10th schedule of the Constitution of India: Anti-Defection Law.
Provisions related to the mechanism of Anti-Defection Law have been provided under Schedule X of the Indian Constitution.
Some incidents were taken place in different-different states regards to Anti-Defection Law like Karnataka, Madhya Pradesh, and in Manipur. All over there, we see that Anti-Defection Law became a very popular topic to discuss and now it became a news all over the country as there we can see the complete violation of the Defection law in this country by the leaders of the party. This paper will aim to think that whether we have to rethink about the need of serious reforms in Anti-Defection Law?
Firstly, we have to know the meaning of Defection:
Defection in simple terms means shifting of legislators from one party to another by monetary means.
Defection in Politics means moving of a person from one party to another party for some personal benefits. It means changing party allegiance from the party on which a person got elected to a different party. It happens when a Legislature, after having been elected from a particular party leaves it or joins the other party. Basically, Defection means that an elected representative leaves the party on whose symbol he/she had been elected and joins another party (who is bribing that elected representative by bribing him/her some money, by offering a post of a minister and that elected representative for his own personal benefits in return defects to the other party). This is defection. Defection is immoral because if any person is defecting to other party, he/she is violating or infringes the trust of his/her own voters, and this is immoral because they vote him/her because of the image and strength that he/she is holding in front of voters or because of the ideology of his/her political party. And this has to be curbed.
There is a curious case of Gaya Lal, Haryana Politician (1967).
As for the first time in Haryana, there held elections in 1967. And in that election, Gaya Lal won the election as an independent candidate. Once the result declared, Gaya Lal changed his party three times in a same day within 9 hours and a slogan was famous at that time & that is “Aaya Ram, Gaya Ram” by the Indian Law Institute in 1979 in which it was stated that from 1967 to 1969 more than 1500 party defections and 313 independent candidate defections had taken place.
There was another case which was happened in Haryana. In 1979 Bhajan Lal, he toppled the state government headed by Devi Lal and he was in position to form a government. Bhajan Lal became the Chief Minister of Haryana. A year passed & in 1980 Indira Gandhi stormed back to power at the centre and Bhajan Lal along with his 40’s MLA’S joined the congress. That is what I am saying that these Defections have to be restrained. After all this, the need of anti-defection law was put forward so in order to create strict sanctions for all those who were found guilty of such conduct. The Bill was proposed by Rajiv Gandhi for Anti-Defection Laws & the Parliament enacted 52nd Amendment Act, 1985. Schedule X was added in the Constitution of our India which we called now as Anti- Defection Laws. The main aim of this law is to prevent these defections which was done by politicians and leaders so that democracy will strengthen up by making members of parliament more loyal and honest to their own parties.
Various Provisions of Anti- Defection Law:
A member of a House belonging to any political party shall be disqualified for being a member of the House-
if he has voluntarily given up his membership of such political party; or
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 date of such voting or abstention.
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.
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.
These are various provision under the Schedule X of the Constitution of India.
Disqualification on ground of Defection not to apply in case of merger. Anti-Defection Law does not apply in case there is a merger. In case there is 2/3rd merger of a political party, merging with the other political party.
Let say there is a political party A and it has 30 members in a House if 2/3rd of these members joins the other party X; they will not be disqualified. And the remaining 1/3rd may continue to be the members of party A or they may own decide they may continue as a separate entity group neither part of A nor X. and hence Anti-Defection Law does not apply in case of merger.
There is also an exception:
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-
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
If he, having given up 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.
But here a question arises, who gets to decide whether the Legislator should be disqualified on the ground of Defection or not?
Anti-Defection Law states that the decision shall be taken by the Speaker or the Chairman of a House regarding such Disqualification and the decision taken by the Speaker of the Chairman shall be final & binding.
Landmark case law:
Matter went to the court in the famous landmark case law which was happened in 1992.
Kihoto Hollohan vs Zachillhu And Others (1992): there was a question before the Court of Law, when Speaker gets to decide whether a Legislator should be disqualified or not on the grounds of defection? Is the power of the Speaker final? Is the decision taken by the Speaker will be final and binding?
Supreme Court of India held that the decision taken by the Speaker will not be final or binding because judicial review is also a part of the basic structure of the Constitution of India. It simply means that if speaker or Chairman has taken the decision, Supreme Court will have the power to review on that decision which is taken by the Speaker or the Chairman.
