Anti Defection Law.docx

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CONSTITUTIONLA LAW ANTI-DEFECTION LAW

SUBMITTED TO: - Dr. Mohammad Asad Malik

SUBMITTED BY: - Kapil Singh Gaur BALLB (Hons.) S/F, Sem- III

Acknowledgement

The success and final outcome of this assignment required a lot of guidance and assistance from many people and we extremely fortunate to have got this all along the completion of our assignment work. Whatever we have done is only due to such guidance and assistance and we would not forget to thank them. I respect and thank Dr. Mohammad Asad Malik for giving me an opportunity to do this assignment work and providing me support and guidance which made me complete the assignment on time, I extremely grateful to him for providing such a nice support and guidance. I am really grateful because I managed to complete this assignment within the time given by Dr. Mohammad Asad Malik. This assignment cannot be completed without the effort and cooperation from my friends and family members. I would like to express my gratitude to my friends and respondents for support and willingness to spend some time with me.

Kapil Singh Gaur

TABLE OF CONTENTS

S. Nos.

Particulars

1.

Introduction

2.

Back Ground

3.

The Provisions of Xth Schedule

4.

Issues

5.

Criticism of Law

6.

Conclusion: A Few Proposals

Page Nos.

INTODUCTION The anti-defection law in India has an all-pervasive impact on the lives of the ordinary citizen as it seeks to promote parliamentary discipline and decorum and prevent unethical tactics from being used by politicians. While such aims are indeed laudable there are its critics who claims that this law has created more problems and complications than ever before. There has been a continuous struggle between the supporters of law on one hand and its detractors on the others. In this context certain basic questions arise “where does one draw the line?” can a member be allowed to vote against the wishes of his party as it clashes with the needs of his constituency? Does a person owe a greater allegiance to his party or to the people who elect him in the event of the two interests clashing? Can this law against defection strike a balance between these two needs and yet ensure the stable government, which is another equally important objective? In short what is the flexibility required for such a Law? Aaya Ram Gaya Ram was a phrase that become popular in the Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. The Anti Defection Law sought to prevent such political defection which may be due to rewards of the office or other similar considerations. The Tenth Schedule was inserted in the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on the petition by any other member of the house. A legislature deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directive of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament and state assemblies. BACKGROUND The phenomenon of defection is not something that is peculiar to India. It is prevalent in democracies all over the world, which have adopted the party system. In Great Britain, famous politician like Winston Churchill, William Gladstone and Ramsay Macdonald used it

during their careers as political tactics. Similarly, in Australia, Canada and USA, this practice of defection has been noticeable.1 In India, the need to tackle defection arose only after 1967. Prior to 1967, these were only about 500 instances of defection and that too, mostly at the state level. Such defection occurred mostly for ideological reasons and not due to lure of office. These defections further strengthened the fabric of Indian democracy and curbing such defection would have been akin to undermining and eroding the freedom required setup. 2 After Fourth General Election in country however, the practice of defection took an alarmingly unprecedented turn. Many legislators switched sides thanks to use of office and abruptly switched back when the promises made to them were not fulfilled. Between 1967 and 1972 more than 50% of the legislators switched sides at least once.3 This practice of switching sides to gain office came to known as ‘Horse-Trading’. The first attempt to analyse this malady came in December, 1967 when the Lok Sabha appointed a high-level committee to look into the problem and to make recommendations. The committee was constituted under the chairmanship of then Union Home Minister Y.B. Chavan and consisted of legal and political luminaries such as M.C. Setalvad, Jayaprakash Narayan, H.N. Kunzru, M. Kumaramangalam and Madhu Limaye among others. The committee placed its report before the Parliament in February 1969. The committee’s recommendations included that I. II.

Political parties should arrive at a code of conduct amongst themselves. In cases of defection for ideological reasons, the defector should be disqualified from continuing as a legislator but is allowed to stand again.

III.

