constitution

Anti-Defection Law – A case for review

The thrust of this article is in regard to   the need to revisit and review the Anti- Defection Law contained in the Tenth Schedule to the Constitution of India. Nevertheless for having a holistic view I felt it appropriate to   first   dwell upon   the evolution of Anti-Defection Law in India and salient features of the Anti-Defection Law.

‘Vox Poupli’ is the soul of a democratic system of governance. The essence of  Democracy is that peoples’ voice is heard and taken forward in having desired impact upon the governance of the country through their elected representatives viz Parliamentarians and legislators .During elections  to Legislative Bodies , people choose their representatives on the basis of personal trust which they repose in candidates for elections and also the political parties which fielded the candidates, ideologies which they hold , assurances made etc. Hence once a candidate for election wins and becomes a Member of Parliament or State Legislature(s) , it is but natural for people who elected them to take up their causes and there is also an obligation upon legislators who got elected to live up to their  expectations .

Defections by legislators after being elected as a candidate from a particular political party or as an independent , subsequently to another party, is politically unethical and tends to strike at the very roots of credibility of a democratic polity.

      As for the etymology of the term ‘defection’, dictionary meaning traces the origin to the Latin word ‘Defectio’  indicating an act of abandonment of a  person or a cause to which such a person is bound by reasons of allegiance or duty, or to which he has wilfully attached herself/himself .Defection thus connotes the process of abandoning a cause or withdrawing from it or from a party or programme.

Coming to political context, traditionally this phenomenon is  known as ‘floor crossing’ in the British House of Commons where a legislator changed allegiance when she/he crossed the floor and moved from the Government to the Opposition side or vice versa.

Evolution of Anti-Defection Law in India

    In late sixties, the phenomenon of changing political party for reasons other than ideological , engulfed the Indian polity. The alarming proportions during 1960s gave rise to serious thought for enacting legislation to curb the menace.The genesis of the endeavours towards bringing forward a  legislation in India for curbing the malaise of defections can be traced to a private member’s resolution moved in the Fourth Lok Sabha on 11 August, 1967 by Shri P. Venkatasubbaiah.

   Matter was also actively deliberated upon by Presiding Officers’ Conference held in New Delhi on 14 and 15 October, 1967.Shri Venkatasubbaiah’s resolution was discussed in Lok Sabha on 24 November and 8 December, 1967.In consonance with opinion expressed in the resolution a Committee on defections was set up by the then Government.On 18 January 1969, the Report of the Committee was laid on the Table of Lok Sabha. Report which though could not provide adequate solution to the problem of defection, was the first ever foray to check defections.

   During Fifth Lok Sabha on 13 December, 1973 a motion for reference of the Constitution (Thirty Second Amendment) Bill ,1973 to a Joint Committee of Houses of Parliament was adopted in the Lok Sabha. On 17 December, 1973 , the concurrence motion in this respect was adopted in the Rajya Sabha .The Joint Committee of the Houses of Parliament became defunct upon dissolution of the Fifth Lok Sabha.

During Sixth Lok Sabha on 28 August ,1978, another attempt was made in this direction by bringing forward the Constitution ( Forty-Eighth Amendment ) Bill, 1978 in Lok Sabha .In  view of stiff opposition , the Minister – in –charge of the Bill withdrew the motion for leave  to introduce the Bill by the leave of the House.

Advent of Anti-Defection Law

During Eighth Lok Sabha during the very first session , the President of India in his address to both Houses of Parliament announced that the Government intended to introduce in that session a Bill to outlaw defections.

  On 24 January, 1985, the Government introduced  the Constitution (Fifty Second Amendment ) Bill , 1985. The Bill was passed by Lok Sabha  and Rajya Sabha on 30 and 31 January, 1985 respectively. The Bill as passed by both the Houses of Parliament was assented to by the President of India on 15 February, 1985.

The Act , which came into force w.e.f. 1 March, 1985 added Tenth Schedule to the Constitution which contains the Anti – Defection Law. Thus came into being the Anti -Defection Law in India.The Members of Lok Sabha (Disqualification on ground of Defection Rules) 1985(Anti Defection Rules) framed by the Speaker , Lok Sabha ( in terms of para 8 of the Tenth Schedule) for giving effect to the provisions of the Tenth Schedule)  came into force w.e.f 18 March, 1986.

Anti-Defection Law – salient features

Legislative intent

• To  prohibit defections by stipulating that the defectors by their act of switching party loyalties could lose their membership of the House.

