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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

“CEMENTING THE NOTION OF SOCIAL JUSTICE BY ADOPTING CONSTITUTIONAL VALUES” by - Riya & Neelaksh1

ABSTRARCT

In order to curb the menace of political defections in India, the parliament by the 52nd Amendment Act, 1985, appended the Tenth Schedule to the Indian Constitution, prominently known as the Anti Defection Law. The intention of this law is to secure political stability and prevent the legislatures from defecting their unique political party. This Tenth Schedule mentions the grounds under which the presiding officer of the house can disqualify any member for abandoning his own parent political party. The law similarly provides for few exceptional cases of exclusion, as on the ground of party merger. ‘The Anti Defection Law is in itself is quite defective’, it had always been contentious legislation, as it had failed to deliver the purpose of its enactment. The defections are still rampant. The present paper tries to give a short examination of the ground and the exception given in the Tenth Schedule. It additionally focuses on the lacunas in the Tenth Schedule, discussed with practical illustrations of the recent episodes of defection in India. As the law becomes more entrenched, we can see how this thirty-five year law is used and misused by various political parties. The present paper tries to examine the provisions which make the Tenth Schedule, to some degree, abortive and unsatisfactory. It additionally looks at the position of the development required in the law and the way forward.

Key Words:- Constitution, Schedule, Defection, Disqualification

INTRODUCTION

In an unpretentious sense, the word “defection” signifies the transfer of loyalty or support. Likely, in political terms, it means a situation when any member of one Political party abandons his own unique political party and joins another Political party. Traditionally the concept of floor-crossing was equivalent to the term. The default of defection happens when lawmakers of a political party are tempted by the rivalry party with some colossal public posts or by splurging money on them. In the first place, it begins with dissent and ultimately results in disloyalty. It is apposite to note that defection and dissent are not correlative and imply contrasting meanings. A representative of a political party may withstand the directions of the party, it may be a remark of dissent, but it doesn’t amount to defection because he hasn’t changed his side. The Anti Defection Law has miserably failed to differentiate between dissent and defection due to which it has meted out a lot of criticism. These incidents of defections are something which is not distinctive only in India. It is predominant in all the democracies throughout the world which have embraced the party system.
The Anti Defection Law was initially not there in the Constitution of India. It was appended in the Indian Constitution in the year 1985, during the term of Rajeev Gandhi Government. By the 52nd Amendment Act, the Anti Defection Law was appended in the 10th Schedule of the Constitution. This Anti-Defection Law discuses the grounds on which Members of Parliament (MP) and the Members of State Legislature (MLA) can be disqualified on the ground of defection (withdrawal) from one Political party to another political party. Before the 52nd Amendment Act the articles dealing with the matter of disqualification of members of any political party under defection were 101, 102, 191, and 192. But after the 52nd Amendment Act, the Parliament added Article 102(2) and 191(2) in the constitution for alluding the consequences of defection. Article 102(2) of the Constitution deals with the disqualification of Member of Parliament under defection on the other hand Article 191(2) talks about disqualification of Member of Legislative Assembly under defection.

Anti Defection Law had always been a contentious legislation, it has miserably failed to deliver the actual purpose of its enactment. There are various gaps in the Law, due to which it had consistently been misused. Owing to these lacunas this law has always been a subject of scathing castigation by constitutional experts and other oracles in this field. ‘The Defection Law is undeniably a quiet defective’. The law had always been denounced mostly on the premise that it does not precisely determine the notion of representative democracy. It had unpromisingly failed to ensure the freedom of legislatures to convey their dissent to the policy resolutions of their unique political party, which is necessary for the survival of robust democracy. It is not Democratic to tie the party members to the whims and fancies of the party leader as it does not honor the intraparty democracy.

HISTORICAL EVOLUTION

After the adoption of the Indian Constitution, we held the first Indian General Election, in the year 1951-52, wherein 1949 candidates were competing for 489 seats in the Lok Sabha. At that time we had sixteen states in India. The Indian National Congress (INC) had a whooping victory and became the major ruling party forming government in the center and all the sixteen states. So, our complete nation was ruled by a single political party. But this state of affairs changed during the period of 1967-71 when out of those sixteen states congress came in power only in one state. And thus that period became the era of the coalition government. This period kicked off the dawn of party split and floor crossing, which led the cyclic game of defection triggered in India. The political manifestation of defection became pertinent in our nation during that epoch. There were around 142 MP’s and 1900 MLA’s who shifted their loyalty from one political party to some other political party between the periods of 1967-71. It was the phase that decreased the strength of congress through a mushroomed coalition government in 9 out of 17 states. The most astonishing and dramatic case of defection in that period was that of Mr. Gaya Lal, who served the Haryana State Legislative in the 1960s. In 1967 he contested the state legislative election as an independent candidate. Mr. Lal switched the party three times within one day only, shuttling between INC and the United Front. The lust for political power transmuted the Indian Political affairs into barter for exchanging individuals’ profit. This cyclic game of defection triggered the situation and led to the imposition of President’s Rule u/a 356 of the constitution. And thus, finally, the concept of defection came into limelight and the expression ‘Aaya Ram Gaya Ram’ was used for frequently defecting of political parties.
The Lok Sabha espoused a non-official resolution on 8th December, and consequently, a high-level committee was formed under the chairmanship of Mr. YB Chavanii. The committee presented various recommendations before the house. And finally, on 16th May 1973, the government introduced a Constitutional Amendment Bill with an object of prohibiting the defectors by making them ineligible from holding any office of profit for a certain stipulated period. Then this bill was presented before a joint committee of both the houses but the Lok Sabha was dissolved and thus the Bill lapsed at that time. The bill was further introduced in the House on 28th August 1978 but was opposed by the member of the ruling party and the opposition party as well.
The bill was once again introduced in the Lok Sabha on the 24th of January, 1985iii, and was at last passed by Lok Sabha and Rajya Sabha on 30th and 31st January, 1985 respectively. It got the Presidential consent on fifteenth February 1985. and came into force from first March 1985. It took around 17 long a long time for the Government of India to include Anti Defection Law in the constitution of India, finally in 1985 by the 52nd Amendment Act, the Rajeev Gandhi Government included Anti Defection Law in the Tenth Schedule of the Indian Constitution. This law was additionally revised in 2003 by the 91st Amendment Act, which is briefly discussed in the later section of this paper.
At this point, it is pertinent to note that our constitution, at its very inception, nowhere carried any reference to the concept of Political Party. The involvement of political parties is very much inherent in a democracy.

GROUNDS OF DEFECTION

The Tenth Schedule mentions four groundsiv under which a legislature can be disqualified by the presiding officer of the house. These grounds are based on the nature in which the candidates are appointed as a legislature i.e. whether the candidate is elected or nominated. Let’s discern all the four grounds with practical illustrations of recent episodes of defection in India.