In cases of defection due to the lure of the office or pecuniary gains the defector should not only be disqualified from the office but also be prevented from standing for a specified period.

What emerges is that no definite stand for or against defection was taken. It was proposed to regulate defection and only a certain category of defections were sought to be prohibited. However, these recommendations were not acted upon immediately.it was only in may 1973 that the government introduced the Constitution (32nd Amendment) bill, 1973 to give the 1

Subhash C. Kashyap, The Anti Defection Law-promises, Provisions and Problems, 35 JPI (1989) (SCC Online web Edition) 2 K.N. Singh, Anti-Defection Law and Judicial Review, 38 JPI 31 (1992). (SCC Online web Edition) 3 J.K. Mittal Anti-Defection Act: A comment on its constitutionality (1987) 3 SCC (J) 25 at 26 (SCC Online Web Edition, The Law On Anti-Defection: An Appraisal, by H.R. Saviprasad: and Vinay Reddy)

effect to recommendations made 4 year earlier. However, there was a strong opposition to the bill and it became the matter of public debate. This bill was then referred to a joint committee of the 2 Houses. However, the Lok Sabha was dissolved before this committee could complete its deliberation and the bill lapsed. It was not until 5 years later when the Janata Party came to power in 1978 that an attempt was made to bring forward a bill on defection. However, this was opposed at the stage of introduction itself not only by opposition but also by some members of the ruling party and the motion for introducing the bill was withdrawn.4 It was not until the Rajiv Gandhi Government came to power 7 years later that any move was made in this direction. It began on 17th January 1985 with the presidential address to both Houses of Parliament in which he said that government intended to introduce a bill relating to the matter. To fulfil the promise made by President, the Government introduced the 52 nd Amendment Bill in Lok Sabha just a week later on 24 th of January. The Prime Minister had prolonged the talks with the opposition groups, it was after this that the Bill was finally passed. Lok Sabha passed it on 30th and Rajya Sabha on 31st January. The Act came into force with effect 1st of March after having received Presidential assent on 15 th February. The constitution 52nd Amendment Act, 1985 amended Acts 101, 102, 190, 191 of the constitution providing further grounds for disqualification from membership of Parliament and State Legislature.

THE PROVISIONS OF Xth SCHEDULE: I.

A member of the house is disqualified from the membership if he voluntarily gives it up or if he votes or abstains from voting contrary to the direction given by the party.5

II.

This disqualification does not apply in case of a split i.e., 1/3 rd or more of the members of a party defect.6

III.

It shall also not apply in the event of a merger i.e., 2/3 rd of the members or more merge with any other party. 7

4

Subhash C. Kashyap, The-Defection Law-Premises, Provisions and Problems, 35 JPI (1989) 9, p. 11. Paragraph 2. 6 Paragraph 3. 7 Paragraph 4. 5

IV.

The speaker, Deputy Speaker and Deputy Chairman are allowed to give up their membership after being elected to the office.8

V. VI.

The speaker or chairman is the person to decide questions of disqualification.9 The jurisdiction of the courts regarding the disqualification of any member has been barred.10 However the Supreme Court in 1993 has struck down this part of the schedule as unconstitutional.11



The Act disqualifies (a) a member of the house who voluntarily gives up his membership of a political party on whose ticket he contested the election. (b) a member of the House if he votes or abstains from voting in the house contrary to the direction of his political party without its prior permission and if his action has not been condoned within 15 days by his party. (c) to an independently elected member who joins a party after election (d) a nominate member belonging to a political party provided he voluntarily resigns from his party, and (e) a non-party nominated member who joins a political party after six months but not if he joins within six months.



