Iii. Sem Anti Defection Law

ANTI-DEFECTION LAW IN MODERN DEMOCRACY ANTI-DEFECTION LAW IN INDIA I.INTRODUCTION

‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group” The Advanced Law Lexicon defines defection as, “crossing the floor by a member of a Legislature is called defection.” In short, defection is an act by a member of a particular party of disowning his loyalty towards that particular party and pledging allegiance to another party. This is what the Law Lexicon describes as ‘crossing the floor’. The politics of defection has been the bane of the parliamentary system in India. The vice of defection has been rampant in India for quite some time, especially at the State level. In order to fill the lacuna that existed in our polity, the Indian Parliament, under the able leadership of Mr. Rajiv Gandhi brought an Amendment to the Indian Constitution in the year 1985. In this amendment Art 102 and Art 191 was made more effective by adding a clause of disqualification under Tenth Schedule for defection. Also, in the same amendment the Tenth Schedule was incorporated in parlance to Art 102(2) & Art 191(2) so to specifically tackle the evil of defection, which is so omnipresent. Section 16 of the Government of the National Capital Territory of Delhi, Act, 1991” provides for disqualification of Members of the Delhi Assembly on grounds of defection. In pursuance of the powers conferred under the provisions of the Tenth Schedule and the GNCT Act, the ”Members of Delhi Legislative Assembly (Disqualification on Ground of Defection) Rules, 1996” was framed. The reasons for the addition of this Schedule were explained by the Statement of Objects and Reasons of the Fifty-second Amendment (1985) to the constitution in the following words1 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

“The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the address by the President to Parliament that the government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance.” The purpose underlying the anti-defection law is to curb defections, but, at the same time, not to come in the way of democratic realignment of parties in the house by way of merger of two or more parties, or a split in the existing party. The anti-defection law has been hailed as a bold step to clean public life in India, but, in course of time, certain defects therein have become apparent which have very much compromised the effectiveness of the law to achieve its objectives. This has very much hampered on the term “representative In simple words, for example:- If a person joins a political party it is presumed that he will follow the policies and programmes of the party when he is elected to the legislature as a candidate of the party again it is presumed that voters have entrusted their faith by a majority not only to him but also to that party. However,after being so elected if that elected member or a group of Members does not support that Political Party’s ideology or conducts against the party’s instructions or joins another Political Party or make a new Political Party either by merger or split than member of group of member should be disqualified of that holds the practise of acquiring membership of another Political Party or making a separate or without giving up the membership of that House is commonly known as ‘’Defection’’.

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BACKGROUND BEHIND ANTI-DEFECTION LAW

In India, the need to tackle defection arose only after 1967. Prior to 1967, there were only about 500 instances of defection and that too, mostly at the State level. Such defections occurred mostly for ideological reasons and not due to the 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. After the Fourth General Elections in the country however, the practice of defections took an alarmingly unprecedented turn. Many Legislators switched sides thanks to the use of office and as abruptly switched back when the promises made to them were not fulfilled. Between 1967 and 1972 more than 50% of the legislators switched at least once. This practice of switching sides to gain office came to be known as “Horse- Trading” 1 The first attempt to analyses 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 the 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.Kumaramanglam and Madhu Limaye among others. The Committee placed its report before the Parliament in February 1969. The committee’s recommendations included that: i. Political parties should arrive at a Code of Conduct among themselves. ii. 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 gans the defector should not only be disqualified from office but also be prevented from standing for a specified period.

1 www.indianjournal.com

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What stands 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 effect to recommendations made 4 years earlier. However, there was a strong opposition to the Bill and it became a 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 deliberations and the Bill lapsed. ANTI-DEFECTION LAW IN INDIA. 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 the Opposition but also by some members of Ruling party and the motion for introducing the Bill was withdrawn.

