By Athik Saleh T
“Aaya Ram, Gaya Ram” – this is a common phrase in use in Indian politics.
It talks about a phenomenon which is popularly known as ‘horse-trading’. Across the world, this practice is known by other names such as ‘floor-crossing’ or ‘carpet-crossing’. The phenomenon we’re talking about here is technically called ‘defection’. A term that Indians are alarmingly used to.
West Bengal is the latest in the long line of states which has witnessed the drama of politicians crossing over to their (once)rival parties.
Switching companies is something that is only now taking roots amongst youth but switching political parties in search of ‘better things’ is something that has defined the political landscape of our country.
The Advanced Law Lexicon defines defection as the crossing of the floor by a member of the legislature. Beyond being an issue of moral turpitude, defection is a legal question too.
It’s only normal to ask – what is the position of a member of the legislature who was elected as a member of one party but decides to join another party during his tenure as a member of the legislature?
In India, the legality or illegality of defection is covered 10th Schedule of the Indian Constitution. After the 1967 elections alone, 142 MP’s and 1900 MLA’s moved ships. It is in light of all this, in 1985, the Rajiv Gandhi Government brought the anti-defection law.
To understand what this particular legislation brought to the table, and how successful it has been in curbing the practice of defection, a much deeper look at the provision and its working is required.
What does the anti-defection Law say?
The slogan “Aaya Ram, Gaya Ram” was coined after Gaya Lal, a legislator from Haryana changed parties thrice in a fortnight. There were many instances of defections after that, and several efforts were made to bring this activity under the purview of a legislation to curb it.
However, all such efforts were failed as a consensus couldn’t be reached between legislators. The main issue was that it might prevent the freedom of speech that legislators enjoy inside the legislature.
Finally, in 1985, by the 52nd amendment to the Constitution, the Rajiv Gandhi Government brought anti-defection law into the fore to curb the practice of elected members jumping ships for better positions or for some other gains.
It must be noted that without the backing of the thumping majority the Rajiv Gandhi Government had in the parliament, this law may not have come to fruition.
Schedule X provides for two grounds under which an elected member of a legislature can be disqualified.
- Paragraph 2(1)(a) of the Schedule – Voluntarily giving up the membership of a political party
Voluntarily giving up the membership of the political party on whose ticket the person got elected to the legislature.
What constitutes voluntarily giving up the membership? Although it seems straightforward as to what constitutes voluntarily giving up the membership, the Courts have widened the ambit of this particular ground disqualification.
In the case of Ravi Naik Vs Union of India[1], the Supreme Court held 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 even though he has not rendered his 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”.
It is clear from the words of the court that voluntarily giving up the membership doesn’t really mean that the person has to tender his resignation.
In G. Viswanathan & Ors. Vs Honorable Speaker Tamil Nadu Legislative Assembly & Ors.[2], the Court held that giving up membership can be both expressed and implied.
In Rajendra Singh Rana Vs Swami Prasad Maurya & Ors.[3], the Supreme Court held that if a member of a legislature requests the Speaker by way of a letter to call upon the leader of the other side to form the Government, that in itself will amount to voluntarily giving up the membership of the party on whose ticket the person was elected.
- Paragraph 2(1)(b) of the 10th Schedule – When an elected member votes or abstains from voting due to the direction of the political party he is affiliated to, this becomes the second ground.
Paragraph 2(1)(b) of the 10th Schedule talks about the second ground of disqualification. This is more straightforward than the previous ground.
Accordingly, if an elected member votes or abstains from voting, and if the said voting or abstention is against the direction of the party in which he is a member of, such an elected member will be disqualified too.
However, if such voting or abstention is condoned by the political porty itself, this provision won’t be applicable.
The constitutionality of Paragraph 2 and especially the second clause was challenged in Kihoto Hollohan Vs Zachillhu[4]. The main contention was that paragraph 2 violates the rights of democratically elected representatives provided under Articles 105 and 195 of the Constitution.
The Supreme Court held that paragraph 2 of Schedule 10 does not suffer from unconstitutionality for being in violation of the right to freedom of speech of elected representatives.
Is there any exception from disqualification under the 10th Schedule?
Paragraph 4 of the Schedule deals with an exception to the rule of disqualification provided in the Schedule. Accordingly, members won’t face the ire of the 10th Schedule in case of a merger.
For this exception to be applicable, at least 2/3rd of the legislative party members must merge with another party. In such case, both sets of members, the ones who leave the party to join another party and the ones who stay with the party, will be saved from disqualification.
The earlier requirement under Paragraph 4 of the 10th Schedule was that at least 1/3rd of the member must be required for a merger to be saved from the ramification of disqualification provided in the 10th Schedule.
However, this led to mass defections and by the 91st Constitutional Amendment, the requirement was made 2/3rd.
Who decides on the question of disqualification?
Now we enter into one of the most controversial issues regarding the 10th Schedule. It doesn’t matter how strong and watertight a law is, if the adjudicator is biased, there will always be a miscarriage of justice.
In the case of the 10th schedule, which is neither foundationally strong nor watertight, the importance of the presiding officer is even more. However, to make matters worse, the adjudicating authority to decide matters disqualification is the Speaker of the house.
The 10th Schedule grants absolute discretion to the Speaker to decide on matters of disqualification. The major criticisms against the power granted to the speaker are that –
- The speaker, although legally an unbiased person, is still a member of the majority party. More often than not, defection occur defections occur when a member of the legislative party in the Opposition moves to the ruling party. This creates a conflict of interest, but the Schedule doesn’t talk about such a reality.
For instance, after the 2017 assembly elections in the state of Manipur, the Congress party had 28 seats, and the BJP had 21 seats. 31 was the required number of seats in an assembly of 60. The BJP with its allies had 30 seats.