The Act exempts the cases of splits and mergers from disqualification. Members of a house do not incur disqualification if they belong to legislature party and constitute a group representing a faction arisen as a result of a split of their political party provided the group consists of at least one third members of such legislature party. Again, members of a house do not incur disqualification where their political party merges with another and they claim that they have become members of such other party or of a new party formed as a result of such merger, or they have not accepted the merger and opted to function as a separate group. From the time of merger, such other party, new party or group is deemed to be political party to which the members belong. Further, the merger is deemed to have taken place if not less than two-thirds of the members of the legislature party concerned have agreed to merger. These provisions give blanket exemption to splits and mergers and would frustrate the very purpose of the Anti-Defection Law. They are dangerous in that they can lead to their abuse. They are totally ill-conceived in view of what happened in the recent past, and illogical because under the Act the greater the sin, the greater the immunity. In many cases, defections were affected by the groups- big and small. It would not be difficult to stage splits and mergers for ulterior motives. It is amazing that the law

8

Paragraph 5 Paragraph 6 10 Paragraph 7 11 Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651: AIR 1993 SC 412. 9

punishes small fry but not hawks. The classification into individuals and groups has no intelligible differentia having a rational relation with the object of the law, and is, therefore, unconstitutional in the view of Article 14 and void. The Act outlaws defection by an individual member but shuts its eyes to defection in the grab of splits and mergers of groups of members. The classification is prima facie irrational, it is undemocratic and ill-conceived. 

The power to resolve the issue of disqualification is vested in presiding officers of the houses and their decisions are final. Such proceedings are deemed to be proceedings in Parliament under Article 122 or in a State legislature under Article 212. These Articles debar courts from inquiring into such proceedings. Despite the procedure laid down by the anti-defection rules framed under the Act, the decision of presiding officers (who are usually nominees of majority legislature parties) may not always inspire confidence, psychologically and unconsciously they are likely to lean in favour of their political supporters. A vital matter such as the matter of disqualification based on the allegation of defection should not, therefore, be entrusted to them. Again, it is not clear why separate forum has been created for settling question of disqualification on account of defection when constitution is already provided a machinery for dealing with issues of disqualifications specified in Article 102 and 191. Under Articles 103 and 192 these issues have respectively to be referred to the President and Governors whose decisions are final. But before doing so, they have to seek the opinion of Election Commission and have to act according to such opinion.12 The provision empowering presiding officers to decide questions of disqualification as a result of alleged defection is inconsistent with the existing constitutional scheme to have decisions in such matters by the Election Commission which an impartial forum is created by the constitution. There is no rational basis of such discrimination.



The Act has also taken away judicial review in cases of disqualification on the basis of defection. There is no such bar in regard to issues of disqualifications mentioned in Articles 102 and 191. This again is an impermissible discrimination and violates Article 14. Though under the existing provisions the decision of the President or the Governor, as the case may be, is final, the courts can still intervene on the ground that he has not acted according to opinion of election commission because “finality can attach only to intra vires exercise of the power, when a power is limited by

12

Election Commission v. N.G. Ranga, (1978) 4 SCC 181

conditions”. According to Judicial Review can not be barred as it is the part of the basic structure of the constitution.13 ISSUES The way this Amendment Act has been passed and Tenth Schedule added to Constitution has been a matter of dispute on each and every count. The constitutional validity of the Act and recognition given to the Political Parties has been disputed. It is claimed and may be rightly so that the legislation has not been passed in accordance with the procedure laid down for such amendments under Article 368(2) of the constitution. Its validity has been examined in detail by Supreme Court in Kihoto Hollohan14 case and the majority decision delivered by Mr. Venkatachaliah, J. applying the test of doctrine of severability, repealed para seven of the Tenth Schedule and declared it to be unconstitutional. The test by applied the court was that if it requires the court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of law and whether after severance what survives can stand independently and is workable. Parliament alone is not competent to make such amendments on account of some constitutionally recognised federal principle being invoked. If the doctrine of severability can be applied it can be upheld as valid in respect of amendments within the competence of parliament and only the amendments which parliament lone was not competent to make could be declared invalid. However different view has been taken by dissenting judges (Mr. Verma and Mr. Sharma, J.J.) stating that paragraph 7 is not severable from remaining part of the Tenth Schedule. The dissenting judges stated that “even the test applicable for applying the Doctrine of Severability to ordinary legislation as summarised in R.M.D. Chamarbaugwalla v. UOI

