The strength of Indian Parliamentary Democracy lies in its people's commitment towards being active participants in the electoral foray by utilizing their right to universal adult sufferage for Legislative Assemblies and Parliament, every five years. These elected representatives are forebearers of the will of the people in the House and they enact laws for the welfare of the people. In these elected members resides the spirit of the sovereign people. What bring an order and ornganisational structure to what could have easily turned into a chaotic interplay of various forces are the political parties. The political parties play a pivotal role in the representative democracy[i]. Each political party representing distinct ideological and aspirational aspects field their candidates in the general elections with its symbol and manifesto. However, any person can contest election as an independent candidate if s/he fulfils the qualification enlisted. The main objective of the elections is to capture political power and to form a government. As per the convention, The party which get the largest number of seats is invited to form government.
However, in recent times, India has been witnessing some departure from the established conventions whereby elected representatives from one party have been switching sides and helping a party that otherwise lacks the requisite number, to form government. This process of Defection has been defined by Soli J. Sorabjee as "the abandonment or disloyalty to duty or ideology. In political term the 'defectors' not only violate the credibility of political party on whose ticket they were elected but also betrays the electors who had voted for them. It commits a breach of faith not only to the party on whose ticket the member has been elected but also commits a breach of faith with electorates whose votes were secured on the basis of affiliation with the party."[ii] The 10th Schedule was inserted in the constitution to curb this menace of defection and to reduce the power of money used for alluring the elected members to break or topple government and to ensure that elected members remain loyal to the party on whose ticket he/she has been elected as well as electors. This article explores the rationale behind the insertion of the 10th Schedule while examining its efficacy in achieving its desired objective.
Despite the presence of a thriving multiparty system in India, till 1967 the political system was predominantly controlled by the Grand-Old Congress Party, both at the Centre as well as at State level. Eminent Political Scientist, Rajni Kothari termed it as the 'Congress System'[iii].
With the passage of time and the emergence of regional political parties, this system saw vibrant changes whereby the regional political parties due to their numerical strength could propel themselves to the centre stage and play a significant role in the government formation. While this strengthened the desired diversity in the political arena, it also created the nuisance of defecting representatives who, devoid of any altruistic idealism and driven solely by their self-centred greed, were more than willing to switch sides thus eroding the very legitimacy of the electoral process. It must be clarified here that, though the problem of defection was nothing new the act was primarily on the basis of political issues and ideological differences. In addition to this, political morality was at low ebb and scourge of corruption was increasing. Political differences had ceased to be issue-based.[iv] Ethical considerations in the resolution of issue based political differences were pushed into background and defection provided the opportunity to achieve overambitious goals of power hungry politician.
The situation between 1967 to 1971 was so grave that jokingly this phase has been termed as that of 'AYARAM GAYARAM' when as many as 142 MPs and over 1900 MLAs changed their political parties.[v] In this context of weakening democratic ethos, there was a dire need to create mechanisms that would discourage these tendencies and discipline the legislators and for this objective on December 8, 1967, the Lok Sabha constituted a high-level Committee (Known as "Committee on Defection") under the chairmanship of then Home Miniter Y. B. Chavan. The Committee in its report dated January 7, 1969, made certain recommendations for outlawing defections. Keeping in view these recommendations, the Constitution (Thirty-second Amendment) Bill, 1973, was introduced in the Lok Sabha on May 16, 1973, but the Bill lapsed on account of the dissolution of the House. Thereafter, the Constitution (Forty-eighth Amendment) Bill, 1979, was introduced in the Lok Sabha containing similar provisions. But, it was opposed by ruling as well as opposition parties at the stage of introduction of the Bill, resulting in its withdrawal.[vi]
But in Jammu and Kashmir, there was a provision under the Jammu and Kashmir Representation of the People Act, 1957 in section 24G that "any person can be disqualified if having been elected voluntarily gives up the membership of the political party on whose ticket he/she contested election." In Mian Bashir Ahmad and Etc. v. State Of J. & K. and Ors.,[vii] the constitutional validity of section 24-G was challenged and the court held that "Section 24-G of the Jammu and Kashmir Representation of the People Act, 1957 is constitutionally valid."
After the assassination of Prime Minister Shrimati Indira Gandhi, the Congress Party came in power with 401 seats and Rajiv Gandhi became the Prime Minister . The President of India, while addressing the Pariament assured that "the government is bringing a law to curb the menace of defection" and consequently the Parliament by the Constitution (Fifty-second Amendment) Act, 1985, added 10th Schedule (Popularly known as Anti-defection Law) in the constitution with the aim "to curb defection to bring the political stability and to discourage the practice of defection of members from one party to another after their election." It came into force on March 1, 1985. The basic object[viii] of this law was to discipline the legislators but to what extent this law could achieve its desired goal it is a matter of debate even today in 2020.