THE CHAVAN COMMITTEE REPORT AND THE ANTI-DEFECTION BILLS OF THE 1973 AND 19782 A committee of constitutional experts and representatives of political parties was set up on March 1968, under the chairmanship of the then Home Minister, Y.B. Chavan to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor, in all its aspects and to make recommendations in that regard. In drawing up its report and formulating its recommendations, the committee placed before itself the following considerations: 1.) There can be no perfect or infallible deterrent for the kind of defections that are rooted in political irresponsibility and opportunism and create instability, besides bringing the functioning of the democratic institutions into disrepute; 2.) The task of devising remedial measures for a complex political problem has to balance carefully the need for ensuring political stability witha. The natural processes of organic growth of parties; 2 www.vbook.pub.com

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b. The inevitability of the period of transition preliminary to the foregoing of ideological polarization or clarity, with uncertainties attendant on the transition; and c. The avoidance of rigidity which would impinge adversely on honest and genuine dissent or change of convictions or on readjustment of party alignments, in the form of merger, splits, etc. As a part of the process of reaching ideological polarization or clarity; 3.) The best legislative or constitutional devices cannot succeed without a corresponding recognition on the part of political parties of the imperative necessity for a basic political morality and the observance by them of certain properties and decencies of public life, and their obligations mutually to one another and in the last analysis to the citizens of the country; and 4.) The problem requires to be attacked simultaneously on the political educational and ethical planes so that by an intensive political education both of the elite and the masses, a full consciousness of the values of democratic way of life is created. The main recommendations of the committee were: a) The political parties themselves should arrive at a Code of Conduct inter alia providing against a defector being taken into the fold of another party; b) A representative should be deemed to bound to the party under whose aegis he wins the election. This follows from a clear understanding of the nature and character of representation and the duties of an elected representative; c) No one who was initially a member of the Lower house should be appointed as Prime Minister or Chief Minister and necessary constituted amendment in this regard should be given prospective effect; d) Every defector should be debarred from appointment as a minister for a prescribed period or until he gets himself re-elected; e) There should be a ceiling on the size of the ministries both at the centre and the state levels; f) Provisions for recall may not be practicable or advisable.

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RECOMMENDATIONS OF VARIOUS BODIES ON ANTI DEFECTION LAW3

Dinesh Goswami Committee on electoral reforms (1990) Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence. The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission. Halim Committee on anti-defection law (1998) The words ‘voluntarily giving up membership of a political party’ be comprehensively defined. Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members. The term political party should be defined clearly.

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. Political parties should 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 should 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 invalid.

3 Archieve.indian exprees.com

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Main Features of the Anti-Defection Law4

ANTI-DEFECTION PROVISIONS UNDER THE TENTH SCHEDULE: I.

DISQUALIFICATION a. If a member of a house belonging to a political party: - Voluntarily gives up the membership of his political party, or - Votes, or does not vote in the legislature, contrary to the directions of his political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified. b. If an independent candidate joins a political party after the election. c. If a nominated member joins a party six months after he becomes a member of the legislature. II. Power to DISQUALIFY a.) The Chairman or the Speaker of the House takes the decision to disqualify a member. b.) If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision. III. EXCEPTION Merger A person shall not be disqualified if his original political party merges with another, and - He and other members of the old political party become members of the new political party, or - He and other members do not accept the merger and opt to function as a separate group. This exception shall operate only if not less than two-thirds of the members of party in the House 4 www.ijra.com

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have agreed to the merger.

VIOLATING PARTY DIRECTIONS/ WHIP The Whips Under Anti Defection Law 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 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 continue to hang on to their seats as long as the Chairman or the Speaker of a House gives a final decision on their disqualification from the House after a proper enquiry on the basis of the petition filed by the party whip. In its literal dictionary connotation, the word “the whip” means a clash with a stick or handle used for punishing a person for an offence or in driving a horse-driven carriage for thrashing or beating the horse to urge it to move forward faster. As a verb ‘to whip’ similarly means to lash a person or animal or to strike by a whip. The word is believed to have had its origin in the terminology developed in hunting where the hunter’s employee responsible for managing the hounds and keeping them in their places is called the Whippers-in. In the context of relationship between the parties and their members. The “whip” acts as a twoA Member of Parliament or a State Legislature in India also comes under the rigour of anti-defection law if he votes or abstains from voting in the House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized 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, person or authority within fifteen days from the date of such voting or abstention. Similarly, in Bangladesh the Constitution provides that a Member of Parliament shall vacate his seat if he votes in Parliament against the party. It inter alia provides that a Member of Parliamentary party in the House will be disqualified if he votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to 8 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

