India being of the world’s biggest democracies faces certain peculiar problems, which are not so common and experienced in other powerful and established democracies. One such hurdle is the regular practice of defection which has plagued the Indian political setup. Defection among political parties takes place very often and shakes the foundation and stability of the political parties as well as the democracy as a whole. To curb and eradicate this practice, the Anti-Defection law was enacted through the 52nd Constitutional Amendment in 1985 and was made a part of the 10th Schedule of the Constitution. Since then, governments in their tenure have diligently tried to make amendments to this schedule in order to create gaps and ambiguities in order to escape from this law and further the evil of defection to secure their political interests.
Further, in the last two decades, individual and mass defections coupled with ‘horse-trading practices’, have cast some serious doubt about the effectiveness of the anti-defection law. The Supreme Court over the years have taken upon itself to make sure this law is not exploited due to inherent political interests rather is given clarity while complying with the principles of fairness and natural justice. Although the law hasn’t become anywhere close to perfect, it has certainly improved by leaps and bounds under the supervision of the Supreme Court. Various amendments have been brought to the Anti-defection law over the years as well as many landmark judgments delivered by the Supreme Court to uplift this law to higher standards.
EVOLUTION OF THE ANTI-DEFECTION LAW BY THE LEGISLATURE
Origin of the law:
The evil of defection first came into light in 1967 when the ruling party lost control of several state governments due to MLA’s defecting and changing their political allegiance. In order to counter this problem, P Venkatasubbaiah, then MP of the Lok Sabha recommended setting up of a committee in order to find solutions to tackle this evil of defection.
Lok Sabha set up the committee to tackle political defections under the leadership of then Home Minister Y B Chavan from 1968-69 which was then referred to as the Chavan Committee. The committee defined defection as a ‘National Malady’ which was eating into the very nature of democracy. The committee recommended a bar on members of parliament who have defected from holding ministerial positions for a year as well as suggested reduction of the council of ministers in the centre and state to curb the problem of mass defections.
Framing and Passing of the Law in the Parliament:
Following the recommendations of the committee, 2 legislative attempts were made through the 32nd and 48th Constitutional Amendment Bills in 1973 and 1978 respectively, however, both were unsuccessful by the reason of being lapsed and withdrawn. Finally in 1985, the third attempt was made under the 52nd Constitutional Amendment Act which was successful and added the Tenth Schedule laying down the Anti-defection law.
Amendments made to the Tenth Schedule:
Seeing the little to no decline in the practice of defection, the parliament, complying with the recommendations of the Chavan Committee Report, introduced the 91st Constitutional Amendment Act, 2003 which added Articles 75(1A) and 164(1A) implementing a ceiling on the council of ministers to not exceed 15% of the total members of the house in the parliament and state legislature respectively. The amendment added Articles 75 (1B) and 164 (1B) which disqualifies a member as a minister if the member has been disqualified under the Tenth Schedule. Article 361(B) was also added wherein disqualified members will be barred from holding any remunerative political position under the state and central government.
EVOLUTION OF THE ANTI-DEFECTION LAW BY THE JUDICIARY
Although the legislature achieved to pass a law which would address and remedy the evil of defection in the political sphere, there were certain issues vested within several clauses and paragraphs under the Tenth schedule which brought up different challenges and criticisms before the judiciary. The Supreme court in various different landmark cases have delivered judgments addressing these challenges and issues which till today stand as the pillars supporting the Anti-defection law trying to bring better clarity to it as well as remedying errors made by the legislature while framing this law. Challenges that were brought up before the Supreme Court were the following:
I. Voluntary giving up of one’s membership as a ground for disqualification:
Paragraph 2(1) of the Tenth Schedule deals with the grounds and circumstances for disqualification of a member. Under this Paragraph, the first ground has been defined in Sub-Clause (a) which is voluntarily giving up one’s membership. Due to the ambiguity regarding what would constitute ‘voluntary giving up of membership’, the Supreme Court in the case of Ravi S. Naik v. Union of India[i] went on to state that the phrase has been often misconstrued to be the act of resignation and that it has quite a wider connotation to it. Even in the absence of such resignation, by the sole conduct and actions of the member, inference can be drawn as to whether he has voluntarily given up his membership.
The court through other different judgments has also listed instances of activities which if performed by the member would be a ground for disqualification under Sub-Clause (a) such as:
(i) An expelled member joining a different political party will result into disqualification as expulsion from a political party will not affect the membership of the house and therefore such expulsion will not lead to loss of membership of vacancy in the house.[ii]
(ii) An act of giving a letter to the governor requesting for the other party to form the government would amount to such voluntary recusal of membership.[iii]
(iii) Disqualification cannot be incurred solely due to the reasons of providing support or becoming a minister of the government as that doesn’t result in one joining a particular party thereby never giving up one’s independent status.[iv]
II. Curtailment of Speech and Dissent in Parliamentary proceedings:
A debate regarding the constitutional validity of Paragraph 2(1) Sub-Clause (b) has been taking place since the enactment of the 10th schedule as it provides that a member would incur disqualification if he votes or abstains from voting against the party’s directions/whip. This provision was challenged before the Supreme Court in the case of Kihoto Hollohan v. Zachillhu [v], however, the court proposed this to be a valid provision citing reasons such as often the views expressed by parliamentarians have not led to any substantial modification in the proposals and the fact that side effects and fall out might affect and hurt even honest dissenters and conscientious objectors, but these are the usual plus and minus of all areas of experimental legislation.
