Anti defection Law in India

9 Jul 2022  Read 1995 Views

Do you know how the slogan "Aaya Ram, Gaya Ram" was coined? The slogan was made in 1967, when Gaya Lal, an MLA, first joined the Indian National Congress and changed his political affiliation thrice in a single day. Even after this incident, Gaya Lal was infamously known for frequent floor-crossing and thus became the inspiration for the term Aaya Ram Gaya Ram. The said expression was then used commonly in Indian politics to refer to political horse-trading or, in simple language, elected members shifting parties. 

Such practice of defection wasn't practised by one or two elected members; the need to address this situation paved the way for the Anti Defection Law in India.

What is Anti Defection Law?

Defection is "desertion by one member of the party of his loyalty towards his political party", or basically, it means "When an elected representative joins another party without resigning his present party for benefits".

Anti-defection law prevents elected members from hopping from one party to others and provides a penalty for the same.

Objective of Anti Defection Law?

As per the Statement of Objects and Reasons of the Bill, which introduced the anti defection law, the object of this law was to curb the evil of political defections motivated by the lure of office or other similar considerations that endanger the foundations of our democracy.

Schedule 10: Provisions of Anti-Defection Law

The tenth Schedule of the Constitution has laid down the provisions which deal with situations of defection in Parliament or state legislatures by:

  •  members of a political party,

  •  independent members, and 

  •  nominated members.

Who can be disqualified?

Paragraph 2(1) of the Tenth Schedule provides that 

  1. A member of Parliament or State Legislature belonging to any political party shall be disqualified for continuing as such member if he:

  •  Voluntarily gives up membership of his political party, or

  •  He votes contrary to a direction issued by his political party or does not vote in the House when such a direction is issued. However, a member shall not be.

  • disqualified if he has taken prior permission of his party or is condoned by the party within 15 days from such voting or abstention.  

  1. If an independent candidate joins a party after the election. 

  2. If a nominated member joins a party six months after he becomes a member of the legislature.  

Exception 

Paragraph four and five of Schedule 10  provides that rule of disqualification would not be applied to

  1. Merger - A person shall not be disqualified if his original political party merges with another (applicable only if more than two-thirds of the members of the party have agreed to the merger), and: 

  2. He and other members of the old political party become members of the new political party, or 

  3. He and other members do not accept the merger and opt to function as a separate group. 

Landmark Cases on Anti-Defection Law

  1. Rajendra Singh Rana v. Swami Prasad Maurya and Others  is a case that expanded the meaning of the words voluntarily giving up the membership under anti- defection.' It was held for the situation that a letter by a chosen party part to the Governor mentioning him to call upon the pioneer of the contrary party to frame a Legislature would, without anyone else, sums to a demonstration of deliberately surrendering enrollment of the party of which he is a chosen part.
  2. In Keshavananda Bharati and Others v. the State of Kerala and Another, Judicial review was a basic feature of the Constitution. The Constitution cannot be amended to violate its basic structure in which the basic features of the constitutional were established. The parliament cannot alter the basic structure doctrine; thus, they must be kept unimpaired. Out of these features, the feature of Judicial Review was being altered under the 10th schedule, and much-needed clarity was needed. A liberal construction had to be adopted by the courts so that it would give review jurisdiction to the Supreme Court and High Courts in cases of disputes about the review of the speaker's decision. The power of review was imperative to lift the embargo imposed by the Tenth schedule, which removed the review jurisdiction of the Courts. The power of review is expedient, and without it, the preciseness of the disqualification made by the speaker's decision would have never been called into question on account of the inability to do so by the courts. 
  3. Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque, BSP (2008), the court held that if the party member publicly opposes his original party and supports the other party, then this act deems to be a resignation from the party.
  4. In Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors.:
    The question was raised regarding the jurisdiction of the Speaker or Presiding Officers. The court held that there is nothing in paragraphs 1, 2, and 6 of the Tenth Schedule that fetters the exercise of jurisdiction by the Speaker to decide this question.
  5. Kihoto Hollohon v Zachillu (“Kihoto Hollohon”) case of 1992. It was held by the Supreme Court that Para 7th of the Tenth schedule made a total exclusion of remedies available under Articles 136, 226, and 227 of the Constitution. But this was rectified by attracting Article 368(2). It was held that the decision of the Chairman and the Speaker regarding the disqualification of the members was to be considered valid but subject to judicial reviews of the court. Thus, this case implicitly provided that the decisions of the Speaker of the house were legal and binding but were questionable before the courts.
  6.  Ravi S. Naik v. UOI (1994): In this case, the Supreme Court widely explained “resignation by voluntarily giving the membership.” The court observed that a person might voluntarily give up his membership of a political party even if he has not tendered resignation from the membership of that party. Even in the absence of a formal resignation from membership, inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs”.