Tenth Schedule to the Constitution

• The Constitution ( Fifty-Second Amendment ) Act 1985 amended articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of  Parliament and the State  Legislatures and added a new schedule (ie Tenth Schedule) to the Constitution setting out certain provisions as to disqualification on ground of defection.

Grounds on which disqualification from membership can be invoked

In terms of provisions of para 2 of the Tenth Schedule an elected member of Parliament or State Legislature and a nominated member of Parliament or State Legislature[ who is a member of a political party at the time he takes her/his seat] would be disqualified :

• If he voluntarily gives up his membership of such political party [Para 2(1) (a)]
• Votes or abstains from voting in the House contrary to any direction of such party [if such voting or abstention has not been condoned by concerned political party or authority within  15 days of date of such voting or abstention[Para 2(1)(b) ]

Other provisions

• An independent member of Parliament or a State Legislature will be disqualified if the she/he  joins any political party after her/his election[Para 2 (2)]
• A nominated member of Parliament or a State Legislature who is not a member of a political party at the time of her/his nomination and who has not become a member of any political party before the expiry of six months from the date on which takes her/his seat shall be disqualified if member joins any political party after the expiry of said period of six months[ Para 2(3)]

Exemption from disqualification provisions

• The Anti Defection Law as enacted in 1985 provided that no disqualification would be incurred where split in a legislature party is claimed provided that in the event of split in the legislature party, not less than one-third of its members decide to quit the party[para3].This provision [i.e. para 3] has since been omitted by Constitution (Ninety- First Amendment) Act,2003 .Hence now split in a legislature party is no longer an exemption from disqualification provisions.

• In terms of provisions of sub para (1) of para 4 no  disqualification would be incurred where a member’s original political party merges with another political party and the member claims that she/he and any other members of her/his original political party (a)  have become members of such 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……Sub para (2) of para 4 provides that for the purposes of sub para (1) , the merger of the original political party of a member of a House shall be deemed to have taken place if,and only if , not less than two-thirds of the members of the legislature party, concerned have agreed to such merger.
• In terms of para 5 “ a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of 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  …(a) if he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election , and does not, so long as he continues to hold such office thereafter , rejoin that political party or become a member of another political party;or(b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office”

Decisions on questions of disqualifications

• The question as to whether a member of a House of Parliament or State Legislature has become subject to disqualification will determined by the Chairman or the Speaker of the respective House [Para 6].Where the question is with reference to the Chairman or the Speaker herself/himself it will be decided by a member of the concerned House elected by it in that behalf.
• All proceedings in relation to any question as to disqualification of a member of a House under the Tenth Schedule shall be deemed to be proceedings in Parliament within meaning of article 122 or as the case may be, proceedings in the Legislature of State within the meaning of article 212.

Bar on jurisdiction of courts

• Para 7 which was regarding bar on jurisdiction of Courts of law on decisions given by the Presiding Officers under the Tenth Schedule  had been held ultra vires by the Supreme Court of India in their majority opinion in Kihota Hollohan vs Zachilihu & Ors case on the  ground of its non-ratification by the State Legislatures .

Now I would come to the main theme of this article which is need to revisit /review of the Anti Defection.

Operation of the Anti-Defection law has revealed some shortcomings. The Short comings  in the law resulted in varied interpretation of its provisions by the Presiding  Officers. Several decisions of the Presiding Officers under the Tenth Schedule to the Constitution were challenged in Courts. Provisions of the Tenth Schedule were also challenged in various High Courts of the country as being illegal and unconstitutional. A need for removing lacunae and shortcomings of the law was, therefore, felt almost immediately after it came into force.

The first suggestion in this direction came from the Committee on Electoral Reforms under the Chairmanship of Shri Dinesh Goswami, the then Union Law Minister which in its Report submitted on 4 May, 1990 recommended certain changes in the Anti-defection Law.

In the meanwhile, all the petitions challenging the validity of the Tenth Schedule as also decisions of various Presiding Officers were transferred by the Supreme Court of India to themselves on the request of the Government of India as important questions of law and Constitution were involved, The Supreme Court of India in their judgement in the Kihota Hollohon vs. Zachilhu and others delivered on 12 November 1991, (in their majority opinion) upheld the legality and constitutionality of all the other provisions of the Tenth Schedule except paragraph 7 which provides that no Court shall have any jurisdiction in respect of any matter connected with disqualification of a member of House under the Tenth Schedule.

