‘Legislature to join the opposition party by the lure of seats in the cabinet is neither politically nor morally justified’
-J.B. KRIPLANI (MP)
Introduction
The term defection appears to have been derived, as the dictionary meaning suggests, from the Latin word ‘defectio‘[1], indicating an act of abandonment of a person or a cause to which such person is bound by reasons of allegiance or duty, or to which he has willfully attached himself. It, similarly, indicates revolt, dissent, and rebellion by a person or a party. Defection thus connotes the process of abandoning a cause or withdrawing from a party or program. It has thus an element, on the one hand, of giving up one and, on the other, an element of joining another.
At first, the Constitution of India didn’t have any notice about the ideological groups. In any case, step by step when the multi-party framework developed, there had have been surrenders in the Indian Parliamentary System where there have been move of individuals starting with one ideological group then onto the next which brought about separating of open trust in a majority rule type of Government.Defection is “renunciation by one individual from the gathering of his reliability towards his ideological group” or essentially it signifies “When a chosen agent joins another gathering without leaving his current gathering for benefits”.
This practice of elected members switching the political sides to get office is also known as Horse- Trading. It is also known as “Floor Crossing” in the U.K. and “Carpet Crossing” in Nigeria. The person who does such act of being elected from one party and enjoys benefits from the other party is known as “Defector” or “Fence Sitters” or “Turn Coats”.
There was uncontrolled Horse- Trading and corruption were prevailing in the political parties. One of the major incidents in the India’s Political History occurred after the 1967 elections; where about 142 MP’s and 1900 MLA’s [2] had switched their respective political parties.“Aaya Ram Gaya Ram” was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations..This engaged the attention of all the political parties in the Parliament, resulting in adopting a unanimous resolution for the constitution of a Committee to study and report on the issue of defection.
Based on the recommendations of the Committee, the 32nd Constitution Amendment Bill was introduced for disqualifying defected legislators from holding ministerial births. This Amendment Bill lapsed with the dissolution of LokSabha. This attempt was followed by the 48th Constitution Amendment Bill with the same tenor and terms of the lapsed Bill. At last, in 1985, when Rajiv Gandhi became Prime Minister with a majority, the 52nd Amendment Act, 1985 lead to alteration in Article 101, 102, 190 and 191 of the individuals; and furthermore embedded Tenth Schedule[3].
THE 52ND CONSTITUTIONAL AMENDMENT
The Fifty-second Constitutional Amendment Act of 1985 altered Articles 101, 102, 190 and 191 of the Indian Constitution and embedded the Tenth Schedule in it. The Statement of Objects and Reasons of the act:
“The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundation of our democracy and the principles which sustain it. ”
Reference to the disqualification in Tenth Schedule:
(1) If a member of a house belonging to a political party
Has voluntarily given up his membership of such political party,
Votes, or abstains from voting in such House, contrary to the directions of his political party. However, if the member has taken prior permission, or is condoned by the party within15 days from such voting or abstention, the member shall not be disqualified.
(2) If an independent candidate joins a political party after the election.
(3) If a nominated member of a house joins any political party after the expiry of six months from the date when he becomes a member of the legislature.
Exemptions From Disqualification
A member of a House shall not be disqualified where his original political party merges with another political party, and he and any other member of his political party
Have become members of the other political party, or of a new political party formed by such merge.
Have not accepted the merger and opted to function as a separate group.
The first Act of 1985 additionally gave an exception from preclusion on account of parts in the ideological groups. An absconding by at least 33% or one third individuals from such an ideological group was considered as a split which was not significant.
Defection Law in different Countries
A survey of Parliamentary practices and conventions prevailing in other democracies in the world would point out that anti-defection laws are in its infancy stage. Among the Commonwealth countries, the anti – defection law is prevalent in 23 nations. The anti-defection law in Bangladesh, Kenya, South Africa and Singapore disqualifies a legislator on his ceasing to be a member of the party or when he is expelled.
The perceptible presence of anti-defection laws in countries where democracy is in a growing stage indicate that the legislators in those countries are less informed on the principles of democracy, but are more rapacious on gaining more political and monetary ascendancy.
But the political ambience in developed democracies poses a picture of legislators with democratic values and freedom of speech equally combined in themselves. The freedom to dissent with the policy of the political party to which a legislator owes allegiance is ensured by the “collective conscience” of the electorate, to which alone the legislators are primarily responsible.
In the UK, Parliament, a part is allowed to traverse to the opposite side, without being dismayed by any exclusion law[4]. In the US, Canada, and Australia, there is no limitation on administrators exchanging side.
MERITS AND DEMERITS OF THE LAW
Like each other, law, against anti-defection laws also accompany their own benefits and negative marks. Looking at the positive side, the law targets, giving dependability to the Government by rebuffing individuals in the event of any gathering shifts on their parts. Likewise, anti-defection laws attempt to achieve a feeling of reliability of the individuals towards their own gathering. This it attempts to accomplish by guaranteeing that the individuals chose for the sake of the gathering and its help just as the gathering pronouncement stay faithful to the ideological group of which he is a part and its approaches.
