Court. In this instant case, the Court has taken recourse to many previous judgments and commentaries to explain this point. In Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors. , the Andhra Pradesh High Court had to decide, inter alia, the question of whether the Speaker, while exercising jurisdiction, can decide whether or not a Legislator belongs to a particular Legislature party. Holding that a Speaker could indeed decide thus, the Court said that if, in deciding the question of a members disqualification depended upon an answer to which political party had set such member up and whether or not he belonged to such party, he should be allowed to decide such question. In the words of the Court, there is nothing in paragraphs 1, 2, and 6 of the Tenth Schedule which fetters exercise of jurisdiction by the Speaker to decide this question. Paragraph 7 of the Schedule bars the jurisdiction of courts in any matter connection with the disqualification of a member of House under this Schedule. Of course, this does not exclude Courts intervention under articles 32, 226, 227, 136 under the Constitution. This position was made very clear by the Supreme Court in Kihoto Hollohans case. Citing various authorities, the court analyzed the meaning of the word final in the context of such clauses and said, There is authority against the acceptability of the arguments that the word final occurring in paragraph 6 (1) has the effect of excluding the jurisdiction of the courts in articles 136, 226, 227. The final provision in this legislation gives the Speakers of the House to make rules for giving effect to any provision contained in the Schedule. In pursuance of this power, the states of Goa, Maharashtra, Gujarat, Haryana, Bihar, Kerala, Karnataka and others and also the Houses of the Parliament, both the Rajya Sabha and Lok Sabha have made rules in this regard. These Houses would be bound by the rules contained in the Schedules as also the ones that have been enacted specially for them.

Precedents established by the judicial pronouncementsKihota Hollohon v. Zachilhu and Ors.[footnoteRef:4] The main issues of this case were whether the right to freedom of speech and expression is curtailed by the Tenth Schedule, whether paragraph 7 of the Schedule barring the jurisdiction of courts in cases of disqualification is constitutional and whether paragraph 6 of the Tenth Schedule granting finality to the decision of the Speakers /Chairmen. The Supreme Court held that the provisions do not subvert the democratic rights of the elected members in Parliament and state legislatures. It does not violate any right or freedom under Articles 105 and 194 of the Constitution. On the constitutionality of the paragraph 7 the court held that the paragraph 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. On the issue regarding paragraph 6 the Court held that to the extent that the provisions grant finality to the orders of the Speaker, the provision is valid. However, the High Courts and 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. [4: Supra 2]

Ravi S Naik v. Union of India[footnoteRef:5] The issues raised were whether only resignation constitutes voluntary giving up membership of a political party, whether the Speaker of a legislature is bound by the directions of the Court and whether judicial review by courts extends to rules framed under the Tenth Schedule. The Apex Court held that the words voluntary giving up of membership have a wider meaning. An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party. On the second issue the court cited the case of Kihota Hollohon where it had been said that the Speaker while passing an order under the Tenth Schedule functions as a Tribunal. The order passed by him would therefore be subject to judicial review. On the third issue in the case the Court held that the rules under the Tenth Schedule are procedural in nature any violation of those would be a procedural irregularity and procedural irregularity is immune from judicial scrutiny. [5: Ravi S Naik v. Union of India AIR 1994 SC 1558]

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 party? This question arose in the case of Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly[footnoteRef:6] where the Supreme Court held that once a member is expelled he is treated as an unattached member in the house. However, he continues to be 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. [6: Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996) 2 SCC 353]

When can a court review the Speakers decision making process under the Tenth Schedule? The Supreme Court addressed this question in Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and Ors.[footnoteRef:7] the court 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. [7: Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and Ors. (2007) 4 SCC 270]

In the case of Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative[footnoteRef:8] Assembly the Supreme Court decided on the question whether a Speaker can review his own decision to disqualify a member under the Tenth Schedule. The Court 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 under the Schedule and is not implicit in the provisions either. [8: Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative (1993) 2 SCC 703]

Recommendations by various bodies on reforming the Anti-defection lawDinesh 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 aadvice of the Election Commission.Halim Committee on Anti-Defection law (1998) The words voluntarily giving up membership of a political party be comprehensively defined. Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members. The term political party should be defined clearly.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 the anti-defection law. Political parties should limit issuance of whips to instances only when the government is in danger.

Election CommissionDecisions 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 policy 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

The introduction of Schedule X in the Constitution attempted to bring in a comprehensive legislation that would assail the menace of defection. While the law has succeeded in this aspect to a reasonable degree, there were certain ambiguities. The Courts of the land have done a fair job in expounding the stance by applying the law to particular facts and circumstances. Nevertheless, very few general propositions have been laid down which have a universal application. Thus, there seems to be considerable scope for judicial interpretation, one that may give further clarity on the law and may bring in a wider range of cases within the umbrella of this legislation. The harms caused by paragraph 2(1)(b) are an inherent by-product of its wide phraseology and application. Fortunately, this provision has not enjoyed an unblemkished constitutional existence. The validity of the said provision was specifically challenged in the Kihota Hollohon judgement. Here too the arguments of dissent and debate being stifled were raised and discussed before the Court. The judgement looked at the subversion of the constitutional rights of the parliamentarians and aimed at providing a limited contour to the application of the impugned provision.

BIBLIOGRAPHY www.prsindia.org www.manupatra.co.in www.indialawjournal.com www.indiankanoon.org

12