Due to the largely ineffective solution proposed by the Supreme Court, this provision continues to suppress the freedom of speech and expression as well as association under Article 19(1)(a) and 19(1)(b) respectively. It destroys the idea of free and fearless voting in the parliament while removing any scope of dissent or discussion in decision making rendering an individual his party’s puppet. It inherently goes against Article 194 and 105 of the Constitution of India which provide immunity to the members of parliament regarding any proceedings in the parliament.
III. Speaker as the final arbiter in disqualification proceedings:
In several cases before the Supreme Court, questions were also raised regarding the constitutional validity of Paragraph 6(1) which states that the speaker shall the final arbiter in proceedings regarding disqualification of a member. In furtherance to its constitutional validity, Supreme Court was also asked to provide clarity upon the nature of the Speaker’s power and whether the office of the speaker will be termed as tribunal.
The court in case of Kihoto Hollohan[vi] held that since the disqualification proceedings have two parties against and an authority decides the dispute by use of judicial power, such authority is a tribunal as it does not have all the trappings of a court. While determining the constitutional validity of the Sub-Clause in affirmative, the court went on to explain that, although the speaker’s decision is final in proceedings of disqualification, such statutory finality does not detract the power of judicial review under Articles 32, 136, 226 and 227.
IV. Speaker’s decisions barred from any judicial review:
Paragraph 7 was the most controversial provision which blatantly attacked as it barred the jurisdiction of High Courts and Supreme Courts in respect of any matter connected with the disqualification of a member of a House under this Schedule. The court in the case of Kihoto Hollohan [vii] held the provision to be unconstitutional as it denies the right to approach the judiciary as well as of judicial review enshrined under Articles 32, 136, 226 and 227. Further, under Article 368(2) there requires half of the state legislatures to ratify this provision however no such ratification was received and therefore, the court while applying the doctrine of severability, declared Paragraph 7 to be unconstitutional.
V. Scope of Judicial Review exercised by the courts:
In the very recent judgment delivered by the Supreme Court in the case of Keisham Meghachandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly [viii], the court went on to extensively discuss the scope of the Judicial Review that can be exercised by the High Courts and Supreme Court in cases of disqualification. The court held that judicial review under Article 136, 226 or 227 is only confined to jurisdictional errors only based on violation of constitutional mandate, mala fides, and non-compliance with rules of natural justice and because the failure on the part of the speaker to decide the disqualification petition is a jurisdictional error as mandated by the constitution, judicial review can be exercised under such cases.
Scope of Judicial review under the Tenth Schedule which is a question that had been discussed in many cases over the years but has never achieved finality of absolutism in all the spheres which the present case has successfully provided thereby essentially being a gospel for reference in case any issue arises in the future upon the power of the High Court or Supreme court of judicial review under the Tenth schedule.
VI. Apprehension towards speaker being a suitable adjudicating authority:
Although in multiple cases over the years questions and fears regarding speaker being a valid and suitable adjudicatory authority have been brought up, only the minority judges have attempted to express their opinion on the same against the speaker. This fear of the Speaker being unsuitable body acting from a partisan position was envisioned by the minority Judge J. Verma in Kihoto Hollohan[ix].
In Keisham's case [x], J. Nariman suggested the Parliament to rethink how Speaker as a quasi-judicial authority, continuing to belong to a particular party could impartially adjudicate disputes. He was of the opinion that 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 could replace the speaker in the Union and State Governments as a swift and impartial arbiter of disputes regarding political defections under the Tenth Schedule. The 170th Law Commission, 1999 also recommended that the President or the Governor, as the case may be, should be made the authority for deciding the question of disqualification based on an enquiry conducted by the Election Commissioner.
CONCLUSION
Despite the very many attempts by the legislature as well as the courts to make an anti-defection law that would counter the problem of defection in an efficient manner, one of the main reasons of their defeat is political appeasement and the obligation upon them to make certain decisions that would favour political interest rather than making them in order to rectify the flawed law.
There are provisions which go against the very foundation of democracy but are swiftly avoided by the courts with a less than satisfactory explanation for the same. The law is an out-dated one which does not account for the new practices adopted by the parties to escape disqualification. The law also upholds the speaker to a higher standard and does not take into account his own political interests that may cloud his judgment. A major overhaul is required to the Anti-defection law accommodating laws which provide more platforms of discussion and dissent to the parliamentarians rather than discouraging them by labelling their opinions as inconsequential.
ENDNOTES
[i] Ravi S. Naik v. Union of India 1994 SCR (1) 754
[ii] G. Viswanathan vs The Hon'ble Speaker of Tamil Nadu, 1996 SCC (2) 353 [iii] Rajendra Singh Rana v. Swami Prasad Maurya, AIR 2007 SC 1305. [iv] D.Sudhakar & Ors vs D.N. Jeevanraju & Ors, (2012) 2 SCC 708 [v] Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412.
[vi] Ibid
[vii] Ibid
[viii] Keisham Meghachandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly, 2020 SCC Online SC 55.
[ix] Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412.
[x] Keisham Meghachandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly, 2020 SCC Online SC 55.
ABOUT THE AUTHOR
This blog has been authored by Saumya Bazaz who is a 2nd Year B.A., LL.B. (Hons.) student at Gujarat National Law University, Gandhinagar.
[PUBLICATION NO. TLG_BLOG_20_3904]
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