15

indicated that the legislative intent was to make the

enactment only with paragraph 7 therein and not without it”. This intention is manifest throughout and evident from the fact that but for para 7 of the enactment did not require the discipline of Article and exercise of the constituent power. The entire exercise, as reiterated time and again in the debates, particularly the speech of the Law Minister while piloting the Bill in Lok Sabha and that of Prime Minister in the Rajya Sabha, was to emphasis that total exclusion of Judicial Review of the speakers decision by all courts including the Supreme Court. The entire legislative history show this. the dissenting 13

Anti-Defection Act: A comment on its constitutionality, J.K. Mittal, (1987) 3 SCC J-25, SCC Online (web edition). 14 1992 SCR (1) 686, 199 15 AIR 1957 SC 628

judges held, and perhaps very rightly so, that how can the Doctrine of Severability be applied in such a situation to retain the Tenth Schedule Striking Down paragraph 7 alone? The meaning and significance of the term “split” and “merger” appearing in para 3 and para 4 of the schedule and their constitutional recognition has created a lot of upheaval in political circle all the regional parties, non-serious candidates, independent candidates have been allured by the minority governments and for their vested interests these politicians instead breaking away from the original party individually have adopted a very valid and constitutionally recognised practice of floor crossing which once upon a time was considered to be evil. In Kihoto Hollohan case. Mr. Ram Jethamalani urged the court that the distinction between the conception of “defection” and “spilt” in the Tenth schedule is so thin and artificial that the differences on which the distinction rests are indeed and outrageous defiance of logic that if floor-crossing by one member is evil, then collective preparation of it by one-third of the elected Members of a party is no better and should be regarded as an aggravated evil both logically and from the part of aggravated consequences. Yet the Supreme Court gave its clean chit with regard to this provision. The Supreme Court observed that “these provisions in the Tenth Schedule give recognition to the role of political party in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected on the basis of the programme of the political party. The provision of paragraph 2(1)(a) proceed on the promise that political propriety and morality demand that if such a person, after the election changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The same yard stick is applied to a person who is elected as an independent candidate and wishes to join a political party after the election”. In B.S.P. split known as Mayawati case 16 the B.J.P. – B.S.P. alliance was created and as per the agreed terms and conditions the alliance was to pay way for Ms. Mayawati and Mr. Kalyan Singh to occupy the post of the Chief Minister for the period of six month on the rotation basis. But contrary to the alliance agreement Ms. Mayawati withdrew her BSP support and broke alliance. Kalyan Singh lost majority and was to asked him to seek the vote of confidence and Ms. Mayawati, leader of BSP in Legislature issue a whip to its 16

Mayawati v. Markandeya Chand, (1998) 7 SCC 517.

