Anti Defection Law in India: 10th Schedule

Introduction:

Democracy is one of the basic structures of the Constitution.^[1] Horse-trading is a barrier to the smooth functioning of democracy. Then, we know, we have to remove all the roots of barriers and that was ‘defection’. When a member of either house or state legislature disobeys the orders given by their respective party whips, the anti-defection laws come into the picture. Pre-independence period, during Montford reforms, Shyam Lal Nehru defected and joined the British side. Pandit Moti Lal Nehru who was the leader of the legislative assembly criticize this behavior of Shyam Lal Nehru. Thus, Shyam Lal Nehru later was expelled.^[2] This was the first case of defection in Indian soil.

In the 1970s-80s, politics, and democracy suffered a lot of instability. The term “Ayaram Gayaram ” was coined in 1967. Once a Haryana MP named Gaya Lal defected thrice in a day. The reasons for defection are simple i.e., for a reward of office or monetary benefits or any other consideration. There was no law to curb this corruption process, later the situation became worse. And, the need for the law was realized. Article 102(2) & Article 191(2) and 10th schedule was introduce by the 52nd Constitutional Amendment Act. Throughout this article, we will explore the analysis of act, constitutional challenges, case laws, the speaker’s role, and politics and will find the best replacement required in the procedure.

Important Provision of 10th Schedule

We understood the rationale behind this act. And, in case, if there is a question of law rising on this act. The objective and reasons are kept in mind. Many complications arose after the enactment of this amendment. This law seeks more importance in a situation like a hung parliament. The Bill was passed by LS and RS on 30 and 31 Jan 1985 respectively. It gained presidential assent on 1 March 1985. Let us see, what the act says.

S.1 states the meaning of House, legislature party, and original political party.

What actions attract this Law?

S.2 is very important. It states the disqualification on grounds of defection. S.2(1)(a)^[3] says that an elected member of any political party if voluntarily gives his membership, then he/she shall be disqualified. S.2(1)(b) says that if an elected member of any political party votes contrary to the direction given by his/her party whip without taking prior permission (15 days before the voting session at the floor of the house) or abstains from voting in the House. In the case of a nominated member, the person can be disqualified if he/she joins a political party within six months of the oath of the seat. In the case of an independent member, if he joins a political party shall be disqualified.

What are the exceptions?

1. u/s. 5^[4] says that speaker, deputy speaker, chairman, deputy chairman of the house of parliament or legislative house, state legislative council shall not be disqualified if:
2. On election to post, they voluntarily give up and don’t join any other political party when holding the post.
3. Rejoin the original party after they cease to hold the office.
4. In the 91st constitutional amendment act 2003, the third paragraph was omit which says that a split with 1/3rd members of any political party won’t amount to defection. This was to correct the past mistake. Let us take an example, if a political party is of 30 members, 1/3rd of them i.e., 10 members defect, won’t amount to defection as per past law. It would be easy to buy 10 members for monetary or any positional benefits. To avoid this, u/s. 4 of exception in merger, 1/3rd was replace by 2/3rd.

Challenges on Constitutional Validity

Defection laws introduce to check rampant activities and restrict parliamentarians to join rival political parties. After 12 years of the 52nd amendment, the petition was filed for a check of constitutional validity. That was the famous Kihoto Hollohan case^[5] in which the petitioner contended that it violates article 105 and 194, which gives powers to parliamentarians to freedom of speech and protects him from court matters. The act curbs down the individual voice and has to work what chief whip directs him to do.

It abstains to vote contrary to the direction given by whip. The court says that powers of freedom of speech are not absolute and have reasonable restrictions. The petitioner contended that it is violative of 105(2) [for central legislature] and its correspondence article 194 (for state legislature) states that anything no members shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee.

The SC on this said that the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any “Court” for anything said or any vote given by him in Parliament. The petitioner contended that the para 7 of the law is violative of powers of court for judicial review. Judicial review is protect under article 136, 226, and 227. The court said that the speaker/chairman in these matters acts as a tribunal. Also, the decision of the presiding officer is subject to judicial review. Court cited “Finality is a good thing but justice is better.” from Prof. Wade in Administrative law 6th edition, page 720. Hence, para 7 of the schedule was struck down by the court.

