Introduction:
To prevent political defection, Anti-Defection law was inserted in the Tenth Schedule of the Constitution of India in 1985. In the process, legislators may be disqualified on the grounds of defection by the Presiding Officer of a legislature, on the petition by members of the house.[1] There is not one but a number of instances where petitions for disqualification were initiated, one such instance could be seen recently in Rajasthan. Turf war in/between the political party has been witnessed over the years, and latterly in Rajasthan, a leader of Congress, Sachin Pilot rebelled against his own party is the talking point.
Implementation of Anti-Defection Law
Anti-defection law was introduced to address the lacunae in political parties. A need for this law was necessitated when Haryana MLA Gaya Lal changed his political party thrice in a day in 1967, so to prevent such defection anti-defection law was inserted in the Tenth Schedule of the Indian Constitution. [2]
Four grounds on which a legislator could be disqualified[3]:
1. If the legislator voluntarily gives up the membership of his party.
2. If in the house, a legislator votes contrary to the direction of his political party.
3. If the legislator joins the other party after election.
4. If the nominated candidate joins a party six months after he becomes a member of legislature.
Here voluntarily giving up party cannot be interpreted as resignation, as emphasised in the Ravi Naik v. Union of India(1994), that “the word ‘Voluntarily given up his membership’ is not synonymous with ‘resignation’ and has a wider connotation. A person may voluntarily give up his membership of that party. Even in the absence of a formal resignation from the membership, interference can be drawn from conduct of a member that he has voluntarily given up his membership of the political party to which he belongs”. There is an exception where legislators could escape the defection while voluntarily giving up the party, which is provided in law that a party who wants to ‘merge’ with or into another party should have at least two-third legislators in favour of the merge, then the members will not face disqualification.
Originally in paragraph 3 of the tenth schedule a term ‘split’ was recognized which defines, one-third members of the legislature can join or form another party, but in 2003 amendment ( which was the last amendment of anti-defection law) one-third split provision was deleted and it was said by the committee which examined the bill headed by Pranab Mukherjee that “the provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further, it is also observed that the lure of office of profit plays a dominant part in the political horse-trading resulting in a spate of defections and counter defections”.[4]
The presiding officer of the house is the chief in deciding the plea of disqualification and the decision of Presiding officer is subject to judicial review and there may not be any intervention by the court until Presiding officer gives his order, as held by Supreme Court in 1992.[5] Law does not provide any time-period for Presiding officer to decide the disqualification plea.
Rajasthan Political Crisis
Earlier in the month of July 2020 when the speaker of Rajasthan assembly C.R Joshi issued the notices regarding disqualification of Sachin Pilot and 18 other Congress MLAs, Sachin Pilot challenged the validity of notices issued to them in the High Court and High Court requested C.P Joshi to postpone the action on disqualification till July 24.
Contention in the petition was “Mere expression of dissatisfaction or disillusionment against the party leadership cannot be treated to be conduct falling within the clause of 2(1)(a) of the tenth schedule of the Constitution of India(Voluntary giving up of party)”.[6]
The Background Story
Deputy Chief Minister Sachin Pilot made his way to Delhi with a number of other members and the rumours started spreading that he is moving to Bharatiya Janata Party (BJP), and Chief Minister Ashok Gehlot accused BJP of overthrowing his government.
Clarifying the stance of Sachin Pilot, Lokendra Singh said “Rajasthan Deputy CM & Congress leader Sachin Pilot not to attend Congress Legislature Party meeting scheduled to be held on Monday. Mr Pilot says Ashok Gehlot Govt in minority after over 30 Congress and some independent MLAs have pledged support to Sachin Pilot”.[7]
19 MLAs including Sachin Pilot resisted a party whip to attend two Congress legislature party meetings, so speaker CP Joshi issued notices to them. One of the grounds of disqualification is that disobeying the directives of the party leadership or defying the party whip on any matter by legislator then he will be subject to disqualification.
Present Scenario
When the petitioners (19 MLAs) challenged the validity of notices in Rajasthan High Court and the High Court requested the Speaker to postpone the action, then in Supreme Court, CP Joshi challenged the validity of the order passed by High Court.
