Anti Defection Law

•What is the Anti-Defection Law? Why India needed an Anti Defection Law? •What are the grounds for disqualification under the Anti-Defection Law's Articles 102 (2) and 191 (2)? Merits and Demerits of this law. •What were the major loopholes? Experience so far. International scenario on Anti Defection Law. •Under which circumstances is a split in a party not considered a 'defection'? •What are the powers of a party whip under the Constitution in case of a defection? •What are the options before a disqualified elected member? Petitions Disqualification. Procedure. •Who is the deciding authority? Judicial interpretation by Courts. Views of some Committees on Anti-Defection Law. •What is the Anti-Defection Law? The Tenth Schedule which is popularly known as the Anti-Defection Act was included in the Constitution in 1985 by the Rajiv Gandhi ministry and sets the provisions for disqualification of elected members on the grounds of defection to another political party.

The Anti-Defection law was introduced via the 52nd Amendment Act, 1985, soon after the Rajiv Gandhi government came into power with a thumping majority post assassination of Prime Minister Indira Gandhi. Why India needed an Anti Defection Law? The Rajiv Gandhi government was prompted to introduce Anti-Defection Law because several defections were witnessed in the 1980's. The Amendment was supposed to bring stability to the structure of political parties and strengthen parliamentary democracy by prohibiting defections. The earlier failures to deal with this issue had caused rampant horse-trading and corruption. The Schedule X was thus, seen as a tool to cure this malaise. This constitutional measure meant each member who was elected to a political party, so he could not later opt to leave that party or switch to a different party. What are the grounds for disqualification under the Anti-Defection Law's Articles 102 (2) and 191 (2)? a) If an elected member voluntarily gives up his membership of the political party; b) If he votes or abstains from voting in such House contrary to any of the direction issued by his political party or anyone authorised to do so on behalf of the political party, without obtaining prior permission. The pre-condition for his disqualification, is when his abstention from voting has not been condoned by his party or the authorised person within 15 days of such incident. The Chairman or the Speaker of a House has been empowered to frame rules for giving effect to the provisions of the Tenth Schedule. The rules are set before the House and shall be subject to modifications/disapproval by the House. Independent Members: An independent member of a House (elected without being set up as a candidate by any political party) becomes disqualified to remain as a member of the House if he joins any political party after such election. Nominated Members: A nominated member of a House becomes disqualified for being a member of the House if he joins any other political party after the expiry of six months from the date on which he takes his seat in the House. This means that he

may join any political party within six months of taking his seat in the House without inviting any disqualification. The above disqualification on the ground of defection does not apply in the following two cases: 1. If a member goes out of his political party as a result of a merger of the party with another party. Such merger of political parties takes place when twothirds of the members of the party have agreed to such merger. 2. If a member, after he has been elected as the presiding officer of the House, voluntarily gives up the membership of his political party or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of this office. Merits and Demerits of this law: The Defection Law has its own Merits and Demerits and it is upon the politicians and our citizens to see how they interpret the Anti-Defection Law and help in the proper functioning of the democracy. Merits: • Provides more stability to the government by preventing shifts of party allegiance. • Ensures that candidates are elected with party support and on the basis of party manifesto's so as to remain loyal to the party policies. This promotes party discipline. Demerits: • By preventing parliamentarians from changing parties, it thus reduces the accountability of the government to the Parliament and the people. • The Anti- Defection Law interferes with the member’s freedom of speech and expression by curbing dissent against party policies. What were the major loopholes? As per the 1985 Act, the word 'defection' by one-third of the elected members of a political party was considered a 'merger'. Such defections were not actionable against. The Dinesh Goswami Committee on Electoral Reforms and the Law Commission in its report on "Reform of Electoral Laws" and also National Commission to Review the Working of the Constitution (NCRWC) all of them recommended deletion of the Tenth Schedule provision regarding exemption from disqualifications in case of a split.

Finally the 91st Constitutional Amendment Act, 2003, changed this. So now atleast two-thirds of the members of a party have to be in favour of a "merger" for such "merger" to have validity in the eyes of the law. "The merger of the original political party or a member of a House will be deemed to have taken place if, and only if, not less than two-thirds of the members of the party concerned have agreed to such merger," states the Tenth Schedule. Experience so far: In the 30 years of this law, complaints have been made against 62 Lok Sabha MP's. Of these, 26 were disqualified. It is important to note that ten of these disqualifications were after the trust vote of July 2008 (over India-US civil nuclear co-operation). Four cases that were made out against Rajya Sabha MPs (two in 1989 and two in 2008) and all were upheld. In the State Legislatures, up to 2004, out of 268 complaints, 113 were upheld. Recently ( Congress MLAs were issued Notices under Anti- Defection Law for supporting BJP in Uttrakhand to topple Congress CM Harish Rawat's Government. International scenario on Anti Defection Law: Anti- defection law is practiced not only in India but it is also prevalent in various other countries like Bangladesh, Kenya, South Africa, etc. Article 70, Bangladesh Constitution lays down that a member shall vacate his seat if he resigns or votes against the directions given by his party. The dispute is referred by the Speaker to the Election Commission. Section 40, Kenyan Constitution also states that a member who resigns from his party has to vacate his seat. The decision is given by the Speaker, and the member may appeal to the High Court. Article 46 , Singapore Constitution lays down that a member must vacate his seat if he resigns, or is expelled from his party. Article 48 enumerates 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. •Under which circumstances is a split in a party not considered a 'defection'? A split in a political party will not be considered a defection if the entire political party merges with another; if a new political party is formed by some of the elected