members to vote against the motion. However, 12 members that increased to 23, defected and supported the BJP’s government by voting against the whip. Later these defectors under the leadership of Mr. Markandeye Chand informed the speaker that they might be recognised as a separate party name “Janatantrik BSP”. The speaker passed appropriate orders for recognition of the party under the Tenth Schedule of Constitution and declared that the breakaway group is not liable to be disqualified under Para 2(1) and Para 3 of the Schedule. Another point that is relevant at this juncture is that what amount to Split and Merger, under the Tenth Schedule i.e. whether the members who have given up the party membership by their explicit notice or implied behaviour instantaneously as one time event or the process has been an ongoing over a period of time till garnering the support of two third or one third members of the original party as the case may be. The Supreme Court declined to give its opinion on the issue by stating “no hypothetical predictions can or need be made”. The question remained open and explained as of now even. Another very disputed term used by the courts and speaker is “unattached member” and when? The dispute arose in Tamil Nadu in G. Viswanathan v. T.N. Legislative Assembly.17 Assembly where the speaker of Tamil Nadu Legislative Assembly declared two MLAs (Mr. Viswanathan and Mr. Thirunavukharasu elected from AIDMK) as unattached member of the Assembly. They were earlier, expelled from the party for Anti Party Activities. It is undisputed that they have subsequently joined another political party i.e. M.D.M.K. it was contented by the council for the petitioner-appellants para 2(a) of the Tenth Schedule of the Constitution comes into play only to disqualify the member who ‘voluntarily gives up his membership of the party and declared unattached’ i.e. not belonging to any party. Para 2(a) will apply only when a member himself gives up his membership of the political party that have set him up as a candidate. Any member thrown out or expelled from the party that had set him up as a candidate will not fall within the mischief of Para 2(a). the council insisted on strict interpretation of the provision contained under the Tenth Schedule. The court after examining the provision in detail opined that “the deeming fiction must be given full effect for otherwise the expelled member would escape the rigor of the law which was intended to curb the evil of defection which has polluted our democratic polity”. 17

(1996) 2 SCC 353

The member so expelled was declared disqualified under the provisions of tenth Schedule. In similar situation in Ravi S. Naik v. UOI18 the Supreme Court was required to interpret the provisions under para 2(a) of the Tenth Schedule and the court observed that the said paragraph provides for disqualification of a member of a House belonging to political party “if he has voluntarily given up his membership of such party. The court further observed that 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 and even though he has not tendered his resignation from the membership of the party. Even in the absence of the formal 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.19 CRITICISM OF LAW: 1. On Splits and Mergers: This exemption has been given solely based on the number of the people defecting. Thus if the requisite number defect, they are not hit by disqualification. There appears to be no rational behind this exemption as 2/3rd of a party may merge due to lure of office, should this defection this defection is allowed simply due to grater number involved? Does not such a defection also threaten to undermine the core of India’s democracy which this law is supposed to protect. Thus, this does seem rather irrational a the motivation behind an individual and a mass split could well be same. The purpose of this Law would have better been served if the law were to distinguish based on the reason behind the split, is the reason genuinely based on the needs of the member’s constituency. Then an exemption ought be given irrespective of the number of the members involved in the split. This would ensure that a member does not breach the trust reposed in him by the electorate. 2. Defection v. Dissent: In this context a distinction need to be made between “Defection” and “Dissent” all forms of dissent do not amount to defection. In this light, a member should be free to votes as he wishes on certain important public matters and not as the party directs him to do. This would ensure that the true 18 19

(1994) supp (2) SCC 641 Rajiv khare, ‘Anti Defection Law: A Redundant Legislation’ 16-17 ALJ (2001-02) 159.

democratic sprite within the country is achieved. For e.g. if on a particular topic, the party wishes the member to vote in a particular manner, but if voting is contrary to the needs of the member’s constituency he should be given freedom to vote against the direction of the party. That is the true meaning of representative democracy whereby the needs of the electorate are taken into the account the motive behind such contrary voting and if the motive is genuinely to serve the interests of the constituency the member should not be disqualified.by failing to bear this in mind, the Anti Defection Law indeed appears not to have achieved its purpose of strengthening India’s democracy. 3. A criticism allied to the on stated previously is that the law abrogates the Fundamental right to free speech and association of the members. This assumes the greater importance when one considers that certain Parliamentary privileges over and above those available to ordinary citizens have been granted to members to ensure democratic functioning or the government. It would be appropriate to recall Palkhivala’s opinion of the topic wherein he expressed his fear that AntiDefection Law would result in members becoming mere puppets in the hands of the parties. 4. Another anomaly in the law can be perceived when one considers that Parliament is required to exercise certain quasi-judicial powers under the constitution. For example Article 61 provides for the impeachment of the president, Article 124 relates to the removal of Supreme Court Judges, etc. the basis behind this power is that each member weighs the pros and cons of the issue by himself and then votes. If the party were to issue a whip on this matter the whole purpose of such a power would be defeated. There is also a danger that political considerations may come into play rather than merits of the issue at hand. This would be detrimental to national interest as the issues involved are crucial ones like the removal of people from their posts. One glaring the contradiction occurs in a para; an independent member stands disqualified if he joins any political party after his election. But the same paragraph allows a nominated member to join any political party within a month of his nomination. This distinction is highly illogical as an independent member owes his election to nobody and should thus be left free to join a party of his choice. On the other hand a person is nominated by the ruling party and is thus almost certain to join it. There is no rationale behind this distinction. And only is it arbitrary but it also serves no useful purpose.

