Anti-Defection Law : What Amounts To Voluntary Giving Up Of Party Membership Under Tenth Schedule Of Constitution?

Anti-defection law under the Tenth Schedule of the Constitution has once again come to the fore with the political crisis that has rocked Rajasthan in the wake of the rebellion led by a camp of Congress MLAs led by Sachin Pilot.

The issue has now reached the High Court of Rajasthan, after the Pilot camp approached it challenging the disqualification notices issued by the Speaker.

The Speaker's show-cause notice is premised on the ground that refusal to attend party meetings as per the directives of the party whip amounts to anti-party activities, attracting defection under Tenth Schedule.

Pilot and 18 other dissident MLAs have argued before the Court that their actions cannot be construed as giving up of membership of the party.

In this backdrop, this piece attempts to examine the ambit of "voluntarily given up his membership" of party as stated in Paragraph 2(1)(a) of the Tenth Schedule of the Constitution, as explained by judicial decisions.

Disqualification for Membership :

The Constitutional Provision which deals with the disqualification of a member of a legislative assembly or legislative council of a state is mentioned under Article 191 of the constitution. The essential conditions for such a disqualification are :

• A person will be disqualified from the post of the member of a legislative assembly or legislative council of a state, if he holds an office of profit under the government.
• A person having unsound mind as declared by a court of law.
• A person who is an undischarged insolvent
• A person who is not a citizen of India; alien.
• Statutory disqualification. (eg. Representation of people's Act, 1951)

Clause (2) of Article 191 states, "A person shall be disqualified for being a member of the Legislative Assembly or Legislative council of a state, if he is so disqualified under the Tenth schedule"

Tenth schedule and the condition, "voluntarily giving up his membership".

The statement and Reasons elaborated in the Constitution (Fifty- second Amendment) Act, 1985, which realised the tenth schedule in the constitution, states the following words:

"The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance. "

The Tenth Schedule of the Constitution was added with effect from 01/03/1985 and it provides 'provisions as to disqualification on ground of defection'.a

Paragraph 2 of the tenth schedule provides two explanations related to the disqualification on the ground of defection. The first explanation is that, "if he has voluntarily given up his membership of such political party". The political party referred here is such party from which the member contested for the purpose of election and became a member of the house.

The second explanation is, "if he votes or abstains from voting in such hose contrary to any direction issued by the political party to which he belongs or by any person or authority he authorized by it in this behalf , without obtaining , in either case, the prior permission of such political party, person or authority, and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the state of such voting or abstention"

The underlying object and the purpose which the Tenth Schedule seeks to achieve were explained as under in Kihoto Hollohan v. Zachillhu and Others, 1992 SCC Supl.(2) 651:

These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The same yardstick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election.

"Voluntarily giving up his membership" not synonymous with resignation.

The scope and extent of the explanation 2(1)(a) is well explained in the Supreme Court decision in Ravi.S.Naik v. Union of India, 1994 (Supp.) 2 SCC 641. 

"The words voluntarily given up his membership" are not synonymous with "resignation and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an 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", the court observed.

In G. Viswanathan & Ors. v. Hon'ble Speaker Tamil Nadu Legislative Assembly & Ors. 1996 SCC (2) 353, the Court observed that the act of giving up membership can be either "express or implied".

It appears that since the explanation to para 2(1) of the Tenth Schedule provides that an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member, such person so set up as a candidate and elected as a member, shall continue to belong to that party. Even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as 'unattached'. The further question is when does a person "voluntarily give up" his membership of such political party, as provided in para 2(1)(a)? The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member."

Mahachandra Prasad Singh v. Bihar Legislative Council, (2004) 8 SCC 747 , the Supreme Court observed that contesting Parliamentary election on a ticket of party which is different from the party under which he became a member of state legislative assembly amounted to giving up membership.

"In the present case, the Chairman of the Legislative Council has held that the petitioner had been elected to the Legislative Council on the ticket of the Indian National Congress but he contested the parliamentary election as an independent candidate. On these facts a conclusion has been drawn that he has given up his membership of Indian National Congress. This being a matter of record, the petitioner could not possibly dispute them, and that is why he has admitted these facts in the writ petition as well. In such a situation there can be no escape from the conclusion that the petitioner has incurred the disqualification under paragraph 2(1)(a) of the Schedule and the decision of the Chairman is perfectly correct." , the Court observed.

Burden of Proof.

 The burden of proving that there was no intention to give up membership is on the legislator against whom disqualification proceedings have been initiated.

In R.S Naik (Supra), the SC observed that, "In the present case Naik has not disputed that he has given up his membership of his original political party but he has claimed that there has been a split in the said party. The burden, therefore, lay on Naik to prove that the alleged split satisfies the requirements of paragraph 3. The said requirements are:

(i) The member of a House should make a claim that he and other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original party; and

(ii)Such group must consist of not less than one-third of the members of such legislature party"

Power of the Speaker to decide.

The Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip. The decision of the speaker must be in consonance with the basic conduct or actions taken by the member, which may amount to voluntarily giving up his membership. This position of law was reiterated in a recent decision of the apex court in Ram Chandra Prasad Singh v. Sharad Yadav which was decided on 19th March of 2020. The Court observed that :

In Shrimanth Balasaheb Patil Vs. Hon'ble Speaker Karnataka Legislative Assembly and Others, (2019) 15 Scale 533, the apex court had considered the law laid under paragraph 2 of the tenth schedule. The Court had laid down the following :

In addition to the above, the decision of the Speaker that a member is disqualified, relates back to the date of the disqualifying action complained of. The power of the Speaker to decide upon a disqualification petition was dealt by a Constitution Bench of this Court in Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270. This Court, reading the provisions of paragraphs 2 and 6 of the Tenth Schedule, has clearly held that the Speaker has to decide the question of disqualification with reference to the date it was incurred.

The observation of the Court in Rajendra Singh Rana (Supra) is :

As we see it, the act of disqualification occurs on a member voluntarily giving up his membership of a political party or at the point of defiance of the whip issued to him. Therefore, the act that constitutes disqualification in terms of para 2 of the Tenth Schedule is the act of giving up or defiance of the whip. The fact that a decision in that regard may be taken in the case of voluntary giving up, by the Speaker at a subsequent point of time cannot and does not postpone the incurring of disqualification by the act of the legislator.

Similarly, the fact that the party could condone the defiance of a whip within 15 days or that the Speaker takes the decision only thereafter in those cases, cannot also pitch the time of disqualification as anything other than the point at which the whip is defied. Therefore in the background of the object sought to be achieved by the Fifty-second Amendment of the Constitution and on a true understanding of para 2 of the Tenth Schedule, with reference to the other paragraphs of the Tenth Schedule, the position that emerges is that the Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip.

As per the recent decision of the SC in Keisham Meghachandra Singh v The Hon'ble Speaker Manipur Legislative Assembly and others, the Speaker has to endeavour to decide the disqualification petition within a period of 3 months.