91st Amendment

The 91st Amendment was brought in 2003 and omitted paragraph 3 of the Tenth Schedule, which dealt with disqualification on the ground of defection not to apply in case of split and introduced Articles 75(1B), 164(1B) and 361B in the Constitution. These provisions bar any person who is disqualified under the Tenth Schedule from being appointed as a Minister or from holding any remunerative political post from the date of disqualification till the date on which the term of his office would expire or if he is re-elected to the legislature, whichever is earlier. 

Lacuna in Current law

  • Role of Speaker as sole arbitrator - Speaker solely has the power to adjudicate matters related to disqualification; furthermore, his decision will be final. He is in a position where he can act arbitrarily and make favourable decisions. 

  • Ambiguity in the phrase 'voluntarily given up.' 

  •  Paragraph 4- Paragraph 4 is related to the merger, whereby if 2/3rd members of party defect, members will not be disqualified. In recent times, said provision has been rampantly (mis)used as an escape clause.

  • Law does not provide a time frame for the Speaker to decide the disqualification case. 

Other relevant Case laws

  • On Judicial Review-  Kihoto Hollohan vs Zachilhu and Others, SC allowed appeals against the Presiding Officer's decision in the High Court and Supreme Court, thereby taking down the condition in the 10th Schedule that the decision of the Presiding Officer is not subject to judicial review.

  • On-time limit - In Keisham Meghachandra Singh v. Speaker, Manipur legislative assembly, SC held that the Speaker should decide on a disqualification petition within a period of three months from the date on which the petition is filed.

  • On the ambit of 'voluntarily giving up membership'-  In Ravi S.Naik vs Union of India, the Apex Court explained that the term "voluntarily giving up membership" had a wider connotation than the term 'resignation'. The inference could be drawn from the conduct of the individual that he has voluntarily given up his membership of the political party to which he belongs.

In Rajendra Singh Rana vs. Swami Prasad Maurya and Others, the Supreme Court held that the act of giving a letter requesting the governor to call on the leader of the other side to form a government would amount to an act of voluntarily giving up membership of the previous party and thus amount to defection.

  • Non-adherence to the principle of Natural Justice - In D. Sudhakar v. DN Jeevaraju and Ors, the speaker violated the rules of natural justice, and thus the SC set aside the speaker's decision.

  • SC in Raja Ram Pal vs The Hon'ble Speaker, Lok Sabha, observed that Parliament should review disqualification petitions conferred on a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto. 

  • In the Kihoto Hollohan case, SC held the order of the Speaker under the Tenth Schedule could be subject to judicial review on four grounds: mala fide, perversity, violation of the constitutional mandate and order passed in violation of natural justice.

  • In Shrimant Balasaheb Patil v Speaker of Karnataka, SC held the Speaker's scope of inquiry with respect to acceptance or rejection of a resignation tendered by a member of the legislature is limited to examining whether such resignation was tendered voluntarily or genuinely.  

Recommendation of Law reports

The Dinesh Goswami Committee Report - deciding disqualification petition should not be left to the Speaker or Chairman of the House, but to the President or the Governor

A  similar recommendation was given by the Law Commission with the addition that the President and Governor should be entrusted to handle disqualification cases and seek the Election Commission's opinion.

Conclusion 

With the recent political turmoil in Maharashtra and the events in the past 10 years, we could see a common trend in the Indian Political scenario, be it in Karnataka, Madhya Pradesh, or Goa, that despite members of legislative assemblies acting against the anti-defection law, they escaped from the charges of defection, which makes me think that whether this law is serving the purpose, it sought to achieve?

About the Author: Priya Barlota | 6 Post(s)

Priya Barlota is a law graduate from Amity University. She is an avid reader, and has a keen interest in Constitutional Law, IPR and Criminal Law. Follows Geo- Politics religiously.

Liked What You Just Read? Share this Post:

Finology Blog / Constitutional Developments / Anti defection Law in India

Wanna Share your Views on this? Comment here: