ANTI-DEFECTION LAW IN INDIA: IDENTIFYING THE UNCERTAINITIES

This article has been authored by Ridhima Sinha, a second year student at New Law College, Bharti Vidhyapeeth.

Anti-Defection Law in India

Disqualification of members of the Parliament also known as the anti-defection law is covered under the Tenth Schedule of the Indian Constitution. The anti-defection law was enacted in 1985 to weed out corruption from politics. The word defection generally means the abandonment of one's country or cause in favour of an opposing one. It is understood as a situation where a member belonging to a particular political party abandons his loyalty toward his own party and provides support to other parties. Defection is defined as either voluntarily giving up the membership of his party or abstaining or voting against the directives (political whip) of the party leadership on a vote in legislature.

Originally there existed no law relating to anti-defection in India as the multi-party system was not evolved in India to such a great extent. In 1967 Gaya Ram, a Member of Legislative Assembly from Haryana, changed his party thrice in a single day. To prevent such political defections, anti-defection law was enacted to bring stability in the Government.

The anti-defection law was added in the Constitution of India by the virtue of the 52nd Constitutional Amendment Act, 1985. Articles 101, 102, 190 and 191 were amended in the fifty second amendment and were added in the Xth Schedule of the Indian constitution. The Statement of Objects and Reasons of the Fifty-second Amendment explains the reasons for adding the Schedule to the Constitution. It is mentions that the evil of political defections has been a matter of national concern. On the off chance that it isn't battled, it is probably going to subvert the very establishments of our democracy rules system and the standards which continue it. This Bill is intended for prohibiting defection and satisfying the above affirmation. The Indian politics should not suffer because of defection and if measures are not taken to eradicate defection, the democracy in the country and the principles that help sustain it will be in danger.

In the 91st Constitutional Amendment Act, 2003, the size of council ministers and amendment in defection was made to strengthen the law. For the same, the law was amended to add that a party can merge with or into another party only if at least two-thirds of its legislators are in favour of the merger. The fraction was changed from 1/3rd to 2/3rd in the 91st Amendment so that legislators may change their party without the risk of disqualification. This was done to ensure that neither the members who decide to merge, nor would the ones who stay with the original party face disqualification as mentioned in paragraph 4(2) of the Tenth Schedule of the Constitution.

Judicial Review of Speaker’s Decision

In Kihoto Hollohan versus Zachillu and Others, a 28-year-old judgment of the Supreme Court, it has been said that judicial review isn’t available at a stage before the making of a decision by the Speaker/Chairman and also it is not permissible to interfere at an interlocutory stage of the proceedings. Hence judicial review cannot be done before the speaker has made its decision. It is available only after the speaker had made its decision.

It was said that the Speakers needs to decide Tenth Schedule disqualifications within a “reasonable period”. Disqualification petitions under the Tenth Schedule must be decided by Speaker within three months unless there are exceptional circumstances. This period was considered ‘reasonable’, as the ordinary life of the Lok Sabha or the Legislative Assemblies are simply five years. Therefore Constitutional courts cannot judicially review disqualification proceedings under the Tenth Schedule of the Constitution until the Speaker makes a final decision on merits.

Rule 7 restricts the jurisdiction of courts in any matter connected with disqualification of a member of a House and it states that it is outside the jurisdiction of all Courts including the Supreme Court under Article 136 of the Constitution and High Courts under Article 226 and 227 of the Constitution to review the choices of the Speaker in this regard. This can have terrible consequences. The legislature in a manner attempted to limit the intensity of the interference of the judiciary in matters related to the Tenth Schedule given under the Constitution.

After Kihoto Hollohan versus Zachillhu case (1993), the Supreme Court proclaimed that the choice of the Presiding Officer isn't conclusive and can be addressed in any Court. It is subject to judicial review provided that the Presiding Officer of the respective House is proved to have taken decision against any of the below mentioned factors:

a) violation of constitutional mandate

b) mala fides

c) non-compliance with rules of natural justice

d) perversity.

The law at first expressed that the choice of the Presiding Officer isn't subject to judicial review but later this condition was struck down by the Supreme Court, and hence appeals were allowed against the Presiding Officer’s decision in the High Courts and Supreme Court. However, it was held that there may not be any judicial intervention until the speaker gives his order.

Analsying the Recent Rajasthan Political Crisis

The Kihoto Hollohan judgment is notable in the case of the overthrown Rajasthan Deputy Chief Minister Sachin Pilot and other 18 MLAs, who were issued notice under the anti-defection law after the ruling Congress sought their disqualification. In the Rajasthan High Court, the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification was challenged. Conferring to Paragraph 2 of the Tenth Schedule, a member of a House belonging to any political party shall be disqualified for being a member of the House:

1) If he has voluntarily given up his membership of such political party; or

2) 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.

The MLAs have, however, contented that they cannot be made liable for disqualification just because they were disagreeing with the decisions and policies of some leaders. It has also been pleased that this provision infringes their right to freedom of speech as a member of the legislative Assembly.

The reason for limiting the role of courts in ongoing defection proceedings as explained by the bench is that the “office of the Speaker is held in the highest respect and esteem in parliamentary traditions.” He is said to be the embodiment of propriety and impartiality.” Judiciary intervening in between the decision would make the Speaker’s role less significant in making the decision, while the speaker is to be considered of great importance and hence Courts can only come into play after the speaker has made its decision.

Thus, though in the present case related to the Rajasthan Political Crisis, the High Court has stopped the Speaker from taking any further action against the MLAs with respect to the Tenth Schedule of the Constitution, the Supreme Court has also denied to keep a stay on the decision of the Rajasthan High Court. The pertinent question to be addressed by the Rajasthan High Court and the Supreme Court in this regard is to decide as to when does the Judiciary get the right to intervene in such disqualification proceedings as these essentially form a part of parliamentary proceedings which cannot be challenged in the Court of Law unless a decision is made by the Speaker. The manner in which this debate shall be brought to rest by the Courts would prove to be a landmark decision in itself.

Conclusion

Ideally, Courts can not intervene before the speaker has given a decision. The anti-defection law aims to provide a steady government by guaranteeing that the legislators do not switch sides. However, this law also restricts a legislator from voting with his integrity, judgement and interests. This hampers the function of the legislature by ensuring that members vote based on the decisions taken by the party leadership, and not what their citizens would like them to vote for.

As every law has its pros and cons, anti-defection laws too come with their own pros and cons. Looking at the positive side, anti-defection laws try to bring about a sense of loyalty of the members towards their own party. On the other side, anti-defection laws tend to restrict the freedom of speech and expression of the members by preventing them from expressing any opposing opinion in relation to party policies. Political parties give a direction to MPs on how to vote on most issues, irrespective of the nature of the issue.

Another demerit of this law is that it reduces the accountability to the people by preventing the members of the political parties to change their parties. The provision relating to mergers can be amended whereby it exempts members from disqualification if they defect in large numbers and thus it must be changed to make the reason for defection as the basis for exemption from disqualification. The introduction of Schedule X in the Constitution attempted to bring in a wide-ranging legislation that would try to storm the threat of defection. While the law was successful in this aspect to a reasonable degree, there were certain uncertainties.