  1. The principal ground under which a legislature can be disqualified by the speaker is related to the transfer of loyaltyv. If any member of one political party resigns from his own unique parent political party and joins some other party, at such time he may be disqualified under the anti detection law. One such corresponding case of defection was seen when Ram Chandra Prasad Singh, an elected member of Janta Dal (United), was disqualified as a legislature, from Rajya Sabha, as he gave up and resigned from his own unique political party and attended the rallies conducted by the opposition party in Bihar. The SC, in this case, held that the Petitioner Defected JD(U) under the paragraph of (2)(1)(a) of the Tenth Schedule.
  2. The Second ground of defection under the Tenth Schedule is related to dissent. As per this ground if any member of one political party abstains from voting as per the directions of his political party’s supreme then it will be a ground of detection. It means that no member of one political party can vote against the direction of his unique political party. The most recent example of this ground can partially be seen in the current episode of Rajasthan Political Crises, wherein Congress MLA Sachin Pilot, is not supporting his own novel political party, and that is the sole reason due to which INC is demanding the assembly session, wherein if Pilot dissents the bill proposed by Congress then he will be disqualified under anti detection law. Let’s look at another example: Mr. Vishwajit Singh, an MLA of Goa Legislative Assembly (currently the member of BJP), who contested and won the election under the logo of INC, abstained from voting in favor of INC in the floor test for the election of Goa’s C.M. which qualifies as a ground of defection. And, thus INC filed a petition for his disqualification in the Goa HC.vii But the HC dismissed the petition, and so the matter is now pending better the SC.
  3. The third ground of defection under the Anti Defection Law is related to the independent candidates. An independent candidate is one who contests the election, without the support of any political party, independently. He is the one who is not affiliated with any political party. According to this ground, if any legislature, who is elected as an independent candidate, joins any other political party, it will amount to defection, and thus such a candidate will be disqualified under the Tenth Schedule. So, as per this ground of defection, no independent candidate can join any political party. But now a question might arise in your mind that how does these independent candidates before a part of the ruling political party. So, let’s see how that happens with the help of an illustration. In the current NDA government in the center, there is a member ‘Sumlatha’, who is independently elected from Karnataka. So, why isn’t she being disqualified? The answer to it is that these independent candidates do not join the political parties but merely lends there support and forms an alliance. So, Mrs. Sumlatha did not join BJP exclusively, but merely lend her support to the BJP led NDA’s alliance.
  4. The fourth and the last ground of defection relates to the nominated candidates. A nominated candidate is one who is not elected from any constituency and is neither affiliated with any political party. Such a nominated candidate is free to join any political party within a period of six months starting from the date of his appointment. But after the expiry of those six months, the nominated candidate cannot join any political party. If he joins any political party after the expiry of those six months then he will be called a defector under the anti detection law. For example our Former Chief Justice of India Ranjan Gogoi, who was inducted as a Member of Rajya Sabha in the parliament on 19th March 2020, is free to join any political party till the expiry of six months. But if he joins any party after the expiry of six months i.e after 19th September 2020, he shall be disqualified under the anti detection law.

EXCEPTIONS TO THE LAW

The Tenth Schedule besides the above-stated grounds also provides for two exceptionsviii (before 2003). The first exception relates to the exclusive power given to the Speaker or the presiding officer of the house. As a general rule the speaker of the house, when appointed, need to resign from his parent political party, in order to ensure neutrality and fairness with all political partiesix. The logic behind it is that the speaker is treated as a tribunal under the law, and in order to secure equity it is important that the speaker acts neutrally. As per the grounds mentioned in the tenth schedule, if he joins any political party then he will be disqualified. But there is an exception to the speaker, according to the exception, the speaker, after the expiration of his tenure, is again free to join any political party. The second exception to the law is the case of mergersx. If a member goes out of his unique political party as a result of a merger, then he will not be defected under the defection law, provided that such a merger takes place with more than two-third members of the parent party. This exception illogically differentiates individual detection and group detection. However, it is pertinent to note here that this exception has been removed from the Tenth Schedule by the 91st Amendment Act, 2003.

REASONS FOR DEFECTION

There are a number of reasons which motivates the legislators for defecting their unique political parties. Few of those reasons are discussed below:

  1. The most primary reason behind defection is the lust for money and some good destination. Usually, the legislators defects their parent political party because they are offered some good consideration by the rivalry parties.
  2. The second reason behind defection can be the ideological differences between the member and his political party. They may dissent to his party supreme’s direction or ideas
  3. Occasionally, it may happen that the emoluments received in ministerial posts are less as compared to the benefits and emoluments received to an MP or MLA.
  4. Another reason which may lead a member to change his political party is the absence of dynamic leadership in within the party.
  5. Pressure groups can also force the members to leave their parent political parties.