which he belongs in relation to election of the Prime Minister or the Chief Minister, a Vote of Confidence or a Vote of No-Confidence or a Money Bill. In Papua New Guinea, the anti-defection law envisages that Members of Parliament elected with party endorsement must vote in accordance with their party’s position on key issues including the election of a Prime Minister, the Budget, votes of no-confidence and Constitutional Amendments. In Sierra Leone, a member is required to vacate his seat for sitting and voting with members of a different party. Interesting, in Malawi, Section65(2) of the Constitution provides that all members of parties shall have absolute right to exercise a free vote in any and all proceedings of National Assembly and a member shall not have his seat declared vacant solely on account of his voting in contradiction to the recommendations of his political party in the National Assembly.

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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 paragraph 3 or, as the case may be, paragraph 4, means the group consisting of all the members of that House for the time being belonging 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 paragraphs 3, 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 given 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 10 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

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 subparagraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party; 11 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

(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, be deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph. 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 onethird 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 subparagraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph. 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 party12 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

(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 subparagraph (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 erger of the original political party of a member of a House shall be eemed 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 a 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 13 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

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; 14 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

(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 subparagraph (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.

THE CONSTITUTION (NINETY-FIRST AMENDMENT) ACT, 2003 5 The Constitution of India- Articles 75(1A), 75(1B), 164(1A), 164(1B), 361B As per the 1985 Act, a '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, the Law Commission in its report 5 www.prsindia.com

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on "Reform of Electoral Laws" and the National Commission to Review the Working of the Constitution (NCRWC) all recommended the deletion of the Tenth Schedule provision regarding exemption from disqualification in case of a split. Finally the 91st Constitutional Amendment Act, 2003, changed this. So now at least two-thirds of the members of a party have to be in favour of a "merger" for it to have validity in the eyes of the law. "The merger of the original political party or 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," states the Tenth Schedule. This Amendment added clause (1A) in this Article which made a specific provision that, the total number of Union Ministers including Prime Minister in no case can exceed 15% of the total number of Members of Lok Sabha. Clause (1B) of this Article which was also added by Constitution 91st Amendment of 2003 made a new provision that a member of either Lok Sabha or Rajya Sabha who is disqualified under the 10th Schedule of the Constitution shall also be disqualified for being appointed as a Minister from the date of expiry of his tenure or if he contests any further election before the expiry of such period, till the date on which he is declared elected, whichever is earlier. 361B. Disqualification for appointment on remunerative political post. - A member of a House belonging to any political party who is disqualified for being a member of the House under paragraph 2 of the Tenth Schedule shall also be disqualified to hold any remunerative political post. the expression “remunerative political post” means any office— (i) under the Government of India or the Government of a State where the salary or remuneration for such office is paid out of the public revenue of the Government of India or the Government of the State, as the case may be; or (ii) under a body, whether incorporated or not, which is wholly or partially owned by the Government of India or the Government of a State and the salary or remuneration for such office is paid by such body, except where such salary or remuneration paid is compensatory in nature. The provision of Tenth schedule pertaining to exemption from disqualification in case of split by one-third members of legislature has been deleted. It means that the defector have no more protection on grounds of split. 16 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