To maintain and sustain the process of democratic governance the Fifty-second Amendment Act, 1985, made necessary changes in Articles 101, 102, 190 and 191, besides adding the Tenth Schedule in the Constitution.[ix] It contains provisions as to disqualification on the ground of defection along with certain exceptions. Paragraph 2 of the Tenth Schedule provides that "a member of a House belonging to any political party shall be disqualified for being a member of the House- (a) if he voluntarily gives up his membership of such political party; or (b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs, without obtaining the prior permission of such political party." Such direction (i.e., whip) may be issued by the political party or any person or authority authorised by it, in this behalf.
The court in Ravi S. Naik case[x] held that "the words "voluntarily given up his membership of such political party" are not synonymous with "resignation" and would have a wider connotation, even in the absence of a formal resignation from membership, an inference could be drawn from the conduct of a member that he had voluntarily given up his membership of the political party to which he belonged."[xi] Thus, the act of voluntarily giving up the membership of the political party, may be express or implied, non-fulfilment of formalities for joining a party is of no consequence.[xii] Clause (2) of Paragraph 2 provides that an independent member[xiii] shall be disqualified for being a member of the House if he joins any political party after such election.
There were three exceptions in 10th Schedule, one Paragraph 3 (If 1/3 member of a party through split change party), two, Paragraph 4 (If 2/3 member of a political party merge with another political party) and Paragraph 5 (If a member after being elected as Speaker or Deputy Speaker resign and rejoin political party if he demits that post.) Para 3 was repealed by the 91st Constitutional Amendment Act, so now there are two exceptions in Para 4 and 5..
Under Paragraph 6 of 10th Schedule, the Speaker has power to disqualify a member on the ground of defection and his/her decision shall be final but while s/he is exercising the power to disqualify members, s/he acts as a Tribunal and validity of the orders thus, can be questioned in the writ jurisdiction of the Supreme Court or High Courts.[xiv] The scope of judicial review in this matter is limited and the orders can be challenged on the ground of ultra-vires or malafides or having been made in colourable exercise of power based on an extraneous and irrelevant considerations. The order would be a nullity if rules of natural justice are violated.[xv] The Speaker while functioning under the 10th Schedule had no power to review his/her own decision on the question of disqualification and the same can only be corrected by judicial review.[xvi]
The constitutional validity of 10th Schedule was challenged in the Apex Court in the case of Kihota Hollohon v. Zachilhu.[xvii] The Apex Court upheld the constitutional validity of 10th Schedule but struck down Paragraph 7 on the ground that it takes away the power of judicial review and thus, violates the basic structure. The Court said that "the provisions are salutary and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections." The provisions have been held not violative of the basic structure of the Constitution or any rights or freedoms under Articles 19, 25, 105 and 194.
But Anti-defection law failed to curb the menace of defection. On the contrary, it has rather increased the mass defections due to exception in Paragraph 3 which proved to be its Achilles Heel. Politicians started to change party in groups to avoid disqualification and mostly used to be appointed as ministers. Taking note of the recommendation of the National Commission to Review the Working of the Constitution (NCRWC), the government tried to make Anti-defection law more efficient and the 10th schedule was amended by the Constitution Ninety-first Amendment) Act, 2003,[xviii] and Paragraph 3 have been repealed. Article 75 (1A) limited the total number of ministers upto 15% of the total number of House of Peoples, Article 75 (1B) put the limitation on the disqualified person to be appointed as a minister. Same kind of limitation was also imposed at state level through Article 164 (1A) and Article 164 (1B). Article 361-B was also inserted in the Constitution. Article 361-B debars "a Member of the House of any Legislature, who is disqualified on the ground of defection under the 10th Schedule, from holding any public office as a minister or any other remunerative political post, for the duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or till the date on which he contests an election to a House and is declared elected, whichever is earlier." The government through this amendment put the limitation on the number of ministers so that frequent defections in lure of office can be prevented and also an attempt was made to prevent defectors to hold any public offices such as ministership or any other remunerative post. Thus, a defector neither can be appointed as a minister nor will hold any remunerative post from the date of disqualification till the date on which the term of his office as such member would expire or where s/he contests any election.