DISCERNING THE LOOPHOLES IN THE TENTH SCHEDULE

  1. Dissent vs. Defection:- The Tenth Schedule has miserably failed to differentiate between dissent and defection due to which it had always been a subject of scathing criticism by the constitutional experts. It is important to discern the difference between the two because every dissent does not amount to defection. To ensure true Democratic character in the country, every legislature must be free to vote as per his will, and not according to the whim off the party leaders. But the law had badly failed to take this difference in account and consequently had failed to achieve its desired result.
  2. Individual Defection vs. Group Defection:- The Tenth Schedule prohibits a member from defecting his unique political party, but at the same time it exempts group defection (i.e more than 2/3rd members of a party). There is no rational behind such difference. According to the provisions of the law retail defection is prohibited but wholesale defection is allowed. This exemption seems to be completely unreasonable.
  3. Unlimited powers given to the Speaker of the house:- As per the general rule a speaker is supposed to resign from his parent political party, to ensure his political neutrality in the house. The logic behind this provision is that after his appointment he is not supposed to serve any political connection. But this provision seems to be unjustified and completely against the spirit and objective of the Tenth Schedule of the constitution. The schedule also bars the jurisdiction of courtsxi in regards to any issue associated to defection and thus gives unlimited powers to the speaker.

CAN A SPEAKER ACT PARTIALLY?

The speaker acts like a tribunal in the matter of Anti Defection Law. If a member has any complaint regarding disqualification of any member then he can file a complaint the speaker about it with the speaker. The speaker has the final authority regarding disqualification of any MP or MLA. But under the anti defection law there are certain lacunas due which the speaker can act partially in the matter of Disqualification. In the case of Shri Rajendra SSingh Rana vs. Swami Prakash Mayuraxii the court had impliedly said that the speaker can act partially as there are certain loopholes in the Anti Defection Law.The following section discuses two such real life practical examples which will prove that the speaker can act partially in the matter of Disqualification.
“Speaking about how the Speaker’s authority could be a Tribunal, the Court elaborated thus, “Where there is an affirmation by one party and denial by another-and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a Court.” In this instant case, the Court has taken recourse to many previous judgments and commentaries to explain this point.”xiii
In Arunachal Pradesh on 1st November 2011 INC government came into power and M Nabam Tuki became the CM of A.P. and the C.M’s cuisine Nabam Rebia was appointed as the Speaker of the A.P’s Legislative Assembly. But rivalries took place within the Congress party itself. Four members gave resignation from INC and 10 other members together talked against the Speaker outside the Speaker. All these 14 MLA’s gave a letter to the Governor of A.P. stating that the speaker in not neutral. In the next session the speaker disqualified all the 14 MLA’s under the Anti Defection Law giving the reason that they were talking against the party politics. This instance clearly proves that the Speaker can act partially. In this instance the speaker acted instantly, now let’s look at on more such instance where the speaker is not taking any action.

THE ADVANTAGES AND THE CRITICISM OF THE ANTI DEFECTION LAW

The Anti Defection Law is a very good step to provide stability to the political bodies. It makes democratic alignment possible between various different parties, which have increased the trend of Collation form of Government. The biggest advantage of this law in India is that it has tried to curbed corruption at the political level.
But like every coin have two sides, this Anti Defection Law on the other hand also have certain lacunas as well. One of the points of criticism of this legislation is the irrational and illogical difference made between individual and group defection. Furthermore it neither expels any person who had been disqualified under defection. The discrimination made by this law between Nominated candidates and the Independent Candidate seems to be illogical, as an independent member on joining a party is disqualified, but a nominated person can join any political party up to a period of 6 months. The biggest defect under this law is caused by giving supreme power to the speaker of the house without mentioning any time framework.