The Court held that paragraph 7 as ultra vires of the Constitution.The Court in their judgement also inter-alia  held that:-

1. The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review;
2. The deeming provision in paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in articles 122(1) and 212(1) of the Constitution as understood and explained in 1965( I) SCR 413 (Keshav Singh’s case) to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words “be deemed to be proceedings in Parliament” or “proceedings in the Legislature of a State “ confines the scope of the fiction accordingly.

As the observation of the Supreme Court in Kihota Hollohan’s case, that the decisions of the Presiding Officers under the Tenth Schedule were subject to judicial review, could lead to a situation of confrontation between the judiciary and the legislature, the matter was discussed in various legislative fora such as

• Meeting of Standing Committee of All India Presiding Officers’ Conference held on 20 January 1992.
• Meeting of Speaker, Tenth Lok Sabha with Leaders of Parties/Groups in the Lok Sabha held on 5 February 1992,
• Meeting of the Standing Committee of All India Presiding Officers’ Conference held on 10 February 1992,
• Emergent All India Presiding Officers’ Conference held on 11 February 1992 at New Delhi, and the All India Presiding Officers’ Conference held in Gandhinagar on 29 and 30 May, 1992.

While several other suggestions were made at these meetings,  it was unanimously  agreed by the Presiding Officers that in matters relating to Anti defection Law before Courts, they would furnish the records, if called for and respect the decisions of the Courts. They would, however, not subject themselves to the jurisdiction of  the Courts. Suggestions have also been made from time to time by various bodies/institutions for amendments in the Anti-defection Law to make it more effective.

Committee of Presiding Officers on ‘Measures to Promote Harmonious Relations between the Legislators and Judiciary’

A Committee of Presiding Officers under the Chairmanship of Shri Hashim Abdul  Halim, Speaker, West Bengal Legislative Assembly, constituted in pursuance of a decision taken at the Conference of the Presiding Officers held on 25 and 26 June 1993, in Madras, submitted a Report on ‘Measures to Promote  Harmonious Relations between the Legislatures and Judiciary in January 1994.

The Report inter-alia, contained recommendations/observations in respect of decisions given by Presiding Officers of Legislatures under the Anti-defectionLaw .The Committee explored the possibility of entrusting the power to decide cases under the Law to a judicial body without involving the Chairman/Speaker of  the House but opined that “although such an arrangement may have several  obvious advantages, it may create new areas of conflict”.

The Committee, thereafter, made several alternative suggestions as under with regard to the deciding authority under the Anti-defection Law:-

1. The concerned Chairman/Speaker may decide the case and an appeal against such decision may lie in the Supreme Court of India, if the case relates to either House of the Parliament; or the concerned High Court, if the case relates to a State Legislative Council/Assembly. In such a case, the Chairman/Speaker, who acts as a judicial authority while deciding a case under the Anti-defection Law, should not be a necessary party to such proceedings and appropriate laws should be drafted/amended to provide for appeals to be filed against such decisions in the nature of an appeal from a judgement by a court of law.
2. The concerned Chairman/Speaker may decide the case and an appeal against such decision may ‘ lie jointly with ,the President and Vice-President of India, if the case relates to the Rajya Sabha, or the President of  India, the Vice-President of India and the Speaker, Lok Sabha, if the case relates to Lok Sabha; or the Governor of the State or Chairman of the Legislative Council, if the case relates to the Legislative Council of a State; or the Governor of the State or the Speaker of the Assembly, -if the case relates to the Legislative Assembly of a State.
3. The case may be decided by a Committee of senior members of the House and an appeal against the decision may lie with the concerned Chairman/Speaker of the House,
4. Any other procedure which may be agreed upon by the three organs of the State, namely, the Legislature, the Executive and the Judiciary.

The Institutions such as the Law Commission of India, the Election Commission of India and the Presiding Officers of Legislative Bodies in India have also expressed their concern in this regard and have made suggestions for amendments to the Anti-defection Law,

The Law Commission of India under the Chairmanship of Justice B.P. Jeevan Reddy in their 170th Report on “Reform of the Electoral Laws” submitted to the Government of India in May 1999, made suggestions for amendments to the Anti defection Law.

The gist of the amendments proposed by the Law Commission of India in their 170th Report has been given as under:

• Provisions regarding splits and mergers be deleted from the Tenth Schedule.

