This Article is submitted by –
Urshita Saxena, final year law student (semester X) pursuing BA.,LL.B at IMS Law College, Noida
The tenth schedule of the Constitution is very much in news most often, more when elections are round the corner, or when toppling the government is anticipated by showing loss of majority. MLAs or MPs, as the case may be, can be disqualified on the grounds of defection by invoking Tenth Schedule of the Constitution. This article discusses about the ambit of disqualification, key features in the form of FAQs related to anti-defection law, role of Speaker in such situations pertaining to State Assemblies, constitutionality of the law, and the need for reforms in the light of comparative study of anti-defection law of other countries.
In layman’s terms, a member is said to have defected when there is change of political allegiance, from the party he has been elected to represent in the Legislative Assembly, to another party. Known as anti-defection law in common parlance, it was brought about by the 91st amendment,1985 to stop the practice of instability of government by disqualifying those who shift allegiance from winning party to another party.
Ambit of disqualification
Under paragraph 2 of the schedule, an MLA can be disqualified in either of the two cases:
a) when he voluntarily gives up membership of his political party.
b) when he votes against the directive issued by his/her respective political party.
Voluntarily gives up
Does voluntarily gives up mean the same as resignation? No. In S. Naik v. Union of India[i], it was held voluntarily giving up party membership isn’t synonymous to resignation. It is now settled law that in order to attract the disqualification on the ground of voluntary giving up membership in the political party, the elected member need not resign from the party. The legislature has left the disqualification to be decided on the defined conduct of the member and that conduct may be express or implied. It can be in the form of, inter alia, publicly criticizing party on public forms, participating in rallies and marches of another party. The Presiding Officer of the House decides the question of voluntarily giving up on a petition moved by a member of the House.
Votes against Party’s directive
Party can issue a whip and the legislators are expected to adhere to the party’s policy. In other words, if one refers to recent political government tussle in the state of Rajasthan, the Bahujan Samaj Party issued a whip in its Press Note dated 26.07.2020[ii]. Now what does the whip seek. The party wants its 6 MLAs to ensure that those MLAs do as the party directive seeks, or else face disqualification. This is done in order to ensure loyalty of the legislators to the party from which they have been elected. However, mere dis-obeyance isn’t enough. The ultimate power to decide if the members have defected vests in the Presiding Officer of the House. In the case so discussed, the Presiding Officer is the Speaker.
Role of Speaker
Paragraph 6 empowers the Speaker to decide upon the question of disqualification. The speaker cannot initiate a suo-motu petition, it is the final arbiter only in case of a petition moved by a member. The Court was virtually kept out of adjudicating defection issue. However, post 1992[iii], Supreme Court can exercise power of judicial review which finds its place in basic structure doctrine. The law doesn’t provide for time limit to decide upon the question of disqualification, which is a big lacuna. The Speaker can sit in for months over such question as law doesn’t provide a time period. However, recently the Court held a three-month limit to be justified in deciding disqualification petitions[iv]. The Speaker acts as a tribunal in such cases, observed the Apex Court. In one instance, the Andhra Pradesh Governor in 2013 sat on the defection petitions on opposition MLAs which kept lingering on till the end of the very term on the Assembly in 2019. In a conference, Andhra Pradesh Legislative Assembly Speaker Tammineni Sitaram rightly remarked, “In some States, the presiding officer (Speaker) did not take up petitions filed under the anti-defection law for five years, leading to the natural death of petitions with the dissolution of the House”. Failure to decide timely has even led to these ‘disqualified’ members becoming ministers. This certainly casts aspersions on the very purpose of disqualification law. Pending disqualified petitions, what if these allegedly disqualified members become ministers, as it usually happens. On the other hand, pending disqualification for a long time, they are in continuous threat of consequences which affects their ability to perform efficiently with freedom if they’re eventually given clean chit. This in turn affects the finality of the outcome, as the Court can only intervene after the Presiding Officer of the House has taken a decision and not before that.
Frequently Asked Questions
Is there any exemption in case one-third members choose to defect?
Prior 2003, exemption was available to defector MLAs/MPs if at least one-third of them choose to defect. Later, need was felt to make laws stringer and it was omitted by the Constitution 91st Amendment Act,2003.[v]
Are mergers of political parties exempt from disqualification proceedings?
One exemption still exists[vi]. Disqualification does not apply in case of mergers of political party. The only condition being that at least 2/3rd of members of the legislative party should consent to such merger.
What is the rule with respect to the presiding officer of the House, viz. the Speaker and the Chairman?
The Speaker of the State Legislature or the Chairman or Deputy Chairman of Parliament are exempt from disqualification rules. The Presiding Officer is allowed to severe connections with his political party without facing disqualification. Also, the power to frame rules with respect to disqualification vests in Speaker or the Chairman, for their respective house.[vii]
Does the law hold same in case of independent members (who don’t contest from a political party)?
The law equally applies to an independent member (who runs election independently without affiliation to any political party).
What is the anti-defection law in case of nominated members?
The rules related to nominated members are such that a Member of Parliament (in the case of Rajya Sabha) or a Member of Legislative Assembly (in the case of Legislative Council) are also not immune to disqualification. However, they can save themselves only if they join a political party within six months of getting elected.[viii]
Can the defector MLA/MP be condoned?
Another key feature is that whoever disobeys the political party’s whip, can be condoned by the party within 15 days of such dis-obeyance or voluntarily giving up of his part.[ix]
Constitutionality of the Law
The role of the Speaker has already been discussed, in the sense that he is the ultimate decision maker. In the case of Kihoto Hollohan[x] (supra), the Court upheld the power of the Speaker and only struck down the provision which barred the jurisdiction of the Court. The majority view authored by Justices M N Venkatachaliah and K Jayachandra Reddy observed the Speaker’s role as pivotal and the vestiture of power under the Tenth Schedule shouldn’t be construed as exceptionable. The minority view, by dissenting Justices Lalit Mohan Sharma and Justice J S Verma, however, took the view that since the Speaker is dependent on the continuous support of the majority in the House, such a requirement fails to ensure an independent adjudicatory authority.