JUDICIAL DEVELOPMENT ON THE TENTH SCHEDULE

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Kihoto Hollohan v Zachillhu7 The scope of this anti-defection law was examined in this case. Court that also analyzed various other aspects of this legislation also. Here, the court, speaking about the necessity of an antidefection legislation, said, “The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed to disqualify the members of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House. The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule.” Brief Facts-In this case matters relating to disqualification of some members of the Nagaland Assembly on the ground of defection under the Tenth Schedule of the Constitution came up for consideration. Matters relating to several legislative assemblies including those of Manipur, Meghalaya, Madhya Pradesh, Gujarat and Goa were also heard along with since all of them involved decisions of certain constitutional questions relating to the constitutional validity of Para 7 of the Tenth Schedule and of the 52nd Amendment. Decision-The Supreme Court found that there were legal infirmities in the passage. Of the Anti-Defection Law in as much as the Constitution Amendment Bill had not been ratified by the requisite number of State assemblies before being presented for the President’s assent. Also, the Speaker’s functions under the Tenth Schedule called for a judicial determination of issues under the Law. The process of determining the question of disqualification could not be considered part of the proceedings of the house and as such not amendable to Judicial Review. The Supreme Court struck down Para 7 of the Schedule barring the jurisdiction of Courts and declared that while operating under the Anti-Defection Law, the Speaker was in 6 www.ssrn.com

7 AIR 1993 SC 412

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the position of the Tribunal and therefore, his decisions like those of all tribunes were subject to judicial review. In regard to the various contentions raised and urged at the hearing, the Supreme Court held as follows: 1. That at the paragraph 2 of the Tenth Schedule to the Constitution is valid, its provisions do not suffer from the vice of subverting democratic rights of elected members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended. The provision of Paragraph 2 does not violate any right or freedom under Articles 105 and 194 of the Constitution. 2. That having regard to the background and evolution of the principles underlying the constitution(52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provision of Paragraph 7 of the Tenth Schedule in the Constitution in terms and in effect bring about the change in the operation and effect of Article 136, 226, 227 of the Constitution of India, and, therefore, the amendment would require to be ratified in accordance with the proviso to clause 2 of article 368 of the Constitution of India. 3. The paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and therefore is a severable part. 4. The paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of Statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under article 136,226 and 227 in so far as infirmities based on violations of constitutional mandates, mala fides, non compliance with the Rules of Natural Justice an perversity, are concerned. 5. It would be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the High Office of the Speaker, merely because some of the speakers are alleged, or even found to have discharged their functions not in keeping with that great tradition of that High Office.

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6. The expression ‘any direction’ occurring in Para 2(1) (6) of the Tenth Schedule requires to be construed harmoniously with the other provisions and appropriately confined to the objects and purpose of the Tenth Schedule. 7. The meaning to be given to ‘split’ must necessarily be examined in a case in which the question arises in the context of its particular facts. No hypothetical predications can or need be made. Keeping in view the consequences of the disqualification of the membership of a House, it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore knowledge of the consequences flowing from his conduct to voting or abstaining from voting or abstaining from voting contrary to such a direction. SOME IMPORTANT JUDGMENTS AND RULINGS ON THE TENTH SCHEDULE IN INDIA Kihota Hollohon vs. Zachilhu and Others8 Issue 1- Whether the right to freedom of speech and expression is curtailed by the Tenth Schedule. Issue 2- Whether paragraph 7 of the Schedule barring the jurisdiction of courts in cases of disqualification is constitutional. Issue 3- Whether paragraph 6 of the Tenth Schedule granting finality to the decision of the Speaker/ Chairman is valid. The Court held that the provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution. The court on the second issue held that the paragraph 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. 8 AIR 19993 SC 412

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On the third issue court was of the view that the provisions grant finality to the orders of the Speaker, the provision is valid. However, the High Courts and the Supreme Court can exercise judicial rev iew under the Constitution. Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen. Ravi S Naik v. Union of India 9 Issue- Whether only resignation constitutes voluntarily giving up membership of a political party. Judgment- The words “voluntarily giving up membership” have a wider meaning. An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party. G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly 10 Issue- Whether a member can be said to voluntarily give up his membership of a party if he joins another party after being expelled by his old political party. Judgment -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, he can be said to have voluntarily given up membership of his old party. Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative Assembly 11 Issue- Whether a Speaker can review his own decision to disqualify a member under the Tenth Schedule. Judgment-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. 9 AIR 1994 SC 1558