• Whips may be issued only when the voting in the House affects the continuance of  the Government and not on each and every occasion. Such a course would safeguard both the party discipline and the freedom of speech and expression of the members.

• The term political patty may be defined as under:- Political party in relation to a member of a House, means the political party on whose ticket that member was elected and where such political party is a part of a front or a coalition formed before a general election for contesting such election, such front or coalition, provided that the Election Commission is informed -in writing by all the constituent parties in the front/coalition before the commencement of the poll that such a front/coalition has been formed.

         The National Commission to Review the Working of the Constitution under the Chairmanship of Justice M.N, Venkatachaliah in their report submitted to the Government of India  in March 2002 had also made some recommendations for amendments to the Anti -defection Law, a gist of which is as under:

• Provisions be made in the Tenth Schedule providing that all persons defecting must resign from their Parliamentary or Assembly seats and seek fresh mandate.  Provisions regarding split may be scrapped from the Tenth  Schedule to the Constitution.

• Defector be debarred from holding any public office of a Minister or any other remunerative political post at least for the duration of remaining term of existing Legislature or until fresh elections are held.

• Vote cast by a defector to topple a Government be treated as invalid.

• Power to decide questions as to disqualification on ground of defection should vest in the Election Commission instead of in the Chairman or Speaker of the House concerned.

On 22 September 1998, during the 62nd Conference of the PresidingOfficers’ of Legislative Bodies in India, the Presiding Officers deliberated on the ‘Need to review the Tenth Schedule to the Constitution’.

Presiding  Officers’ Committee to Review Anti-Defection Law

In view of the near unanimity among the Presiding Officers that the Anti -defection Law needed to be reviewed, Shri G.M.C. Balayogi, the then Speaker, 11th Lok Sabha  and Chairman of the Conference of Presiding Officers, on 13 October 1998, constituted a Committee of Presiding Officers of Legislative Bodies under the Chairmanship of Shri Hashim Abdul Halim, Speaker, West Bengal Legislative Assembly to examine the matter.

The Report of the Committee was presented at the 66th Conference of Presiding Officers of the Legislative Bodies in India held in Mumbai on 5 February 2003 and was adopted by the Conference on the same day.

The Committee in their Report entitled ‘A Review of Anti-defection Law’ recommended that the Government of  India may bring forward a constitutional amendment  to amend the Tenth Schedule to the Constitution of India on the following lines:

1. Provisions regarding splits and mergers be deleted from the Tenth Schedule. (Since deleted vide Constitution 91 st Amendment Act)
2. The term ‘voluntarily giving up of membership’ should be comprehensively defined in the Tenth Schedule.
3. Consequences of expulsions from the political party should be clearly laid down in the Tenth Schedule so as to clearly define the status, rights and obligations of expelled members.
4. An expelled member should not be victimized by the political party which expelled him. At the same time, to prevent an expelled member from taking undue advantage of his situation, certain fetters should be ‘imposed upon him such as .prohibition on his joining any legislature party in the House/Political Party outside the House or holding any ministership or any other office in the Government etc.
5. The term “Political Party” may be defined in the Tenth Schedule on the lines of definition proposed by the Law Commission of India in their 170^th Report in consultation with the Election Commission of India.
6. Nominated members should be treated at par with independent members.
7. Deciding authority in case of members of the Houses of Parliament may be  the Election Commission and the Supreme Court may be made the appellate authority. In case of the State Legislatures, deciding authority may be the respective State Election Commission and the High Court of  the State concerned may be the appellate  authority.
8. A time frame may be laid down for decisions by Election Commission in Anti-defection cases.

Court judgements on Anti Defection Law – on constitutionality of and interpretation of some provisions of Law

There have been quite a few judgements by High Courts and the Supreme Court  vis a vis Anti Defection Law. In this article though I will confine myself to briefly mentioning the main ratio laid down in only four cases , having a bearing on the aspect of  the constitutionality of the Anti  Defection Law itself and interpretation of some  its provisions.         In the early years of coming into force of the Anti -defection Law , its constitutionality was challenged in  Prakash Singh Badal and Others vs Union of  India and Others [AIR 1987 Punjab & Haryana 263] The High Court  in this case inter alia held * Para 7 of the Tenth Schedule precludes judicial review of decisions of Presiding Officers under the Tenth Schedule by High Courts and Supreme Court – Hence ,this provision requires ratification under Article 368 – Para 7 was not ratified –Hence it is invalid for non-ratification compliance of Article 368.* Para 2(1)(b) of Tenth Schedule not violative  of Article 105

       By far till date the most comprehensive judgement by Supreme Court of India has been in Kihota Hollohon vs Zachilhu and others ( as already discussed earlier in the article) wherein the Hon’ble Court barring declaring para 7 of the Tenth Schedule  as ultra vires upheld the constitutionality of the Tenth Schedule to the Constitution ( Anti -Defection Law). Also holding that the Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.(Repeated this to maintain the flow).