Harish Salve and Mukul Rohtagi representing Pilot camp said if the legislator raises questions on the working of the chief minister, it is not revolt, it is freedom of expression and raising voices is the right so the notice should be immediately cancelled. [8] In a further proceeding in Supreme Court, senior advocates Kapil Sibal and Sunil Fernandes who are representing Speaker’s office said that their client wants to withdraw the case and Supreme Court found no problem in withdrawing the petition of Speaker which challenges Rajasthan High Court order.[9] Confidence motion was then moved in the Rajasthan assembly and Gehlot government won by voice vote and Sachin Pilot sacked from the position of Deputy Chief Minister.[10] Now Congress Party to constitute three members committee to resolve the matter raised by Sachin Pilot. KC Venugopal, Ahmed Patel, and Ajay Maken are the members to look after the grievances of Sachin Pilot.
Conclusion
Anti-defection law was introduced to mitigate the instability in the political party but lately, its usage has been questioned by many legislators. As held in Kihoto Hollohan’s case 1992 that judicial review cannot be available at any stage prior to the decision of Presiding officer, but intervention by the judiciary in the present case makes it unclear about the role of Presiding officer who has the sole authority to decide the defection matter. What if the judgement comes out after the session ends? The Judiciary needs to reconsider its role in this matter. On the other hand when considering the crisis in Rajasthan, if Sachin Pilot and his camp did not file a petition and Rajasthan High Court did not intervene then the Speaker has all power to disqualify them as they defy the party whip.
References:
[1] Vibhor Rehlan, The Anti-Defection law Explained, PRS LEGISLATIVE RESEARCH (Dec 6, 2017), https://www.prsindia.org/theprsblog/anti-defection-law-explained
[2] Sakshi Rewaria, Analysis of Anti-Defection laws in India, LATESTLAWS.COM (Jul 26, 2018), https://www.latestlaws.com/articles/analysis-of-anti-defection-laws-in-india-by-sakshi-rewaria/
[3] Roshni Sinha and Prachi Kaur, Anti-Defection Law Intent and Impact, PRS LEGISLATIVE RESEARCH ( Dec 2019), https://www.prsindia.org/sites/default/files/parliament_or_policy_pdfs/Anti-Defection%20Law%20Intent%20and%20Impact_0.pdf
[4] Chakshu Roy, Explained: The limits of anti-defection, PRS LEGISLATIVE RESEARCH (July 25, 2019), https://www.prsindia.org/media/articles-by-prs-team/explained-limits-anti-defection
[5] Supra note 1.
[6] Apoorva Mandhani, Here’s what the anti-defection law challenged by Sachin Pilot in Rajasthan HC says, THE PRINT ( July 24, 2020), https://theprint.in/theprint-essential/heres-what-the-anti-defection-law-challenged-by-sachin-pilot-in-rajasthan-hc-says/467396/
[7] Explainer:How the Pilot vs Gehlot fight in Rajasthan is Different from Congress being toppled in MP, SCROLL.IN (Aug 30,2020), https://scroll.in/article/967417/explainer-how-the-pilot-vs-gehlot-fight-in-rajasthan-is-different-from-congress-being-toppled-in-mp
[8] Sharat Kumar, Ashok Gehlot vs Sachin Pilot: What has happened in Rajasthan High Court so far, INDIATODAY (July 20,2020) https://www.indiatoday.in/india/story/ashok-gehlot-vs-sachin-pilot-what-has-happened-in-rajasthan-high-court-till-now-1702365-2020-07-20
[9] Krishnadas Rajagopal, Rajasthan Political Crisis| Supreme Court allows Speaker to withdraw plea against High Court order, THE HINDU (July 27, 2020), https://www.thehindu.com/news/national/rajasthan-political-crisis-supreme-court-allows-speaker-to-withdraw-his-plea-against-hc-order/article32200860.ece
[10] Rajasthan floor test: Ashok Gehlot wins the confidence vote; state assembly to reconvene on 21 August, FIRSTPOST (Aug 14, 2020), https://www.firstpost.com/politics/rajasthan-floor-test-ashok-gehlot-govt-wins-confidence-vote-state-assembly-to-reconvene-on-21-aug-8707961.html
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