10 1996 2 SCC 353

11 1993 2 SCC 703

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Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors.12 Issue- When can a court review the Speaker’s decision making process under the Tenth Schedule. Judgment- If the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties. Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors.13 The Andhra Pradesh High Court had to decide, inter alia, the question of whether the Speaker, while exercising jurisdiction, can decide whether or not a Legislator belongs to a particular Legislature party. Holding that a Speaker could indeed decide thus, the Court said that if, in deciding the question of a member’s disqualification depended upon an answer to which political party had set such member up and whether or not he belonged to such party, he should be allowed to decide such question. In the words of the Court, “there is nothing in paragraphs 1, 2, and 6 of the Tenth Schedule which fetters exercise of jurisdiction by the Speaker to decide this question.” D. Sudhakar v. D.N. Jeevaraju14 In an order dated February 14, 2011, the Karnataka High Court in this case had held that when an independent member of a legislative assembly becomes a minister in a government formed by the single largest political party, he loses his independent character and becomes liable to disqualification on the ground of defection. Balchandra L. Jarkiholi v. B.S. Yeddyurappa15

12 (2007) 4 SCC 270

13 (2009) 3 ACT 324

14 (2011) 6 SCC 381

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Brief Facts of The Case- On 6th October, 2010, 13 members of the Karnataka Legislative Assembly belonging to the Bharatiya Janata Party, were convinced that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution and that Shri Yeddyurappa had forfeited the confidence of the people as the Chief Minister of the State. Accordingly, in the interest of the State and theheaded by Shri B.S. Yeddyurappa and withdrew their support to the said Government. On the basis of the aforesaid letters addressed to him, the Governor addressed a letter to the Chief Minister, Shri B.S. Yeddyurappa; on the same day (6.10.2010) informing him that letters had been received from 13 BJP MLAs and 5 independent MLAs, withdrawing their support to the Government. A doubt having arisen about the majority support enjoyed by the Government in the Legislative Assembly, the Governor requested Shri Yeddyurappa to prove that he still continued to command the support of the majority of the Members of the House. On the very same day, Shri B.S. Yeddyurappa, as the leader of the BJP Legislature Party in the Karnataka Legislative Assembly, filed an application before the Speaker under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, being Disqualification Application No. 1 of 2010, praying to declare that all the said thirteen MLAs elected on BJP tickets had incurred disqualification in view of the Tenth Schedule to the Constitution. Show-Cause notices were thereafter issued to all the 13 MLAs on 7th October, 2010, informing them of the Disqualification Application filed by Shri Yeddyurappa stating that having been elected to the Assembly as Members of the BJP, they had unilaterally submitted a letter on 6th October, 2010 to the Governor against his Government withdrawing the support given to the Government under his leadership. The Appellants were informed that their act was in violation of paragraph 2(1) (a) of the Tenth Schedule of the Constitution of India and it disqualified them from continuing as Members of the Legislature. Time was given to the Appellants till 5 p.m. on 10th October, 2010, to submit their objections. When the hearing to this particular issue was held the speaker held that the MLAs have voluntarily given up their membership and thus liable to be disqualified from the Membership of State Assembly via provisions mentioned in Paragraph 2(1) (a) of the X Schedule of the 15 (2011) 7 SCC 1

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Indian Constitution. A Writ Petition was filed by the Appellants in Karnataka High Court at Bangalore which was dismissed by Divisional Bench vide Judgment dated 15.11.2010 against which the present Civil Appeal lies. Issue InvolvedSix issues had arisen in the appeals and they are reproduced herein below: (i) The extent and scope of Judicial Review available against the order of the Speaker passed in exercise of powers under the Tenth Schedule to the Constitution. (ii) Whether the Karnataka Disqualification Rules framed in exercise of powers under paragraph 8 of the Tenth Schedule are directory and procedural in nature and whether judicial review is available against an alleged breach of the said Rules? (iii) Whether the Speaker's order impugned herein is mala fide? (iv) Whether Speaker's order can be said to be vitiated on account of noncompliance with the principles of natural justice? (v) The scope of paragraph 2(1) (a) of the Tenth schedule; and (vi) Whether the Speaker's inference from the conduct of the MLA's in the present case that they have given up the membership of the political party to which they belong, can be said to be 'perverse'? JudgmentIt was held, Speaker did not take into consideration rule of evidence that person making an allegation has to prove same with supporting evidence. Mere fact that allegation was not denied, did not amount to same having been proved on account of silence of person against whom such allegations were made. There was nothing on record in support of said allegations Speakers action amounted to denial of principles of natural justice to Appellants. It also revealed partisan trait in Speakers approach in disposing of Disqualification Application. There was no compulsion on Speaker to decide Disqualification Application in a great hurry within time specified by Governor to Speaker to conduct Vote of Confidence in Government. Such course of action was adopted by Speaker; since the Vote of Confidence on floor of the House was slated Element of hot haste was also evident in the action of the speaker. It was further held, under Paragraph 2(1) (a) of the 10th Schedule, Speaker functions in quasi-judicial capacity, which makes order passed by him in such capacity, subject to judicial review. Paragraph 2(1)(a) of the 10th Schedule enables Speaker in quasi-judicial 23 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

