Analysis of Anti-Defection Law
Analysis of Anti-Defection Law
-Aviral Chandraa, Dr.Ram Manohar Lohiya National Law University, Lucknow
Recent incidents of ‘Crossing the Floor’ in the state of Manipur, Madhya Pradesh and Karnataka have highlighted the concern of stability of the legislators in one party. Now it has become rife in Indian legislative and political landscape to betray their own parties and switch to another. The people vote for their representatives and believe in them for their well-being but, these representatives not only betray their political party but even their voters for their whims and fancies. Therefore, The Anti-Defection Law was passed in 1985 to punish these miscreants.
What is the Tenth Schedule?
The insertion of the Tenth Schedule in the constitution was hard-won. In 1967, The first famous incident of crossing the floor occurred in Indian political arena, when the Haryana MLA Gaya Lal changed his party thrice within the same day. The phrase “Aaya Ram Gaya Ram” has become proverbial in Indian Politics. Then during the late 1970s, India witnessed a flurry of defections by legislators and to overcome this depravity all political parties in the parliament unanimously appointed a committee to make a report and to find a way to resolve the issue of defection. The 32nd Constitution Amendment Bill was presented in the parliament as per the recommendations of the committee to disqualify the defected members of the house. Unfortunately, because of the dissolution of the LokSabha, the bill lapsed. A second attempt was made on the same tenor and the 48th Constitution Amendment Bill was introduced in the Parliament but it lapsed again. Then ultimately in 1985, Rajiv Gandhi led government passed the 52nd Constitution Amendment Act which engrafted the Tenth Schedule into the Constitution.
Para 2 of the Tenth Schedule prescribes the grounds on which a legislator shall be disqualified. For instance, Para 2(1) states that when a legislator voluntarily relinquishes his membership from the party he/she belongs. Para 2(2) states that, when a legislator who votes or abstains from voting against the party to which he/she belongs, shall be deemed to be defecting his/her political party and is consequently disqualified by the presiding officer.
In the case of Ravi Naik v. Union of India , the Supreme Court held that if the official resignation is not given by a legislator, then the relinquishment of membership would be inferred by his/her conduct. Then in the context of Para 2(2), in the case of G. Viswanatham v. The Hon’ble Speaker, Tamil Nadu, Madras, and Another , the Supreme Court held that the legislators who publicly express their dissent to their party and support another party deemed to have resigned. Then in 2007, the Supreme Court held similar ruling in Rajendra Singh Rana v. Swami Prasad Maurya and others.
Para 4 and 5 of the said schedule prescribe the exception under Para 2 which prevents the legislators from being disqualified. The para 4 after the 91st Constitutional Amendment states that if the bloc of two-third members cross the floor to another party or chose to work as a separate group or form a new political party then they shall not be disqualified. Further, Para 5 states that if a presiding officer of either house relinquishes his membership from the party he represents shall not be disqualified.
Controversial Para 7 of the Tenth Schedule
Para 7 of the Tenth Schedule bars judiciary from entertaining a matter related to defection. Therefore the Presiding officer of a house is a sole adjudicating authority to entertain a matter relating to the Tenth Schedule.
But in the landmark case of Kihoto Hollohan v. Zachilhu & ors the Apex court, by majority judgment, repealed the Para 7 and thereby allowed appeals against the decisions of the presiding officer. However, the judiciary shall not interfere unless the presiding officer decides the matter.
But the dissenting opinion of Justice L.M. Sharma and J.S. Vermais more relevant in today\'s context as they raise concerns about the power of the presiding officer to adjudicate the dispute because the presiding officer can act in a biased manner during the decision-making process. For example, there have been very few instances of the Presiding officer of the house disqualifying the member of his party.
Recently, in the famous case of Shrimanth Balasaheb Patil v. The Hon’ble Speaker, Karnataka Legislative Assembly, the speaker of the Karnataka assembly , The chairmen of the Karnataka assembly disqualified seventeen MLAs of Congress-JD government and barred them from contesting elections in the ensuing by-polls.
The Supreme Court upheld the disqualification of the MLAs but also emphasized that the presiding officer was not authorized to proscribe the legislators to contest elections in the ensuing by-polls as Article 102 and 191 of the constitution and Section 26 of the Representation of the People Act,1951do not prevent the legislators from contesting in the ensuing by-polls.
Further, the Supreme Court in Keisham Meghachandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly, and ors. directed the parliament to set up an independent tribunal to adjudicate the matter under the Tenth Schedule impartially. The Tribunal should consist of either a retired Supreme Court judge or a retired High Court chief justice. The Supreme Court additionally observed that the speaker of the house could be biased as he belongs to the ruling party. A similar issue was raised by Justice L.S. Sharma and J.S. Verma in their dissenting opinion in the Kihota Hollohan case.
Pros of the Tenth Schedule:
● Stalwart support to the mandate: The said schedule ensures the loyalty of the elected representative to a certain extent and does not steal the mandate for their advantage.
● Stability: Due to this legislation, the legislators are prevented from switching sides.
● Punitive measures: The legislators who defect from one party to another are disqualified.
Cons of the Tenth Schedule:
●Freedom of speech and expression curtailed: The legislators cannot express his dissent against the policies of his party, thus curtailing Article 19(1)(a) of the constitution.
●Biased Chairman: The presiding officer, either does not take any action or delays his actions in some cases to favour his political party.
●Blow against democracy and constitutionalism: This legislation takes away the conscience of the legislators, which is the essential part of a democratic form of government.
The Way Ahead
In the author\'s view there are many flaws in the legislation that subverts the very concept of representative government. The legislator\'s freedom to express his dissent is requisite for the viability of a robust democracy. The members should be given independence to vote and decide as it ultimately serves the party itself, which makes a strong candidate at the grassroots.
Further, it is necessary to amend some provisions of the Representative of the People Act so that the parties become more democratic in choosing their leader.
Moreover, the power rested with the presiding officer of the house to adjudicate the matter under the tenth schedule raises concerns about bias for one\'s party and to counter this the Dinesh Goswami committee report of 1990 should be implemented. The report recommends that if any MP is liable under the tenth schedule, then the President should adjudicate the matter and in the case of MLA, the governor on the advice of election commission should adjudicate.
More than 100 MLAs and 2 dozen MPs across India have been disqualified under the Tenth schedule over the past decades. In other democracies like the United Kingdom, if a legislator defies the whip thrice, he can be dismissed from the party without losing his seat, but in India, he loses both his membership as well as his seat. In Australia, there is no such punishment for defying the whip, but they disallow such members from using some of the party’s resources. In the United States, the legislators cannot be dismissed from the party for defying the whip therefore there is no punishment. India is the only democratic country where expressing dissent against the party leads to such an extreme action, which is one of the lacunae in the legislation and should be addressed by the apex court.
References :-
1. Ravi Naik v. Union of India, AIR 1994 SCR (1) 754
2. G. Viswanatham v. The Hon’ble Speaker, Tamil Nadu, Madras, and Another, AIR 1996 SCC (2) 353
3. Rajendra Singh Rana v. Swami Prasad Maurya and others, Appeal (civil) 765 of 2007
4. KihotoHollohan v. Zachilhu & ors, AIR 1992 SCR (1) 686
5. Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, the speaker of the Karnataka assembly, AIR 2018 1094 SC
6. Keisham Meghachandra Singh v. Manipur Legislative Assembly, and ors, 6CIVIL APPEAL NO. 547 OF 2020