5. A Glaring Contradiction: The whole basis of Parliamentary Democracy lies in the day to day accountability of the Government to Parliament enforced through collective responsibility, Parliamentary privileges, etc. That is lost as the ruling party only to issue a whip to compel a member to vote in a particular manner irrespective of whether or not he wants to do so. Thus the ruling party can use the Xth schedule to pass all its polices even if many of its members disagree with any policy. This abuse of the Xth schedule would surely strike at the very root of its purpose. 6. Speakers’ power: The speaker in India is a political person who does not serve his political connections after being elected. Considering this probability there is no justification whatsoever for this provision in the Xth schedule. It is effect empowers the Speaker to manipulate the situation to suit the party he favours. 7. Decision of Speakers: one problem which is a direct off-shoot of the Xth schedule is the lack of uniformity in the decisions of the Speakers in the different states. This has led to great confusion in the political set up as similar situations have been treated differently by different Speaker. This has led to great deal of uncertainly prevailing about what the law is actually provides. This problem has been compounded by the practice of certain Speakers declaring persons expelled from the part membership as unattached members and allowing them freely cast their votes. This not provided for by the Xth schedule and subverts its very objective. Ramesh Babu, the then speaker of Karnataka went one step further when he ruled that defecting members who joined the ruling Congress Party were associate members and therefore not liable to be disqualified Under the Schedule. It is patently clear how the power vested in the speaker by this law has resulted in him being susceptible to more political manipulation. Thus there are some glaring anomalies present in the existing law on Anti-Defection which act as obstacle and prevent the achievement of its stated objectives.20

CONCLUSION: A FEW PROPOSALS:

20

H.R. Saviprasad and Vinay Reddy, ‘The Law on Anti-Defection: An Appraisal’, 11 Stud Adv (1999) 116, SCC Online web edition.

I.

Removal of the existing exemption given to splits and mergers; as already pointed out earlier it is highly illogical, to exempt members from disqualification purely based upon the number of defectors. This serves no purpose whatsoever and it would be more logical for this provision to be deleted and to purely base disqualification on the reason behind the defection regardless of the members involved. Such change would cure the existing law of a major flaw.

II.

The distinction made by this law between an independent and nominated member as analysed earlier is baseless. It is submitted that such distinction should be removed.

III.

Another aspect to ensure certainty is the need for uniformity in decisions of the pending officers. This would ensure certainly and also respect for these decisions. Such uniformity can be achieved if the law is clear on certain crucial points.

IV.

Also, it is essential that a code of conduct be laid down for the presiding officers in order to prevent any politicking on their part. Steps should be taken to prevent their inventing terms like “attached” and “associate” members thereby subverting of objectives of the law. This code of conduct should prohibit the Presiding Officers from inventing loopholes in the law.

V.

The decision-making power which is now vested in the presiding officers should perhaps be conferred on a different independent and impartial body altogether. A tribunal could perhaps be created for the purpose. This would serve greatly reduce any political bias in the decisions regarding disqualification.

Bibliography 1. Basu, DD, Constitutional Law of India, 7th edn. 1998, PHI. 2. M.P. Jain, Indian Constitutional Law, 4th edn. (Reprint) 1999, Wadhwa & co.

3. www.scc.com