capacity to declare that Member of House stands disqualified for reasons mentioned in Paragraph2(1)(a) of the 10th Schedule to the Constitution Proceedings conducted by Speaker on Disqualification. Application did not meet twin tests of natural justice and fair play. Speaker proceeded in matter as if he was required to meet deadline set by Governor, irrespective of whether, in process, he was ignoring constitutional norms set out in 10th Schedule to Constitution and Disqualification Rules, 1986, and in contravention of concept of fair hearing Show Cause Notices were issued within time fixed by Governor for holding the Trust Vote. Court set aside impugned order of Speaker disqualifying Appellant and the Appeal filed by the appellant was allowed. Under paragraph 2(1) (a) of the X Schedule, Speaker functions in quasi-judicial capacity, which makes order passed by him in such capacity, subject to judicial review. Jagjit Singh vs. State of Haryana 16 Judgment- the Supreme Court held that the speaker while exercising power to disqualify member acts as a criminal and though the validity of the orders, thus passed can be questioned in the writ jurisdiction. The orders can be challenged on the ground of ultra vires or mala fide or having been made in colourable exercise of power based on extraneous and irrelevant considerations. The orders however would be in nullity if rules of Natural Justice are avoided. Speaker Haryana Vidhan Sabha vs. Kuldeep Bishnoi & Ors. 17 Held: - The High Court assumed the jurisdiction which it never had in making the interim order which had the effect of preventing the five MLAs in question from effectively functioning as Members of the Haryana Vidhan Sabha. The direction given by the learned Single Judge to the Speaker, as endorsed by the Division Bench, is, therefore, upheld to the extent that it directs the Speaker to decide the petitions for disqualification of the five MLAs within a period of four months. The said direction shall, therefore, be given effect to by 16 AIR 2007 SC 970

17 DATED:28.9.2012 CIVIL APPEAL NO. 7125 OF 2012 (Arising out of SLP(C) NO. 54 OF 2012)

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Speaker. The remaining portion of the order disqualifying the five MLAs from effectively functioning as Members of the Haryana Vidhan Sabha is set aside. The said five MLAs would, therefore, be entitled to fully function as Members of the Haryana Vidhan Sabha without any restrictions, subject to the final decision that may be rendered by the Speaker in the disqualification petitions filed under paragraph 6 of the Tenth Schedule to the Constitution. The Speaker shall dispose of the pending applications for disqualification of the five MLAs in question within a period of three months from the date of communication of this order.

Recent Orders on Disqualification by the Speaker for Defection :

• Shri Rajeev Ranjan Singh “Lalan” vs. Dr. P.P. Koya, JD(U), (January 9, 2009). Dr. Koya defied a party whip requiring him to be present in the House and vote against the Motion of Confidence for the government. He claimed he was too ill to be present in the House. The Speaker concluded that Dr. Koya abstained from voting by remaining absent, and the evidence of the ‘illness’ is not sufficient to conclude that he was so ill that he could not be present in the House. • Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad, JD(U), (October 3, 2008). Shri Prasad defied a party whip requiring him to be present in the House. In his defence, he denied that any whip was issued or served. The Speaker held that in view of the fact that there is evidence to show that the whip had been delivered to Shri Prasad’s house, and had been duly received, it cannot be said that Shri Prasad had no knowledge of the whip. • Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress, (September 10, 2008). The INC alleged that Shri Bishnoi often dissented from, and criticized the Congress government publicly, and had demanded the dismissal of the government in Haryana. The Speaker held that a person getting elected as a candidate of a political party also gets elected because 25 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