However, recent trends show the Court’s inclination towards striking down power vested in the Speaker[xi]. The court has in fact acceded to the minority view of Kihoto Hollohon(supra). The Court undoubtedly upheld the provisions of the Tenth Schedule, yet suggested that real teeth to the provisions can be ensured by substituting the Speaker with a permanent Tribunal headed by an independent mechanism or by a retired Judge of Supreme Court or Chief Justice of High Court.
Comparative study with anti-defection laws of other countries
In the United Kingdom, Canada as well as Australia, there are no laws governing defection. There are only internal party regulations. A member’s political party affiliation with another party doesn’t disqualify him. Only seating arrangement is decided by the new party after duly notifying the Speaker.
Regarding the rebate granted to the Presiding Officer from disqualification, in countries such as New Zealand and Pakistan, the Speaker is immune from disqualification. Whereas in Bangladesh, Nigeria, Singapore and Sri Lanka, no such provision for exemption is available to the Speaker or Deputy Speaker.
In India, only a member of the House can file a disqualification petition against another member. Whereas in countries such as Bangladesh, any ‘person’ or any ‘member’ can do so. Also, in our country, the Speaker has no power to take suo-motu action, whereas in Lesotho, such question can be taken up suo-motu by the Presiding Officer.
Regarding the Presiding Officer as the deciding authority, we know the position in India in the sense that Presiding Officer is the deciding authority, but such order can be challenged in a Court of law and such order of the Court has to be obeyed. Thus, the decision of a Speaker usually precedes the order of the Court. In Bangladesh, the decision-making power vests in the Election Commission and it is non- appealable. In our country, the decision is appealable in the Supreme Court. In Pakistan, the Presiding Officer within two days of his decision refers it to the Chief Election Commissioner and it is only on the latter’s confirmation that the member ceases to be a member of the House. The Constitution of Singapore gives its Parliament the power to decide if a member is disqualified and such a decision is final, beyond Court’s power of review.
There have been instances that in order to evade disqualification by implied conduct (under first provision of paragraph 2) MLAs have resorted to resigning from the Legislature itself thus saving themselves from disqualification proceedings before the disqualification petition is put up. Also, the very purpose of voting against the party’s whip falls short of its objective. This is because disqualification proceedings commence after the said member has acted against such whip. So, in effect, the damage comes first and remedy later, which may have ultimately even caused to have toppled the government. Also, an MLA or MP so resigned can be approached or he may of his own motion join another party and get re-elected again. The true sense of a person getting elected is his mandate imposed in him by the public through the means of votes. If we weigh this loophole as discussed, two sharp objectives are in contra-distinction, viz. loyalty towards party and loyalty towards mandate. Thus, if resignation from the Assembly (and not political party) precedes the cause of action of the disqualification proceedings, the Speaker only needs to make sure that the resignation was not a coerced or a forged one. Consequently, if a member opts out of a party by exiting from the party indirectly (by resigning his membership in the Legislature), he can validly get re-elected from another party as a member. The disqualification rule thus has an escape route.
The loyalty necessitated by this provision is more of the party, and lesser of the mandate which has made such member their representative. It is hardly conceivable as to how a bona-fide dissent in the party can be considered to be ‘anti-democratic’. It is suggested that the disqualification proceedings should only be restricted to no-confidence motions and be considered esjudem generis in which the stability of people’s mandate is in need instead of silencing bona-fide dissents. Majority of the developed nations do not find a correspondent provision.
Another issue is the vestiture of power with the Speaker. Although it is not beyond judicial review, but the very nature of powers conferred is not neutral in entirety as it is dependent upon the Presiding Officer who draws continuous support from the majority party. Though the office of the Presiding Officer is such that it upholds dignity, however the fact that the Speaker enjoys majority support cannot be ignored. It would be more in the public interest if the deciding authority is made by a time-bound independent institution as it would ensure neutrality of the decision and shall also reduce the burden of decisions being appealed in the Supreme Court.
“The views of the authors are personal“
[i] Ravi S Naik v. Union of India, AIR 1994 SCR (1) 754
[ii] BSP issues whip to 6 MLAs who joined Congress, https://indianexpress.com/article/india/bsp-whip-to-6-party-mlas-who-joined-congress-vote-against-ashok-gehlot-govt-6524869/ (last visited Aug. 1,2020, 02:29 PM(IST))
[iii] Kihoto Hollohan v. Zachillhu, AIR 1992 SCR (1) 686
[iv] Kesiham Meghchandra Singh v. The Hon’ble Speaker Manipur Legislative Assembly & Ors., AIR 2020 Civil Appeal No. 547 of 2020
[v] Paragraph 3, omitted by S.5 of (Constitution Ninety -first Amendment) Act,2003
[vi] Paragraph 4, Tenth Schedule to the Constitution
[vii] Paragraph 5 and Paragraph 8, Tenth Schedule to the Constitution
[viii] Clause b, Explanation to Paragraph 2, Tenth Schedule to the Constitution
[ix] Clause (1)(b), Paragraph 2, Tenth Schedule to the Constitution
[x] Kihoto Hollohan v. Zachillhu, AIR 1992 SCR (1) 686
[xi] p.30, Keisham Meghachandra Singh v. The Hon’ble Speaker Manipur Legislative Assembly & Ors. AIR 2020 Civil Appeal No. 547 of 2020