Even after 1985, there was a loophole in Anti-Defection Law:
The Parliament enacted 91st Amendment Act in the year 2003 relates to the Anti-Defection Laws and restricting the size of the Council of Ministers to aid and advice the President. It also states that person who is disqualified under anti-defection law shall not be appointed as a minister nor hold any Remunerative Political Post (RPP)’ from the ongoing period of disqualification. The RPP is defined as an office, in which Salary or remuneration is paid out of the public revenue. This Amendment make this very clear that a defector is barred from holding any remunerative post till the time you are re-elected.
One more issue was there: Who can Complain to the Speaker?
Only a legislator can complain to the Speaker or the Chairman; if a legislator whether he/she should be disqualified or not. If you think that a MP, or an MLA or MLC should be disqualified under Anti-Defection Law, this decision has to be taken by the Speaker or the Chairperson of a house; only a Legislator can complain to the Speaker or the Chairperson.
A case was happened in Orissa, where four members of NCP (National Congress Party) decided to change the party and they joined the BJD of Naveen Patnayak. The president of the State NCP complains to the speaker that these four MLA’S who belong to the NCP, now they have voluntarily resigns the party as they have joined the BJD. So, disqualified them under Anti-Defection Law. But the speaker said that I can’t disqualified them although you are a president of the NCP but you are not a legislator, not an MLA of Orissa Legislative Assembly. So, I cannot disqualify them because a legislator alone can complain to me. Then, the matter was gone to the court.
Speaker, Orissa Legislative Assembly vs Utkal Keshari Parida (2013).
The Supreme Court held that Legislator alone cannot complain to the Speaker or the Chairman. Any voter can complain to the speaker or the Chairman that these are the legislators who should be disqualified under Anti-Defection Law. The Supreme court struck this down that alone Legislator can be able to complain to the Speaker or the Chairman by saying that Any voter can have “locus standi” to file complaints seeking disqualification of members of Parliament and State Legislatures.
Sri Rajendra Singh Rana & Ors v/s Swami Prasad Maurya & Ors:
In this case, the Supreme court said that the voluntarily resignation does not mean that the legislator should have to submit his written resignation, or his formal resignation, and only then on the basis of that; a Legislator should be disqualified under Anti-Defection Law. If we look at a Legislator but his conduct outside the House is such that it can be safely assumed that he has voluntarily resigned from his party, voluntarily given up the membership of his political party even without submitting formal resignation, or a written resignation, he should be disqualified under Anti-Defection Law.
There was another case which was happened in regards to the Voluntarily aspect:
Sharad Yadav and Ali Anwar; were the members of the JDU headed by the Bihar Chief Minister Nitish Kumar. Sharad Yadav openly criticised the party for aligning the BJP as he was attending the rallies of the opposition parties despite the fact that JDU party asked not to violate the directive of the Political Party. Then, matter went to the chairperson of the Rajya Sabha (M Venkiya Naidu) and then JDU filed a petition before the vice-president of India that Sharad Yadav and Ali Anwar should be disqualified under Anti-Defection Law because their conduct outside the Parliament is such that we can safely assume that they have voluntarily given up the membership of the JDU. Vice- President accepted this petition and they both were disqualified as Rajya Sabha members under Anti-Defection Laws.
Loophole in the Anti-Defection Law:
There is no time limit given in this law within which the Speaker has to take his decision for the completion of disqualification process of the defecting members. The tenth schedule has no defined procedure with definite time limits.
Judiciary is by and large helpless at the pre- decisional stage.
Solution to these issues:
Solution to these issues under Anti-Defection law is:
Prescribe a time limit which is reasonable.
Define the entire procedure and set definite and reasonable time limits under this law within which a speaker has to take his decision regarding the matters under Anti-Defection Law
Transfer the disqualification matter from the Speakers Office to the Election Commission.
If you can’t prescribe this time limit then the power should be given to the president or the Governor who will act on the report of the Election Commission of India. So, under this Anti-Defection Law, don’t give this power to the Speaker because Speaker is biased in favour of rolling political party. Give this power to the Election Commission of India, and the report of the election commission of India should be final and binding on the President or the Governor.