of the programs of the party. If the person leaves the party, he should go back before the electorate. • Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP, (January 27, 2008). It was alleged that Shri Akhlaque joined the Samajwadi Party in a public meeting. It was alleged that at this meeting, Shri Akhlaque had said that at heart, he had always been a member of the SP. The Speaker reasoned that there is no reason why news clippings and stories in the media would be untruthful. The Speaker therefore held Shri Akhlaque disqualified for having voluntarily given up membership of the BSP. • The most recent case relating to anti-defection is from the Karnataka State Legislature where B.J.P. is the ruling party and 14 members of B.J.P. and 5 independent members sent a letter of discontent against the Chief Minister. A complaint was made against them and speaker disqualified them from their membership. The case is pending in the S.C. ROLE IN MODERN DEMOCRACY Anti-defection case: SC relief for Amar Singh, Jaya Prada 18 NEW DELHI: Giving relief to expelled Samajwadi Party MPs Amar Singh and Jaya Prada, the Supreme Court directed that no action shall be taken against under the Anti-Defection Law in the event of their defying a party whip. A bench headed by Altamas Kabir passed the order while referring to a larger Constitution bench the question as to whether an expelled member could be disqualified under the law, if he chooses to defy a party whip. Both Singh and Jaya Prada had sought interim stay on any possible action against them in case they decided to vote in favour of Women's Reservation Bill to which the SP is fiercely opposed to.

18 PTI NOVE,BER 15,2010 26 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

The apex court had on November 10 decided to make the reference after Attorney General G E Vahanvati agreed that the issue needs to be settled by a larger bench as the apex court's earlier judgement in the Vishwanathan case was not clear on certain aspects of the antidefection law. It took the decision after hearing in detail Vahanvati and senior counsel Harish Salve and K K Venugopal, appearing for Singh and Jaya Prada. The two leaders had contended that they have landed in a piquant situation as expelled members, they apprehend disqualification under the anti-defection law if they choose to defy party's whip on any issue in Parliament. The counsel for two parliamentarians argued that the anti-defection law could be evoked only against those who either defect from the party or defy its whip while being in the party. But, in their case, they contended, the MPs did not defected from the party but were expelled, and as unattached members, they were not amenable to the party's whip. Earlier, the apex court had sought the Attorney General's opinion on the plea of Singh and Jaya Prada that they should not be disqualified as Members of Parliament after their expulsion from the Samajwadi Party. The two sacked MPs had moved the apex court fearing they may be disqualified for not abiding by the party whip in Parliament in view of the apex court verdict in a case in 1996. As per the interpretation of the anti-defection law by the Supreme Court in 1996, a member elected or nominated by a political party continues to be under its control even after his or her expulsion. They felt the apex court's interpretation of the Tenth Schedule of the Constitution impinged upon fundamental rights of the expelled members, including their rights to equality, free speech and expression and life under articles 14, 19 and 21 respectively. Both the leaders were suspended from the SP on February 2 for alleged anti-party activities.

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They had pleaded before the Supreme Court that the provisions of the Tenth Schedule, which deals with disqualification of MPs, are not applicable to the expelled members of a political party. Challenging the apex court's 1996 verdict, the leaders had contended that the court had erroneously interpreted the Tenth Schedule, while holding that its provisions apply even to the expelled members if they join a new political party. They had submitted that the Viswanathan case ruling had also led to an anomalous situation where a party makes its expelled member abide by its whip even after expelling him from the party and the failure to adhere to such whip results in disqualification of the expelled member from the House. In their petition, they had submitted the ruling in the Viswanathan case render them ineligible from both joining or forming a new political party due to the fear of disqualification under Clause 2(1)(a) of the anti-defection law. BELOW IS A LIST OF LEADERS WHO QUIT PARTIES AS THE LOK SABHA ELECTIONS GET CLOSER19:-