This well-intentioned attempt however, lacked sustainability and failed to curb the menace of defection in India. The problem was that this law basically applies when any legislator after being elected change political party and join another political party. However, Indian politicians were far too creative to transverse across these complications by just before election as there is no such law in our country to control it. In recent past, we also saw cases where legislators first resign from the party membership and as MLA/MP and then joined another political party. Because of this, the entire purpose of the 91st Constitutional Amendment seems to be frustrated. In Madhya Pradesh almost all the defectors have been inducted in the Cabinet even without being elected. It could be possible because we have no such law to prevent the entry of such defectors. There is also an example of Arunachal Pradesh[xix] where almost all of the Congress Party legislators merged with another political party.
The whole object of Anti-defection law was to discipline the legislaors but it seems that this law could not contain defection, the politicians continuously changing their party affiliation and this system of political turncoats has become rampant, especially after 2014. Defections also undermines the power of ballot because voters through election give mandate to any political party to form the government. Defectors by changing their party affiliation allow other political party to form government which was rejected by the voters in the election. The ensuing changes in the government composition following defection in Arunachal Pradesh (2016), Goa (2019), Manipur (Manipur), Karnataka (2019), Madhya Pradesh (2020) and currently the ongoing power struggle in Rajasthan are some of the illustrations of this assertion.
Defectors have no fear as they mostly join the ruling party and the Speaker who has the power to disqualify belongs to the ruling party, therefore, the chances are too remote that the Speaker being political person will decide against the will of his/her political party.
In 2019, 17 Congress Party MLAs in Karnataka submitted resignation to the Speaker followed by their disqualification. The matter reached the Apex Court where a 3-judge bench of NV Ramana, Sanjiv Khanna, and Krishna Murari, JJ had upheld "the decision of Karnataka Speaker's to disqualify 17 rebel MLAs on the ground of defection. However, it set aside the part of order that disqualified members can't contest elections till the end of the current Assembly term i.e. the 15th Legislative Assembly of Karnataka. It, hence, directed that these 17 Karnataka MLAs can contest the by-elections in the state"[xx].
Out of the 17 defecting Congress-Janata Dal (Secular) MLAs, 11 were re-elected on a Bharatiya Janata Party (BJP) ticket. Earlier they were MLAs on the ticket of Congress Party and now they are MLAs on the ticket of ruling BJP and most of them are ministers. This reflects the ineffectiveness of the Anti-Defection Law. There is no fear of Anti-defection law in the mind of such defectors and this trend is more dangerous. Earlier the legislators used to change party after being elected for getting the berth in the Cabinet. But now they are toppling the government of their party and joining another party after resigning from the membership of the party and MLA/MP. They are contesting by-election on the ticket of newly joined party. Because of all these defections, there is an undue burden on the government exchequer. Such people should not be allowed to contest election for at least 5 years. This judgment will help the defectors to change parties because they know that after some period of gap, they may be elected again for the same Assembly/Parliament. Unless there is a thorough contemplation and reconsideration on this judgment, the desire to have disciplined politicians would always remain a chimera.
In Keisham Meghachandra Singh v. The Hon'ble Speaker Manipur Legislative Assembly & Ors.,[xxi] the Supreme Court has held that "Speaker of the Legislative Assembly should decide on a petition seeking disqualification of a member under 10th Schedule of the Constitution within a period of three months, in the absence of exceptional reasons. The bench also acknowledged the problem of Speakers acting in a partisan manner due to their political loyalties. Therefore, the bench suggested that "the Parliament should amend the Constitution to provide for an independent mechanism, such as a Permanent Tribunal headed by retired judges, to decide disputes under Tenth Schedule."[xxii]
Currently, there is confrontation between the judiciary and legislature on the issue of show cause notice by the Speaker of Rajasthan Legislative Assembly to 19 MLAs for not attending Congress Legislature Party meeting. These 19 MLAs challenged the show cause notice in the Rajasthan High Court which has given a decision in Prithviraj Meena v. The Hon'ble Speaker, Rajasthan Legislative Assembly Jaipur Rajasthan, to follow status quo while awaiting the proceedings before the Supreme Court which shall be hearing the matter next on 27th July 2020. Even in Kihota Hollohon case, the Court held that "having regard to the constitutional scheme in the 10th Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairman. No interference would be permissible at an interlocutory stage of the proceedings."
It can be concluded that this legislation has proved to be completely ineffective in curbing the menace of defection. It is really difficult to prevent defections because politician mostly join ruling the party in the House to which even the Speaker belongs to. The lack of non-partisan and ethical conduct by those in privileged positions such as that of the Speaker further jeopardizes the efficacy of the Anti-Defection Law in India. Some hope could be seen in the Apex Court's suggestion given in Keisham Meghachandra Singh case, whereby it stated that "the power should be vested in independent tribunal" as also suggested by the different Commissions in the past. The government should do the needful in this direction while adopting a more stringent approach.