members of one party; if he or she or other members of the party have not accepted the merger between two parties and has opted to function as a separate group from the time of such a merger. What are the powers of a party whip under the Constitution in case of a defection? The whip upholds the party directives in the House as the authorized voice of the party. On defection of elected members of his party, the party whip can send a petition on the alleged defection to the Chairman or the Speaker of a House for their disqualification. He can also expel the members from the party. But this does not necessarily mean that the members so expelled lose their seats in the House. They also continue to hang on to their seats as long as the Chairman or the Speaker of a House gives final decision on their disqualification from the House after a proper inquiry on the basis of the petition filed by party whip. What are the options before a disqualified elected member? The members so disqualified can stand for elections from any political party for a seat in the same House. But he, naturally cannot get a ticket from his former party. Information to be furnished by members Every member is invariably required to individually furnish to the Speaker a statement giving details of his party affiliation etc. as on the date of election/nomination in Form-III as prescribed in the Disqualification Rules. In the event of any change in the information given by the members in their respective Forms-III, in terms of declaration in their forms, they are required to immediately intimate the same to the Speaker. Petitions Disqualification No reference of any question as to whether a member has become subject to disqualification shall be made except by a petition in relation to such member made in writing to the Speaker by any other member. Every petition is required to contain a concise statement of the material facts and to be accompanied by copies of documentary evidence, if any, on which the petitioner relies. Every petition is required to be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. Every annexure to the petition is required to be signed by the petitioner and verified in the same manner.

Procedure On receipt of the petition, the Speaker will consider whether the petition complies with the requirements of the Rules. If the petition does not simply comply with the requirements, the Speaker shall dismiss petition and intimate the petitioner. If the petition complies with the requirements, copies of the petition are forwarded to the member in relation to whom the petition has been made and if the member belongs to any legislature party, and such petition has not been made by the leader , also to such leader, for furnishing their comments in writing to the Speaker on the petition. After considering the comments, Speaker will either proceed to determine the question or, if he is satisfied, having regard to the nature and circumstances of the case that it is necessary or expedient so to do refer the petition to the Committee of Privileges for making a preliminary inquiry and submitting a report to him. The procedure which shall be followed by the Speaker for determining question of disqualification and the procedure which shall be followed by Committee of Privileges for making preliminary inquiry shall, so far as may be, the same as the procedure for making inquiry & determination by the Committee of any question of breach of privilege of the House. The Committee of Privileges while considering some petitions filed under the Tenth Schedule to the Constitution and the rules referred to the Committee by the Speaker gave a very careful thought to the true import of the term “preliminary inquiry”. The Committee came to a conclusion that in such matters, the Committee are required only to give their findings on the facts of the case and it isn’t the Committee’s remit to decide questions of law and arrive at conclusions on the merits of the case and make recommendations. If the Speaker makes a reference to Committee of Privileges, he will proceed to determine the question as soon as may be after receipt of the report from the Committee. Neither Speaker nor Committee come to any finding that a member has become subject to disqualification, without affording any reasonable opportunity to the member to represent his case and to be heard in person. After the conclusion of the consideration of the petition, Speaker may order in writing dismiss the petition or declare that the member or members in relation to whom the petition has been made has become subject to disqualification under the Tenth Schedule and cause copies of the order to be delivered or forwarded to the petitioner, the member in who's relation the petition has been made and to the leader