The judicial review shall not exercise a stage before the making of the decision of presiding officer, an exception will in cases where disqualification or suspension is impose during the pendency of proceedings, and such disqualification is likely to have grave, immediate and irreversible repercussions and consequences.

Hence, the 10th schedule declare to be constitutional because it restricts horse-trading and preserves the quality of democracy.

What exactly ‘voluntarily giving up’ means?

What if I say ‘Resignation’ and ‘disqualification’ are the same. Sounds weird? Yes, Resignation is a voluntary act while disqualification is the outcome of violating a law. But, in both cases, consequences are the same i.e., Resigning the membership of a particular party.

In Ravi S. Naik v. Union of India^[6], the Hon’ble SC held that the conduct of the member is enough to draw an inference regarding him/her giving up the membership voluntarily. The presiding officer of the house has to draw the reasonable inference from the conduct of the legislator. I agree with SCJ here, because if a member of a particular political party attends a rally/campaign and promotes the opposition party. Then the pain take in passing/enacting anti-defection law could be in vain. In the case of G. Viswanathan v. The Hon’ble Speaker of Tamilnadu^[7], held that the act of voluntarily giving up may be either express or implied. To establish the proper functioning of parliamentary democracy, the position of the opposition party must be equally important to the ruling party.

Role of the Presiding Officer

The speaker enjoys a prestigious position. He/she is the chief officer of the LS or state legislature. Also, the 10th schedule empowers him. Note 6 of the 10th schedule states that if any question of defection arises, the decision of the speaker or chairman shall be final. Later, in the Kihoto Hollohan case, the decision of the presiding officer was subject to judicial review. It is part and parcel of his jurisdiction to decide the questions raise by the complainant and defendant (the one who sought to be disqualify).

In the case of Rajendra Singh Rana And Ors vs Swami Prasad Maurya And Ors^[8], the court observed that on the scheme of Articles 102 and 191 and the Tenth Schedule, the determination of the question of split or merger cannot be divorced from the motion before the Speaker seeking a disqualification of a member or members concerned.

In the case ofKashinath G. Jalmi v. The Speaker^[9], it was observed that the speaker acting as a tribunal in the tenth schedule has no authority to review his decision. Many circumstances were incurr where certain allegations of political biases and considerations. Speaker is a political being and guardian of democracy. He is affiliated with a particular party. Then, the question in front of us is can the speaker become partial and give wage decisions. It will be an insult to put questions on the prestigious post.

Even SC in the recent case of Keisham Meghachandra Singh v. Speaker of Manipur^[10], the court opined that it is time that parliament reconsiders whether the disqualification matters ought to be entrusted to a speaker as a quasi-judicial authority. Court recommended that the speaker should be replaced with a retired SC judge or retired chief justice of the high court.

What about those members who are suspended or expelled?

In the case of G. Viswanathan v. The speaker of Tamilnadu^[11], held that the candidates who are expelled from the party shall not be declared disqualified by the 10th schedule. The 10th schedule doesn’t have any clause regarding the expelled or suspended members. However, if expelled members disobey the direction given by party whip or voluntarily joins another political party, he will attract defection in such cases. It says that the court won’t interfere in the internal matters of the party. The court assumes that the expelled member belongs to the original party.

Is there a time foundation on the speaker?

There is no concrete answer till now, because the 10th schedule fails to describe the time limit for taking decisions on disqualification. Sometimes, the speaker used to delay in giving the verdict. And, the member who ought to be defector votes in opposition or gains ministry position in opposite parties. And, the speaker still waits and tactfully delays to answer in such cases. This is causing harm to democracy itself. In 2015, the Hyderabad high court dismissed the plea which seeks relief for the delay in the speaker’s decision. HC ruled that it cannot interfere before the speaker takes a decision.^[12]

Later, the vice president (Chairperson of Rajya Sabha) pass an order to disqualify two JD(U) members and recommend that all such petitions should be decide within three months. Also, recently SC in judgment, the decision by the presiding officer should be declare within a reasonable time. What is a reasonable time, the same case explaine that reasonable time is decide on the facts and normally it should be within 3 months from the date of the petition.