Going to the drawbacks, anti-defection laws will in general limit the ability to speak freely and articulation of the individuals by keeping them from communicating any disagreeing conclusion in connection to party strategies. Nonetheless, it has been held in different decisions that the opportunity of discourse gave under Article 105 and 194 isn’t outright. It is dependent upon the arrangements of the Constitution, the Tenth Schedule being one of them. Another bad mark of the law is that it diminishes the responsibility of the legislature to the Parliament and to the individuals by forestalling the individuals from the ideological groups to change their gatherings.
Loopholes In Anti-Defection Law
Speaker Autonomy
As is obvious from Rule 6 of the Tenth Schedule, the Chairman or the Speaker of the House is given wide and supreme force in choosing the cases relating to preclusion of individuals on the ground of deserting. In any case, it must be noticed that the Speaker, despite everything remains the part of the gathering which selected him/her for the post of Speaker. In such a situation, it is hard to expect that the Speaker will act fair-mindedly in cases relating to his/her ideological group.
Judgment delivered by Justices LM Sharma and JS Verma[5], who in their different decisions, announced that the anti-defection law is illegal.Judgment raises worries over the intensity of the Speaker to choose the subject of preclusion; The Speaker, who for his continuation in office relies generally upon the is not expected in the ordinary course to maintain impartiality in the decision making process. The invocation of the anti-defection law by the Speakers of various Legislatures during the last two decades vouch safes the worries communicated in the minority judgment on the topic of lack of bias of the Speaker. The Dinesh Goswami Committee on Electoral Reforms, appointed by the V.P. Singh Government in 1990[6], and the Election Commission recommended that the power to decide on the issue of disqualification under the Tenth Schedule should be given to the President or the Governor of the State, who shall act on the advice of the Election Commission.
Scope Of Judicial Review
Rule 7 bars the purview of the courts in regard of any issue associated with exclusion of an individual from a House, which means that it is outside the jurisdiction of all courts, including the Supreme Court under Article 136 and High Courts under Article 226 and 227 of the Constitution to review the decisions made by the Speaker in this regard. . In Keshavananda Bharati and Others v. State of Kerala and Another[7], 16 judicial review was held to be a basic feature of the Constitution and Constitution can’t be revised in order to disregard its fundamental structure. The rule notwithstanding the purview of the Courts has been tested on different occasions and the Court, in Kihoto Hollohon v. Zachilhu and Others[8], held that the law is substantial in all regards except on the issue relating to legal survey, which was held to be unlawful. Any law influencing Articles 136, 226 and 227 of the Constitution is needed to be sanctioned by the States under Article 368 (2) of the Constitution. As the necessary number of State congregations had not approved the arrangement, the Supreme Court announced the standard to be illegal.
No Individual Stand On Part Of Members
On a cautious investigation of different arrangements of the law, and especially Rule 2, it very well may be seen that the anti-defection law places the gathering individuals into a section of compliance to the gathering whip and strategies, checking the official’s opportunity to restrict an inappropriate demonstrations of the gathering, terrible approaches, pioneers and bills. The ideological group in this sense goes about as a tyrant for its individuals who are definitely not permitted to contradict. This, as it were, abuses the rule of agent popular government wherein the individuals are compelled to comply with the central leadership. In a very much settled delegate equitable
condition, the desires of the individuals of the electorate are dealt with as opposed to taking a shot at the guidelines and wishes of the gathering chiefs and according to its strategies. With the expanded force being given to party whip, the individuals are not permitted to decide on any issue freely regardless of whether they are a piece of gathering pronouncement or not. The law will in general haze the fine differentiation between disobedience on the part of individuals and the defection of the individuals prompting their preclusion. With this absence of distinction with respect to party individuals, the anti-defection laws have neglected to accomplish the ideal outcome.
‘Voluntarily Giving Up’
Rule 2(1)(a) of the Tenth Schedule mentions that the member of the House is disqualified from the party if he voluntarily gives up his membership of the political party but the Schedule does not clarify what “voluntarily giving up” means.
Rajendra Singh Rana v. Master Prasad Maurya and Others [9]is one more case which extended the significance to the words ‘voluntarily giving up’ It was held in the case that a letter by an elected party member to the Governor requesting him to call upon the leader of the opposite party to form a Government would by itself amount to an act of voluntarily giving up membership of the party of which he is an elected member.
This inquiry had emerged under the watchful eye of the Supreme Court in Ravi Naik v. Association of India (AIR 1994 SC 1558). and the Court while deciphering the expression held that it has a more extensive meaning and can be derived from the direct of the individuals. The words ‘voluntarily giving up’ were not held inseparable from ‘resignation’. It was held that an individual may deliberately surrender his enrolment of an ideological group even without offering his abdication from the participation of that party.
This came up for thought in Shri Avtar Singh Bhadana v. Shri Kuldeep Singh[10], Indian National Congress. On the off chance that the part reprimands his gathering openly, he will be esteemed to have surrendered his enrolment to the ideological group deliberately.
Additionally, in Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque, BSP (January 27, 2008)[11], the court held that a discourse by a part in an open gathering that he has a place with another ideological group by heart, would add up to deliberately surrendering the participation of the previous party.
