Introduction

Recently, due to the upcoming Rajya Sabha elections in the state, Manipur’s Speaker Mr Y Khemchand passed a decision that he kept pending for the past 3 years. He disqualified three Members of the Legislative Assembly (MLA’s) of the state assembly belonging to Indian National Congress (‘Congress’) and the state’s only Trinamool Congress (TMC) MLA leading to the victory of the Bharatiya Janta Party (BJP) candidate with 28 votes to the Congress’ 24.[i] The result revealed that the speakers’ manoeuvrings were crucial to the outcome. The Rajya Sabha is considered to convey the will of the state assemblies.

 In this instance, it was more of a representation of the political bias of the Speaker himself. The politics in the State of Manipur perfectly pictures how the law is being made a secondary function of power. The event demonstrates the utter collapse of anti-defection laws, formed to combat political malfunctions in legislatures. In this situation, various articles of the constitution were violated by the dominant party “BJP” to get its nominee elected. As is now evident, while the law has failed to fulfil its primary objective of trying to prevent defections, its side effects have been worse, putting elected legislators under the power of unelected party leaders, suppressing the true democratic voice of elected legislatures.[ii]

What is Anti-defection law?

Defection in general usage means floor crossing by a member of one political party to another. It causes instability in governments and they are sometimes toppled due to defection. Defection is undemocratic as it is against the electoral verdict and a form of corruption done by a member to get personal benefits rather than resigning because he may disagree with policies/ working of the party to which he belongs but ironically such principled defectors are rare in India. This is very well illustrated by the episode in 1997, when Kalyan Singh government in Uttar Pradesh was supported by the defectors of Congress and Bahujan Samaj Party (BSP). Almost all the defectors were appointed as ministers leading to the formation of a cabinet with 94 ministers, which is an unprecedented event.[iii] There were various other instances, making it necessary to enact a law to suppress vices of defection.

The Fifty Second-Amendment Act, 1985 added the Tenth schedule and changed four articles dealing with membership and disqualification of Member of Parliament and State assemblies. This amendment act is generally referred to as Anti-Defection Law.

Paragraph 2 of X schedule describes grounds for disqualification, which includes –

• On voluntary giving up of membership of the political party.
• If member votes or abstains from such voting in contrary to any direction issued by a political party to which he belongs or any person authorized in this behalf without prior permission of such political party.
• If an elected member joins any political party for which he had not been set up as a candidate.
• A nominated member of any house, if joins any political party after 6 months of taking his seat.

Para 4 provides that no disqualification on the grounds of the merger of one political party into another with condition precedent that at least 2/3^rd member of a political party should agree for such a merger.

Para 6 provides the final authority to take the decision is Chairman/ Speaker if any question arises for the disqualification of any member of the house on the ground of defection. The Speaker/ Chairman is not authorized to take any Suo moto cognizance on the question of defection by a member, it can only be done on a written petition filed by any member of the house.

Para 7 excludes the jurisdiction of the court with respect to any matter related to the disqualification of a member under this schedule.

The constitutionality of anti-defection law was challenged before the Hon’ble Supreme Court in the case of Kihoto Hollohon v. Zachilhu[iv], this act was held constitutional with a majority of 3:2, but the court ruled out that speaker decision (Para 6, Tenth Schedule) on the disqualification of a member on grounds of defection is subjected to judicial review under article 136, 226 and 227[v] on grounds of jurisdictional error, violation of constitutional provisions, non-compliance with rules of natural justice and with mala-fide motives.

The court observed while ruling on the constitutionality of anti-defection law that the object of this law is “To strengthen the fabric of parliamentary democracy in India by curbing unprincipled and unethical political defections”. The minority view pointed out that the Speaker/ Chairman of the house cannot act in the role of independent adjudicatory authority as the speaker depends on the support of the majority in the house.[vi]

The anti-defection law has miserably failed to prevent defection, on the other hand, it has promoted mass defection in the form of mergers and splits of political parties. This law has given birth to more controversies than it has been able to resolve. For example, in Meghalaya when the no-confidence motion was presented before the house, Speaker suspended voting rights of 5 members and hence the motion was defeated.

In the last 34 years of application of anti-defection law, one serious question which was raised time and again is that whether the power to disqualify members on grounds of defection should solely be vested in the speaker/chairman. Supreme Court with various judgments, such as Jagjit Singh[vii] and Dr Kashinath[viii] made it clear that they are not in favour of vesting such crucial power in politically biased speaker/chairman.