Jasa Barad – He was the sitting MLA from Somnath constituency of Junagadh district. He left the Congress to join BJP. D. Purandeswari – A former Union minister and daughter of famous actor-politician NTR quits Congress to join BJP. Jagdambika Pal – He was the chief minister of Uttar Pradesh for one day and now a part of BJP cadre. Bavku Undhad - Congress MLA from Lathi assembly constituency of Amreli district who left Congress to join BJP. Satpal Maharaj – The senior Congress leader who has huge following in hilly area (Uttarakhand) has recently resigned from the Congress and joined the Bharatiya Janata Party (BJP). Rajendrasinh Chavda – Congress MLA from Himmatnagar in Sabarkantha district. He resignation from Congress to see Narendra Modi as a PM of the country.

19 www.prs india .org 28 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

CRITICISM OF ANTI-DEFECTION LAW i. On Splits and Mergers: this exemption has been given solely based on the number of people defecting. Thus if the requisite number defect, they are not hit by the disqualification. There appears to be no rationale behind this exemption as 2/3rd of the party may merge due to the lure of Office; should this defection be allowed simply because of the greater number involved?’ doesn’t such a defection also threaten to undermine the core of India’s Democracy which this law is supposed to protect? Thus this provision does seem irrational as the motivation behind an individual and a mass split could well be the same. The purpose of this law would have better been served if the law were to distinguish based on the reasons behind the Split; so the reason genuinely based on the needs of the member’s constituency. Then an exemption ought to be given irrespective of the number of members involved in the split. This would ensure that a member does not breach the trust reposed in him by the electorate. ii. Defection v. Dissent: In this context, a distinction needs to be made between “Defection” and “Dissent”. All forms of dissent do not amount to defection. In this light, a member would be free to vote as he wishes on certain important public matters and not as the party directs him to. This would ensure that the true democratic spirit 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 that member’s constituency he should be given freedom to vote against the discretion of the party. That is the true meaning of the representative democracy whereby the needs of the electorate are taken into account. It would be more rational to take into account the motive behind 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. iii. Speaker’s Power: The Speaker in India is a Political person who does not sever his political connections after being elected. Considering this probability there is no

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justification whatsoever for this provision in the Xth Schedule. It in effect empowers the Speaker to manipulate the situation to suit the party he favors. iv. Decision of Speakers: One problem which is a direct off-shoot of the Tenth 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 setup as similar situations have been treated differently by different Speakers. This has led to a great deal of uncertainty prevailing about what the law actually provides. This problem has been compounded by the practice of certain Speakers declaring persons expelled from the party membership as unattached members and allowing them to freely cast their votes. This is not provided for the Tenth 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 associated 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 manipulations. Thus there are some glaring anomalies present in the existing law on anti-defection which acts as obstacles and prevent the achievement of its stated objectives.

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CONCLUSION Anti-defection law when it was passed, it aimed at bringing down the political defect but due to ever increasing political dishonesty and corruption this law never evolved properly and now a question have arose that ‘whether achieving the goals of this law a reality or a myth?’ Politicians found loopholes in this law and used it for their own benefit. It is high time that a watchdog should be provided to our Parliament and there is a need for our constitutional pundits to revisit the issue to combat the menace of corruption and defection which has eroded the values of democracy. Social activists like Anna Hazare and now public figures like Baba Ramdev are doing their best with the help of citizens and using the method of ‘non-violence’ and ‘satyagrah’ which were adopted by the father of the nation ‘Mahatma Gandhi’ to eradicate Britishers from the country and doing their best to make sure that our sleeping government should wake up and start taking steps towards eradicating political corruption and only this will help in achieving 31 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

the goal which was set while passing this law. This law can also work if certain recommendations mentioned above are taken into consideration and an amendment be made in this law. In the end I would like to quote that “ a government, for protecting business only, is about a carcass, and soon falls by its own corruption and decay,” so the government has a duty to stand and deliver now and not let this law turn into a myth .

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