Problem With Merger Provision
While Rule 4 of the Tenth Schedule seems to provide some exception from disqualification of members in the cases relating to mergers, there seems to be some loophole in the law. The provision tends to safeguard the members of a political party where the original political party merges with another party subject to the condition that at least two-third of the members of the legislature party concerned have agreed to such merger. The flaw seems to be that the exception is based on the number of members rather than the reason behind the defection. The common reasons for the defection of individual members seems to be availability of lucrative office or ministerial posts with the other party. It can very well be expected that the very same reason might be available with those two-third members who have agreed to the merger. If the defection by an individual member is not acceptable, it is very much difficult to assert that the same would be valid in case of mergers only because a large number of people are involved. This tends to undermine the democracy of the nation and thus the provision seems to be flawed. The provision could have been more useful if it had taken into consideration the real reason for merger rather than the number of members involved.
Voting and Freedom of Speech in Parliament
Parliamentarians are vested with various benefits to guarantee their powerful working. Article 105 of the Constitution explains the idea of the benefit in the accompanying words.
“Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof […][12]”
Tool of communicating emotions, feelings, thoughts or assessments of an individual. The option to decide in favour of the up-and-comer of one’s decision is only opportunity of casting a ballot, and it is the quintessence of vote based nation. This last stage in the activity of casting a ballot denotes the achievement of the right to speak freely of discourse of the voter.41 Extending this finding to casting a ballot in Parliament, casting a ballot turns into a fundamental component of the opportunity under Art. 105(1). Casting a ballot by individuals must not subsequently, be limited by Paragraph 2 (1) (b).
Conclusion
The presentation of the Tenth Schedule in the Indian Constitution was pointed toward controlling political surrenders. Despite the fact that the law has prevailed in a sensible manner, however because of a portion of its provisos, it has not had the option to accomplish as well as can be expected. Degenerate legislators have, through their unscrupulousness, had the option to discover the deformities in the law to suit their requirements in the most ideal manner. The accompanying changes in the law may assist it with creating to the most ideal degree:
The ability to the gathering whip, ought to be diminished so that the main those individuals who vote against the gathering declaration are dependent upon exclusion and not the individuals who vote against the party in a not a really significant issue or an issue which isn’t central to the gathering declaration. This will in a manner help the individuals to have some individual perspective on different issues. This equivalent measure was additionally laid down by the individual from parliament shri manishtiwari in February 2010[13].
The law should unequivocally set out what it implies by the words ‘voluntarily giving up membership’ so as to stay away from any disarray.
The arrangement identifying with mergers whereby it absolves individuals from exclusion on the off chance that they imperfection in enormous numbers, for example, two-third, must be changed to make the explanation behind absconding as the reason for exception from preclusion instead of simple numbers.
The law must be looked into to end any contentions between the law making body and the legal executive based on Rules 6 (Power to the Speaker) and 7 (Judicial Review) of the Schedule.
References:
1. ANTI-DEFECTION LAW IN INDIA AND THE COMMONWEALTH G.C. MALHOTRAhttps://eparlib.nic.in/bitstream/123456789/58674/1/Anti_Defection_Law.pdf
2. First Published: March 27, 2016 https://www.gktoday.in/gk/anti-defection-law-in-india-history-provisions-issues-and-analysis/
3. http://164.100.47.194/loksabha/writereaddata/Abstract/disqualification_on_ground_of_de.pdf
4. https://www.latestlaws.com/articles/analysis-of-anti-defection-laws-in-india-by-sakshi-rewaria/
5. AlokPrasanna Kumar, DEC 15 2019, 00:19 ISTUPDATED: DEC 15 2019, 01:18 IST
https://www.deccanherald.com/opinion/a-defect-called-the-anti-defection-law-785645.html
6. https://adrindia.org/sites/default/files/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf
7. http://constitutionnet.org/vl/item/basic-structure-indian-constitution
8. KihotoHollohanvsZachillhuAnd Others on 18 February, 19921992 SCR (1) 686, 1992 SCC Supl. (2) 651
https://indiankanoon.org/doc/1686885/
9. Rajendra Singh Rana And Orsvs Swami Prasad Maurya And Ors on 14 February, 2007 https://indiankanoon.org/doc/1620629/
10.https://www.legallyindia.com/views/entry/schedule-x-of-our-constitution-a-myth-or-a-reality
11.http://webcache.googleusercontent.com/search?q=cache:5DlYauP75sYJ:elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do%3Fmethod%3DA%26judgmentID%3D66139+&cd=3&hl=en&ct=clnk&gl=in
12.http://docs.manupatra.in/newsline/articles/Upload/54DB1904-34F0-4A20-A40F-0D968ABD5446.pdf
13.Anita JoshuaNEW DELHI:, FEBRUARY 10, 2010 https://www.thehindu.com/news/states/Congress-MP-moves-Bill-to-amend-anti-defection-law/article16813597.ece
About the author –
This article is written by Shreyansh Sharma, 2nd Year student of LL.B at Maharaja Sayajirao University, Vadodara