91st AMENDMENT ACT, 2003

As we had looked at the criticisms of the Anti Defection Law, it’s time to look at the 91st Amendment Act, 2003. This amendment was brought to tackle and clear the points no which it had been constantly criticized. Some of the reason behind bringing this amendment in the anti defection law are: constant demand of amendment as it had been criticized on certain grounds; Furthermore The Commission on Electoral Reform (Dinesh Goswami Committee) in 1990 and the National Commission to review the working of the Constitution in 2002 also recommended to drop and add certain new provisions in the Anti Defection Law and due to these recommendation this amendment was brought. This 91st Amendment Act added a number of provisions, let’s look at the reasons which were been added in the Tenth schedule in 2003:-

  1. “The Total number of Ministers, including the Prime Minister, in the central government shall not exceed 15% of the total strength of Lok Sabha.
  2. A person disqualified under defection will not be allowed to become a minister both in the center government.
  3. The total number of Minister including the Chief Minister, in the state government shall not exceed 15% of the total strength of Legislative Assembly of the State, but the number of minister including the Chief Minister shall not go below 12.
  4.  A person disqualified under defection will not be allowed to become a minister both in the state government.
  5. A person once disqualified shall not hold any remunerative post in the parliament.
  6. The provision of the 10th Schedule pertaining to exemption from disqualification in case of split by one-third members of the legislature party has been deleted. It means that the defectors have no more protection on the ground of Split.”xiv

INTERNATIONAL SCENARIO OF THE ANTI DEFECTION LAW

The Anti Defection Law is not only prevailed in typical democratic countries like India but is followed in various other democratic countries as well. There are around 40 Nations which have adopted the Anti Defection Law. Different nations use different terms for the Anti Defection Law, For Example: Floor Crossing in the British House of Commons. It is interesting to know that the desirability to ban defection was not considered by any Western Countries. In the South Asia there are four countries to pass the Anti Defection Law: India (1985), Pakistan(1997), Sri Lanka(1998), Nepal(1997).
USA follows presidential form of government. Therefore the members of the house have the power to vote for any policy of law without any fear of disqualification. In spite of that the members follows strict party discipline. If any member votes against the party lines than sanctions are imposed against such member. Although such sanctions are challenged many times in the Apex Court, yet the discipline is followed by the members.

CONCLUSION

This Anti Defection Law added in the 10th Schedule of the Indian Constitution appears to be overreaching legislationxv. But when we look at the political crises that are currently happening in India on the denouement we can say that this legislation had succeeded in certain circumstances but yet there are certain ambiguities due to which such crises are happening in India. If the defects in the law are not fixed immediately then the Federal character of our nation will soon be converted, within a short time, into a unitary form of Nation. This 35 year old law has certain lacunas due to which there is a raise in these political crises in India, these needs to be dealt with immediately. The Political Parties uses these loopholes to fulfill their gluttony of coming into power which had resulted into increase in the game of Anti Defection Law in India and as a consequence of which there is a lack of political stability in India. The 10th Schedule of the Constitution provides for four grounds of defection: first ground is when one person resigns from his own parent political party and joins another political party, second is when the elected member votes against the parties direction, thirdly when the independent member joins a political party and last ground is for a nominated member he will also be defected if he joins any political party after a period of 6 months. Moreover the 10th Schedule also provides for 2 exceptions: the first exception is for the speaker or the presiding officers, and the second exception is applicable in the case of mergers of Political Parties. Furthermore this Law had given extensive powers to the speaker of the house. The speaker under the Anti Defection Law is like a tribunal, and due to such powers been conferred to him he can act partially as we saw in the case of Arunachal Pradesh and Telengana’s Legislative Assembly. Yet a positive step was taken by the parliament through the 91st Amendment Act, 2003 in which various irrational provisions of the act were removed. Overall it can be said that is was a bold step taken by the government in 1985 to curb corruption, provide stability, and makes the democratic alignment possible. But now the time had came, when this Law require furnishing ratification which could curb the increasing menace in the Indian Politics. This comprehensive legislation is now needed to be converted into an umbrella legislation which should cover all the political menaces happening in India. We also looked at the structure of Anti Defection Law at International Level, and came to know that this Law is not only an essence in the typical Indian Democracy rather it is the need of every democratic nation. About 40 nations have this anti defection law. Even in presidential form of Government like in US the member’s follows strict party discipline. Thus we can conclude that this Anti defection Law is broad umbrella legislation, having overreaching effect on the Indian Politics, and is an universal legislation followed by almost all the democracies in the world.