    In Ravi S.Naik vs Union of India & Others with Sanjay Bandekar & Another vs Union of India & Others [AIR 1994 SC 1558], the Supreme Court inter alia held that the Expression ‘voluntarily given up his membership ‘ in para 2 (1)(a) is not synonymous with resignation and has wider connotation.

     In G.Viswanathan vs Speaker , Tamil Nadu Legislative Assembly and another And Azhagu Thirunavukkarasu vs Speaker, Tamil Nadu Legislative Assembly and another [(1996) SCC 353] , the Supreme Court inter alia held * Even if the political party , by which a person was set up as a  candidate for election and was elected as a member of a House , expels such member from the party and he is treated as ‘ unattached’ by the Speaker consequent upon such expulsion ,he will continue to belong to that political party*Only when he  joins another party he will be treated to have voluntarily given up his membership of the party by which he was set up as a candidate for election*There is no “ unattached” category of members of the House under the provisions of the Constitution.

These were few landmark judgements ,now I would like to allude to the most recent judgement by the  Supreme Court in Keisham Meghachandra Singh vs Hon’ble Speaker , Manipur Legislative Assembly [2020 Indlaw SC 2/Civil Appeal no 547-550 of 2020]. It would be of interest and pertinent to note   Hon’ble Supreme Court’s following observations vis a vis time frame to decide cases under the Anti Defection Law and the deciding authority , in their judgement dated 21 January, 2020 :

• “..Paragraphs 110 and 111  in Kihoto Hollohan do not ,…, in any manner, interdict  judicial review in aid of the Speaker arriving at a prompt decision as to disqualification under the provisions of the Tenth Schedule ..Indeed , the Speaker, in acting as a Tribunal under the Tenth Schedule is bound to decide disqualification petitions within a reasonable period. What is reasonable will depend on the facts of each case , but ( except for) exceptional circumstances for which there is good reason , a period of three months from the date on which disqualification petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to. This period has been fixed keeping in mind the fact that ordinarily the life of the Lok Sabha and the Legislative Assembly of the States is 5 years and the fact that persons who have incurred such disqualification do not deserve to be MP/MLAs even for a single day …..if they have infracted the provisions of the Tenth Schedule ….”(para 28)
• “ It is time that Parliament have a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto .Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification which arise under the Tenth Schedule with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court , or some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartially , thus giving real teeth to the provisions contained in the Tenth Schedule , which are so vital in the proper functioning of our democracy.”(para 30)

All India Presiding Officers Conference at Dehradun

As mentioned earlier  , the forum of Presiding Officers of Legislative Bodies in India at regular intervals , hold conferences and have considered deliberations on topical matters relating to Parliament and Legislatures. At the All India Presiding Officers’ Conference held at Dehradun on 19 and 20 February , 2020 , the Presiding Officers inter alia held in depth and structured discussions on the subject of the Tenth Schedule and Role of Speaker.

This underscores the commitment of Presiding Officers themselves to address the challenging issues emerging vis a vis operation of Anti Defection Law.

      As for recent developments I feel it’s neither the right stage  nor  appropriate for me to proffer any comments .

      At the end I wish to stress upon the fact Anti Defection Law , was in fact a very tough law to enact in first place. Also as far as my information goes  no other country has such diverse challenges  which our democratic polity faces  vis a vis a law to bar defections.. Yes there is a strong case for review of Anti Defection Law. Through this article I have endeavoured to document the working of the Law , how over years operation of Law brought to fore  the shortcomings and lacunae and the efforts made to cope with these , the grey areas latent within the Law As the readers would observe the possible solutions /suggestions made in regard to review this Law.The incorrigible optimist that I am, I wish to conclude this article on a positive note. Notwithstanding scepticism in some quarters it needs to be appreciated that the    ongoing endeavours by Presiding Officers , Judiciary , legislators , high powered committees/commissions to address the challenges, augurs well for the efforts to make the Anti Defection Law really effective.