I think that the period of 3 months is long and defectors (if the evidence is enough to prove) should not be a member of parliament even for a single day. The period of 3 months is very generous to him.

In the UK, the members are free to cross the floor and switch parties. Same in the case of the US, Canada, and Australia. Anti-defection laws are prevalent in 23 commonwealth countries.^[13] In Jammu and Kashmir, the amendment in J&K Representation of People’s Act, 1957 was passed in 1979. In a case where the question arises whether the member has disqualify or not, the question shall be referr for the decision of the leader of the legislature party and his decision shall be final.^[14]

Merits of Anti-defection law:

1. Ensure the stability in democracy.
2. Stops Horse-trading.
3. Limits the corruption of politicians. (“Limits”, because it cannot ensure zero-corruption.)
4. If a member of a party contests the election with a particular party ticket, then after electing disobeys the whip and works against the manifesto of the party, this law then disqualifies the respective defector.

Demerits of Anti-defection law:

1. In the name of stability. it curbs the dissenting individual opinions.
2. Promotes High Command Culture.
3. Makes the presiding officer more power centric.
4. No time boundation for decisions in disqualification cases.

Conclusion and Suggestion

Imagine if there were no anti-defection laws in India, the present scenario shall be more difficult. I think the debate of party-democracy and candidate-democracy will be long-lasting. If we take a survey of people, most of them vote in the name of the party irrespective of taking considerations of the working of local representatives. This is a really unfortunate thing. If people continue this thing, then in the future we will be able to see more unstable (Don’t even know about their ideologies and practices corruptions) politicians.

In India, there should be education criteria in qualification of contesting politics. It will ensure the enrolls of worthy politicians in the house of parliament. Speaker being a political being, he cannot be always neutral in his decisions. I think an independent tribunal should take place instead of a speaker to ensure unbiased decisions. I think the concept of merger should have vanished because it doesn’t completely uproot horse-trading. Defection is a political evil and should be vanish with its root.

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References:

^[1] Bennett Coleman And Company Ltd. … vs Union Of India, AIR 1986 BOM 321

^[2] Historical background of anti-defection law, Shodhganga, http://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/205730/10/10chapter%202.pdf

^[3] S.2(1)(a) of tenth schedule, Constitution of India.

^[4] S.5 of tenth schedule, Constitution of India.

^[5] Kihoto Hollohan vs Zachillhu And Others, 1992 SCR (1) 686

^[6] Ravi S. Naik vs Union Of India, 1994 AIR 1558.

^[7] G. Viswanathan vs The Hon’Ble Speaker Tamilnadu, 1996 AIR 1060.

^[8] Rajendra Singh Rana And Ors vs Swami Prasad Maurya And Ors, (2007) 4 SCC 270.

^[9]  Kashinath G. Jalmi v. The Speaker, AIR 1993 SC 1873.

^[10] Keisham Meghachandra Singh v. Speaker of Manipur, 2020 (2) SCALE 329

^[11] G. Viswanathan v. The speaker of Tamilnadu, AIR 1996 SC 1060

^[12] HC dismisses petitions on defection issue, India Today (Sept 28, 2015, 21:45 IST), https://www.indiatoday.in/pti-feed/story/hc-dismisses-petitions-on-defection-issue-473839-2015-09-28

^[13] S, Sanal Kumar, Anti-Defection Laws in India: Its flaws and its falls, Bar and Bench (Apr 1, 2019, 9:08 AM IST), https://www.barandbench.com/columns/anti-defection-laws-in-india-its-flaws-and-its-falls

^[14] Paragraph 6 of Seventh Schedule of Constitution of J&K.