of the legislature party, if any, concerned. The order of the Speaker disqualifying the member is reproduced in Bulletin Part-II and is also notified in Gazette of India, Extraordinary, Part-II, Section 3 (ii). Where the Speaker declares that the member has become subject to disqualification under the Tenth Schedule, he shall cease to be a member of the House with effect from the date of the order by the Speaker. The Speaker has the power to issue such directions as he may consider necessary in regard to the detailed working of the Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985. Who is the deciding authority? The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, and the decisions given by him are final. All proceedings in relation to any question on disqualification of a member of a House under this Schedule are deemed to be proceedings in Parliament or in the Legislature of a state. No court has any jurisdiction. Judicial interpretation by Courts: A question was raised that whether the right to freedom of speech and expression is curtailed by the Tenth Schedule, the Apex Court has laid down that “The provisions do not subvert the democratic rights of the elected members in Parliament and state legislatures. It does not even violate their conscience. The provisions do not violate any right or any 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 has also expounded that that to the extent that the provisions grant finality to the orders of the Speaker, the provision is valid. However, High Courts & Supreme Court can exercise power of 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 the issue was raised whether a member can be said to voluntarily give up his membership of a party, if he joined 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, it can be thus said that he voluntarily gave up membership of old party.” In a 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. 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.” Supreme Court in the case of Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors. raised 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, it was held that if the Speaker fails to act on a complaint, or accepts the claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. The Court enunciated that ignoring a petition for disqualification is not merely an irregularity but it is also a violation of constitutional duties.

Views of some Committees on Anti-Defection Law Dinesh Goswami Committee on electoral reforms (1990) Disqualification should also be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or he votes contrary to the party whip in a motion of vote of confidence or motion of noconfidence. The issue of disqualification should be decided by 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.Parties should thus 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 must 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 in Bar on Jurisdiction of Courts Notwithstanding anything contained in the Constitution, no court has any jurisdiction* in respect of any matter connected with the disqualification of a member of a House on ground of defection. Read the Anti Defection Law

Article 102 of Constitution of India. Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament(a) If he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (b) If he is of unsound mind and stands so declared by a competent court; (c) If he is an undischarged insolvent; (d) If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) If he is so disqualified by or under any law made by Parliament. 1

[Explanation. For the purposes of this clause] a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. 2

[(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.] 1. Subs. by the Constitution (Fifty-second Amendment) Act, 1985, s. 3 for “(2) For the purposes of this article” (w.e.f. 1-3-1985). 2. Ins. by s. 3, ibid. (w.e.f. 1-3-1985).

Article 191 of Constitution of India. Disqualifications for membership. (1) A person shall be disqualifed for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State(a) If he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (b) If he is of unsound mind and stands so declared by a competent court; (c) If he is an undischarged insolvent; (d) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) If he is so disqualified by or under any law made by Parliament. 1

[Explanation.- For the purposes of this clause], a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. 2

[(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.]

1. Subs. by the Constitution (Fifty-second Amendment) Act, 1985, s. 5, for “(2) For the purposes of this article” (w.e.f. 1-3-1985). 2. Ins. by s. 5, the Constitution (Fifty-second Amendment) Act, 1985 (w.e.f. 1-3-1985).

TENTH SCHEDULE 1

[TENTH SCHEDULE

[Articles 102(2) and 191(2)] Provisions as to disqualification on ground of defection 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) ‘legislature party’, in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or 2[***] paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions; (c) ‘original political party’, in relation to a member of a House, means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2; (d) ‘paragraph’ means a paragraph of this Schedule. 2. Disqualification on ground of defection.—(1) Subject to the provisions of 3[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 gives 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, deemed to be

a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph. 4

[***]

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 registers or other records as to the political parties if any, to which different members of the House belong; (b) the report which the leader of a legislature party in relation to a member of a House shall furnish with regard to any condonation of the nature referred to in clause (b) of sub-paragraph (1) of paragraph 2 in respect of such member, the time within 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 in sub-paragraph (1) of paragraph 6 including the procedure for any 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 or, as the case may be, article 194, and to any other power which he may have under this Constitution direct that any wilful 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.] ——————————1. Added by the Constitution (Fifty-second Amendment) Act, 1985, sec. 6 (w.e.f. 1-3-1985). 2. The words “paragraph 3, or as the case may be” omitted by the Constitution (Ninety-first Amendment) Act, 2003, sec. 5(a) (w.e.f. 1-12004). 3. Subs. by the Constitution (Ninety-first Amendment) Act, 2003, sec. 5(b), for “paragraphs 3, 4 and 5” (w.e.f. 1-1-2004). 4. Paragraph 3 omitted by the Constitution (Ninety-first Amendment) Act, 2003, sec. 5(c) (w.e.f. 1-1-2004). Prior to omission paragraph 3 stood as under: 3. Disqualification on ground of defection not to apply in case of split.—Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one third of the members of such legislature party,—

(a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground — (i) that he has voluntarily given up his membership of his original political party; or (ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and (b) from the time of such split, such faction 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 paragraph. * Paragraph 7 declared invalid for want of ratification in accordance with the proviso to clause (2) of article 368 as per majority opinion in Kihota Hollohan v. Zachilhu, (1992) 1 SCC 309.