This alliance managed to get the support of one elected member of the Congress party to reach the magic number. What is interesting is that the member of the Congress legislative party who supported the BJP and its allies never resigned from the Congress party.
The Congress MLA later became a minister in the cabinet but was expelled from the Congress party for failure to adhere to a show-cause notice issued by the party.
The party approached the Speaker regarding the disqualification of the aforesaid MLA but these petitions were not taken up for at least 3 years. It must be noted that the petition was accepted only after the interference of the Supreme Court.
The Supreme Court in Keisham Meghachandra Singh Vs The Honorable Speaker Manipur[5] has set an outer limit of three months from the date of filing for the speaker to decide on a petition related to defection.
Even after the decision of the Court, the speaker refused to act on the petitions and the court had to exercise its power under Article 142 to debar the aforementioned member from entering the assembly and from being a member of the cabinet.
- The speaker may lack the legal knowledge to decide on matters which, as we have seen, many legal intricacies. Mr. Rabi Ray in 1991, and Mr. Shivraj Patil in 1993, two speakers of Lok Sabha, had themselves expressed doubts on their suitability to adjudicate matters of defections.
Decisions of Speakers concerning disqualifications of members have been challenged countless times. Even expert committees such as Dinesh Goswami Committee (1998), Commission to Review the Constitution (2002), etc. suggested that the question regarding defection should be determined the same way disqualification on other grounds such as holding an office of profit or being of unsound mind is determined.
In those cases, it is the President/Governor for centre and state respectively who determine the disqualification. They shall act on the advice of the Election Commission in such cases.
In Shrimanth Balasahib Patil Vs Honorable Speaker of Karnataka Legislative Assembly, the Supreme Court ruled regarding the limitation on the power exercised by the Speaker in adjudicating matters of defection. The court held that:
- The scope of Speakers’ inquiry concerning the resignation tendered by a member is limited to determining whether the resignation was tendered voluntarily and genuinely. Speaker has no power to consider any extraneous factors.
- The Speaker does not have any power to describe the period for which a member is disqualified.
Is the decision of the Speaker susceptible to Judicial review?
Paragraph 7 of the 10th Schedule bars the jurisdiction of any courts with respect to decisions made under the aforesaid Schedule. As seen from the discussion above, this in turn can lead to various difficulties. Unrestricted power given to the legislature, more often than not, leads to consequences that are not sound constitutionally.
The provision barring judicial review was challenged several times and finally, the Supreme Court in Kihoto Hollohan Vs Zachillhu & Ors., held that the law governing defection provided in the 10th Schedule is valid except for the provision barring judicial review.
Paragraph 7 was held to be unconstitutional. In the judgement, the court held that any law barring the jurisdiction of courts under Articles 136, 226, and 227 must be ratified by the required number of state assemblies under Article 368(2), and since such ratification wasn’t obtained, it was held to be unconstitutional.
In the case of Shrimanth Balasahib Patil Vs Honorable Speaker of Karnataka Legislative Assembly, the Supreme Court laid down the grounds under which the decision of the Speaker can be reviewed, and they are:
- If the decision of the Speaker violates the mandate laid down by the Constitution;
- If the decision is malafide in nature;
- If the decision is perverse;
- If the decision of the Speaker violates the rules of natural justice
Conclusion
The purpose of the anti-defection law laid out in Schedule X is to curb the practice of elected legislators jump the ship or change their parties for personal benefits and by extension, the Schedule aims to provide stability in the Government.
To a large extend, these goals have been achieved. However, in the last ten years, the number of defections has alarmingly increased.
Countless legislators have changed their political affiliations in the hope of being rewarded by the ruling parties across various states. The fact that the power to decide cases of defection lies in the hands of the Speaker is one of the major reasons behind the lack of teeth of this particular law.
As we saw earlier in the discussion about how the Speaker in Manipur state assembly handled the petitions related to defections, this unchecked power in the hands of the Speaker has led to the failure of the objectives that the provision tries to achieve.
For better handling of the matter, it must be considered transferring the power to decide on cases of defections to separate committees with members from both judiciary and legislature. That way, a proper system of checks and balances can be achieved.
Also, the 10th Schedule must be amended to make reason/s which caused the defection to be the determinant factor in deciding whether the defection is legal or illegal.
The current scenario of deciding the legality of the defection based on the number of members merged with the other party more or less plays into the hands of defectors and the party which caused the defection.
Elected representatives owe a duty to the people who elected them. The political party they represent plays an important part in why people voted for them. Defecting after being elected is equivalent to breaking the trust the people placed in them.
On the other hand, staying with a political party that is not working for the benefit of the nation and the people is also equivalent to breaking the trust people placed in their representatives. A balance needs to be found in the anti-defection law so that the interests of the legislators, people, and more than anything, the country, are protected.
References
- theweek.in
- latestlaws.com
- indianexpress.com
- hindustantimes.com
- /economictimes.indiatimes.com/
- indialawjournal.org
- legalservicesindia.com
- Ravi Naik Vs. Union of India, AIR 1994 SC 1558 ↑
- G. Viswanathan & Ors. Vs. Honorable Speaker Tamil Nadu Legislative Assembly & Ors., AIR 1996 SC 1060 ↑
- Rajendra Singh Rana Vs. Swami Prasad Maurya & Ors., (2007) 4 SCC 270 ↑
- Kihoto Hollohan Vs. Zachillhu, 1992 SCR (1) 686 ↑
- Keisham Meghachandra Singh Vs. The Honorable Speaker Manipur, 2020 SCC OnLine SC 55 ↑