ANTI DEFECTION LAW

INTRODUCTION

In 1967, the phrase ‘Aaya Ram, Gaya Ram’ grabbed the headlines of newspapers when Haryana MLA Gaya Lal switched multiple parties in a single day. India was a victim of such frequent horse-trading; as a result, anti-defection law was inserted in the Constitution of India by way of the 52nd Amendment in 1985. The Tenth Schedule was introduced to curb such political defections, aiming to bring stability in the structure of political parties, upholding the principles of representative democracy. The import of this constitutional measure meant that once a member was elected under the symbol of a political party to the Parliament, the member could not later opt to leave that party or switch to another party.<1> It was needed because defection was used as a tool to engineer the overthrowing and creation of governments, thus ensuring that only citizens have a say in government making. The provision lays down the process for disqualification of members of the Parliament and State assemblies, by the Presiding officer, on a petition by any member of the House. A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.

HISTORICAL EVOLUTION

In the 1951-52 elections, Indian National Congress had a whooping victory and became the major ruling party forming the government in the center and all the sixteen states.<2> But during 1967-71, the political dynamics changed and came the era of a coalition government, and began the dawn of the party split and floor crossing, leading to the cyclical game of defection triggered in India. The quest for political power turned Indian political affairs into a trade for the benefit of individuals. Around 142 MPs and 1900 MLAs changed their allegiance from one political party to another <3>, bringing into limelight the much needed anti defection law. Under the chairmanship of Mr YB Chavan, a committee was formed for the purpose. The bill was introduced several times in the House but was either rejected, or the bill lapsed every time. It was in the year 1985 under the Rajiv Gandhi government anti defection law was introduced in the Constitution to “curb the evils of political defection.”

LEGAL PROVISION

Article 102(2) of the Constitution deals with the disqualification of Member of Parliament while Article 191(2) talks about disqualification of Member of Legislative Assembly under defection as laid in the Tenth Schedule.

The provision under Paragraph 2(1)(a) of the Tenth Schedule envisages that a member of the house is disqualified if he voluntarily gives up his membership of the party from which he was elected to the house.<4> It was emphasized by the court in Kihoto Hollohan v. Zachillhu and Ors<5> that by political propriety and morality, a candidate changing his affiliations must give up his membership and go back for the electorate. The words “voluntarily giving up membership” are to be given wider connotations, and the same can be inferred even from the conduct of the member<6>, thus increasing the ambit of disqualification on defection.

In addition to this, Paragraph 2(1)(b) of the Tenth Schedule states that in situations where the direction has been issued with relation to voting by the political party, the member is mandated to comply with the direction and anything contrary to this directive would also be perceived as an act amounting to defection. This has been a matter of controversy as it is stifling the voice of legislators, contravening freedom of speech and expression guaranteed by the Constitution.

LOOPHOLES IN THE LAW

1. Rule 7 bars the jurisdiction of the courts in respect of any matter connected with disqualification of a member of 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 Bharti and Others v. State of Kerala and another,<7>judicial review was held to be a basic structure. However, it has been held in Ravi S. Naik v. Union of India,<8>that the rules relating to anti defection laws are merely procedural in nature and any violation of these, being a procedural irregularity, was immune from judicial scrutiny. 

2. The rule barring the Jurisdiction of courts has been challenged multiple times, and the court inKihoto Hollohon v. Zachilhu and Others<9>held that the law is valid in all respect on the matter pertaining to judicial review, law affecting Articles 136,226,227 of the Constitution is required to be ratified by the states under Article 368(2) of the Constitution. The Supreme Court declared the rule to be unconstitutional. The court also held that the speaker, while deciding cases pertaining to the defection of party members, acts as a tribunal and nothing more than that, and his/her decisions are subject to the review power of the High Court and the Supreme Court. Mentioning a rule of caution, the Supreme Court warned against the exercise of the power of judicial review prior to making any decision by the Speaker.<10> On the matter of review of the decision of the Speaker by the Speaker himself, it was held in Dr. Kashinath G. jhalmi v. Speaker, Goa Legislature Assembly<11>that the provision doesn’t provide any power on the part of the Speaker and thus, the Speaker cannot review his own decision. The Supreme Court held that ignorance of a petition for disqualification is not a mere irregularity on the part of the Speaker but a violation of a Constitutional duty.

CONCLUDING REMARKS 

The introduction of the Tenth Schedule in the Indian Constitution was aimed at curbing political defections. Though the law succeeded in a reasonable way, but due to its loopholes it has not been able to achieve the best it can. Corrupt politicians have, through their dishonesty, been able to find the defects in the law to suit their needs. The following changes in the law might help to rectify it in a best possible extend:

1. The power to the party whip should be reduced so that only those members who vote against the party manifesto are subject to disqualification and not those who vote against the party in a not-so-important matter or a matter which does not core to the party manifesto. This will, in a way, help the members have some individual viewpoint on various issues.

2. The law must explicitly set out what it means by the words “voluntarily given up membership” in order to avoid any confusion.

3. The provision relating to mergers whereby it exempts members from disqualification if they defect in large numbers, i.e. two-third must be amended to make the reason for defection as the basis for an exception from disqualification rather than mere numbers.

4. The law must be reviewed so as to end any conflicts between the legislature and the judiciary on the basis of Rules 6 and Rules 7 of the Schedule.

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REFERENCES

1. Kartik Khanna & Dhvani Shah, Anti-Defection Law: A Death Knell For Parliamentary Dissent? 5 NUJS L.Rev. 103 (2012).

2. Rohit Jain, Analysing The Anti Defection Law In India: From Drama To Dilemma 1 IJALR (2020).

3. Aditya Sharma, Four TDP Lawmakers Switch to BJP; How This Does Not Violate Provisions of Anti-Defection Law (June 20, 2019, 19:41).

4. Supra, note 1.

5. Kihoto Hollohan vs Zachillhu and Ors., (1992) 1 SCR 686.

6.  Ravi S. Nayak v Union of India, (1994) 1 SCR 754.

7. Keshavananda Bharati and Others v. State of Kerala and Another, (1973) 4 SCC 225.

8. R. Kothandaraman, Ideas for an Alternative Anti-Defection Law (2006).

9. Kihoto Hollohan vs Zachillhu and Ors., (1992) 1 SCR 686.

10. M. P. Jain, Indian Law Constitutional Book 47 (7th ed. 2016).

11. Dr. Kashinath G. Jhalmi v. Speaker, Goa Legislative Assembly, (1993) 2 SCC 703.