To check unprincipled defections these measures may be effective: One, on the pattern of Lily Thomas case, the Apex Court should issue directions that the defected person automatically should be treated as disqualified and s/he should not be allowed to be elected for either house at least for 5 years. Such defectors should also not be allowed to be appointed as a minister even for a single day. In addition to this, the benefit of Article 75 (5) and Article 164 (4) should not be available to the defectors. Two, if any person resgins from the membership of a party and the membership of Assembly/Parliament and joins another political party, there shall be a limitation of their chance (including spouce) to contest by-elction on the ticket of another political party. Unless such defector complete suitable cooling period in that party. Three, there is a need to amend law that no person should be allowed to change party after announcement of elections. If s/he joins another political party just before election for contesting election, should not be allowed to contest unless s/he complete suitable cooling period in newly joined party. In existing law, there is no provision to check such defections just after an announcements of election. Not overruling the possibility of the inherent intentional and unintentional delay in formulating and adopting of such a law, the author would like to call upon the Judiciary to rise to the occasion while asserting itself as the custodian of the constitutional values and democratic ethos of the country and issue direction in this regard. Four, in this era of politics of prepoll alliance, if any party contested election as a partner of prepoll alliance, after an election they should not be allowed to quit from prepoll alliance. If they quit, they should be disqualified under the Anti-defection law. To change the dynamics of a toothless tiger to an effective piece of legislation completely fulfilling its desired objectives, there should also be provisions dealing with such actions by political parties. This suggestion originally given by the Administrative Reforms Commission becomes significant especially in the era of coalition politics and formation of prepoll alliances. If defections is not prevented, the definition of the democracy, 'Government of the people by the people for the people' will be replaced with, 'government of the defectors by the defectors for the defectors.'
To maintain the sanctity of the electoral process it is absolutely necessary now to take proactive measures in this direction.
Views are personal only.
(Author is a Associate Professor at Faculty of Law, Jamia Millia Islamia, New Delhi. E-mail: asad_malik email@example.com and firstname.lastname@example.org)
[i] The term political party was used first time in the 10th Shedule of the Constitution.
[ii] Dr. Subhash C. Kashyap, Anti-Defection Law and Parliamenary Privileges, v Forward (2003).
[iii] Rajni Kothari, 'The Congress 'System' in India', Asian Survey, 4 (12), 1161-1173.
[iv] Verma, J.S., New Dimensions of Justice, 210 (2000).
[vi] Supra note 2 at 2-3.
[vii] 13 November, 1981 Jammu & Kashmir High Court
[viii] "An anti-defection clause enables a political party to prevent defections of its elected members, thus ensuring that they continue to support the party under whose aegis they were elected. It also prevents parties in power from enticing members of small parties to defect from the party upon whose list they were elected to join the governing party." See, KuldipNayar v. Union Of India &Ors, AIR 2006 SC 3127
[ix] Supra note 2 at 5-6.
[xi]Ibid. Also see, Rajendra Singh Rana v. Swami Prasad Maurya (2007) 4 SCC 270, Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Assembly (2004) 8 SCC 747, Jagjit Singh v. State of Haryana, AIR 2007 SC 590 and G. Viswanathan v. Speaker, T.N. Legislative Assembly, AIR 1996 SC 1060.
[xiii] It means any person elected as a member otherwise than as a candidate set up by any political party.
[xv] Jagjit singh Case para 11.Also see, Balchandra L. Jarkilioli & Others v. B.S. Yeddyurappa & Others, 2011 (6) SCALE and Raja Ram Pal v. Hon'ble Speaker, Lok Sabha and Others, (2007) 3SCC 184
[xvi] Kashinath G. Jalmi v. The Speaker, AIR 1993 SC 1873. These observations were reiterated with approval in Jagjit Singh v. State of Haryana, AIR 2007 SC 590
[xvii] (1992) 1 SCC 309.
[xviii] This Amendment came into force on 1st January, 2004.
[xix] Khandu and 43 of 44 Congress MLAs joined the PPA. See, Samudra Gupta Kashyap, In Arunachal, CM Pema Khandu wins musical chairs game for BJP, 1&2, Indian Express (January 1, 2017).
[xxi] Decided on January 21, 2020. Also see, Shri T.N. Haokip v. Shri Thounaojam Shyamkumar, Spaeker Tribunal , SC, March 28, 2020, Khumukcham Joykishan Singh V. The Hon'ble Speaker & ors., The Manipur High Court on June 8, 2020, Deepak Singh v. Chairman Legislative Council Uttar Pradesh & Ors., June 12, 2020, R. Sakkrapani v. The Secretary, TN Legislative Assembly, July 08, 2020 SC.