Now, we will come forward to the famous and the curious cases which was taken place in Karnataka last year and this year in MP and latest what is happening in Manipur? Is our Democracy at stake?
Elections were held in Karnataka, no political party was in position to form a government on its own because the elections through a hung assembly, BJP emerged as a single largest party but two political parties congress and JDS, both decided to come together and form the government but the Governor of Karnataka invited BJP to form the government because the BJP emerged as the single largest party in the election. But very soon BJP was not in position to move majority on the floor of the legislative assembly. Mr. B S Yeddyurappa has to assign as the chief minister of Karnataka and H.D. Kumaraswamy of JDS became the chief minister of India. But it was not long lasting, because some members of the congress party and JDS decides to join the BJP and ultimately the Government of JDS and Congress fell down. BJP, again was in position to form the Government. These MLA’S who voluntarily resigns from the Congress and JDS party, the speaker of the Karnataka Legislative Assembly who was then the member of the Congress, he disqualified all the defectors and disqualified them for the remaining term of the House.
The matter went to the Supreme Court, it held that speaker is right in disqualifying them under Anti-Defection Law because they have voluntarily resigned from their political parties but don’t disqualify them for the remaining term of the house. They should be allowed to contest the elections and once the elections were announced, for those seats wakened; majority of them won the trust again and some of them were also made ministers under the BJP government in Karnataka.
Here is the resignation which is another loophole in anti-Defection Law. You can still resign, disqualify, you can contest the elections again, win the election again, join the political party again, you are making mockery of democracy. So real reforms are suggested by many is that resignation should not be allowed.
Madhya Pradesh Case:
A Congress government was in Madhya Pradesh. The Jyotiraditya Scindia along with 20 odd MLA’S, they decide to resign from the congress and then the strength of Legislative assembly reduced. When the strength reduced, and BJP was in position to form the government.
So, if the reform could be even if MLA’S and MP’S can resign, they should not be in position to contest the election again for the remainder of the term. This will make resignation a tough choice for the defectors and that’s is how we can preserve our democracy.
What was happened in Goa?
Indian national congress was emerged as a single largest party. BJP, the governor of goa invited BJP to form the Government. BJP was supported by 3 MLA’S of MGP and 1 MLA of MGP was Deputy Chief Minister as well. These 2 MLA’S decide to merge with BJP and became the member of BJP. Because the law allows that 2/3rd merger can merge with the other political party.
Resignation if allowed but if you resigned you should be disqualified for the remainder of the term that will strengthen anti-defection law.
2/3rd merger should be disqualified.
In 2017, elections were held in Manipur legislative assembly. 60 is the strength of the Manipur legislative assembly. Congress emerged as a single largest party with 28 MLA’S. BJP was next in line with 20 to 22 MLA’S but the Governor of Manipur invited BJP to form the government. And BJP was in position to form the government. 8 MLA’S of congress resigned and joined the BJP.
They should be disqualified under anti-defection law. But the speaker is not acting at all. Because these defectors are favouring the rolling political party, the speaker is member of the rolling political party. One Congress defector, T.H. Shyamkumar, was made the forest Minister as well. Matter went to the court, two judge Bench of the Supreme Court, in a rare move, the supreme court invoked its plenary powers under Article 142, and ordered forthwith removal of BJP lawmaker and Manipur forest cabinet minister, T.H. Shyamkumar, restraining him from entering the assembly till further orders.
A time has come when Parliament should 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…”, the top court had said. We have to re think about the role of the Speaker in Anti-defection Law and yes, we need serious reforms in Anti-defection law.
These are the reforms given below which helps to strengthen the Anti-defection law:
Prescribe a time limit within which a Speaker should take a decision under Anti-Defection law. If this power is not given to the Speaker, give this power to the Election Commission of India. Also, resignation even if allowed, if you are resigning from the House, you should be disqualified for the remainder of the term of that House. And also, 2/3rd merger should not be allowed, because you are making a mockery of an Electoral System.
About the author:
Vidushi singh, a young law student with law skills and a singer, who also have a keen interest in learning different languages and exploring; have a keen and deep interest in criminal field and many other legal aspects, has authorized this article. She is a 2nd year legal intern at Prodigy Legal and is currently doing great in other legal topics with our professionals.