 Misuse of Speaker’s Power

The Tenth Schedule vests sole power in the Speaker to decide the disqualification of a member on grounds of defection. Time and again it has proved that the speaker is a political creature and his office is dependent on the pleasure of the majority support. Therefore, he cannot be provided with the role of independent adjudicatory authority.[ix]

Furthermore, there is no time restriction provided under the Tenth Schedule for Speaker/ Chairman to decide upon the disqualification upon receiving a petition and this loophole is misused by political parties.[x]

The example of Manipur illustrates the arbitrary manner in which Speaker/ Chairman authorizes their power, In the same way, Jyotiraditya Scindia along with 22 congress MLAs joined BJP. Before that, in goa when BJP only had 13 to Congress’ 17 MLAs, MLAs of congress came forward and joined BJP to form the government. Even Telangana for that matter, where the governing Telangana Rashtra Samiti added support to its small majority in the Assembly by stealing 12 of the 15 Telugu Desam MLAs and 7 of the 21 Congress legislators on its side. Similarly, last year 16 MLAs of the ruling party of Karnataka Assembly issued their resignation resulting in the government in the state of turmoil.[xi] With this political churning, it is clear that some MLAs now no more work for the parties they join, but they are self -employed politicians, available for any job which provides them a hefty amount and good position.

Anti-defection laws in other countries

There is no denying of the fact that defection is undemocratic as it rejects the electoral verdict moreover takes place out of selfish motives, but the question arises, what actions should come under defection laws.  In countries like the US, Australia, and Canada, there is no bar on legislators to cross sides, as this freedom to cross over shows the democratic values and freedom of speech in the country.

In 2019, 21 MPs of the ruling Conservative Party in the UK voted against their own Prime Minister Boris Johnson’s bill on the exit of UK from EU without an agreement between the two. There were no charges levied against them, moreover, the event was celebrated as those MP’s put national interest over party’s interest.[xii]

India has taken its parliamentary system from Britain but doing the same in India would result in the disqualification of a member from the house as per anti-defection laws. Recently during the Rajya Sabha elections in the state of Madhya Pradesh, one BSP MLA voted in favour of BJP’s candidate as soon as he was disqualified from the house. Changing political parties for personal gains should not be allowed, but sometimes members may disagree with the direction issued by the party due to constituency needs or national interest, still doing the same is illegal and might result in disqualification, degrading the values and liberty offered by a parliamentary democracy.

Limitations in anti-defection laws in India

• No time restriction for Speaker/ Chairman to decide petition for disqualification filed before him.
• It is evident that the speaker/ Chairman is a political creature and there is a very strong probability that he would be unable to act as an independent adjudicatory authority.
• Mere voting against guidelines of party/ authorized person, should not be a ground of defection (as the case in Britain), because in that case members are being forced to put party interest over national interest.
• Once, a member is disqualified on proved defection there is no bar on re-election and it is seen many times that such defected members got again elected to house.

The anti-defection laws need amendment because it primarily erodes the basics of democracy. There should be independent authority to decide the question of disqualification or should be decided by the president/ governor on the aid and advice of election commission. Also, there should be a reasonable time period for the speaker to decide the X schedule disqualifications. “Democracy is of the people, by the people, and for the people”. The fundamental principle of democracy is to protect the desires of its people. Legislator’s loyalty towards their party should not be their first priority, but to the people who elected them. This law has minimized the freedom of speech and vote and has made the political party an undemocratic institution. Thus, anti-defection law must either be amended or repealed to strengthen Indian democracy.

[i] Shoaib Danial , Manipur’s Rajya Sabha election shows how easily power can overrule the anti-defection law , Scroll.In (Jun 24, 2020, 3:00 PM), https://scroll.in/article/965493/manipurs-rajya-sabha-election-shows-how-easily-power-can-overrule-the-anti-defection-law

[ii] Pradip Phanjoubam, The gross abuse of the Manipur mandate, THE Hindu (Jun 25, 2020, 12:30 PM) https://www.thehindu.com/opinion/lead/the-gross-abuse-of-the-manipur-mandate/article31873142.ece

[iii] MP Jain, Indian Constitutional Law 48-52 (8 ed. LexisNexis 2018).

[iv] Kihoto Hollohon v. Zachilhu, A.I.R. 1993 S.C. 412.

[v] INDIA CONSTI. Art. 136, 226, 227.

[vi] INDIA CONSTI. Art. 85, 67.

[vii] Jagjit Singh v. State of Haryana, A.I.R. 2007 S.C. 590.

[viii] Dr. Kashinath G. Jalmi v. The Speaker, A.I.R. 1993 S.C. 1873.

[ix] Apurva Vishwanath, Explained: How Manipur defections put focus on Speakers’ powers to disqualify, Indian Express (June 25, 2020, 11:40 AM), https://indianexpress.com/article/explained/explained-how-manipur-defections-put-focus-on-powers-to-speakers-to-disqualify-6472904/

[x] Dhananjay Mahapatra, Does anti-defection law need an overhaul?, Times of India, (June 22, 2020 3:20 PM), https://m.timesofindia.com/india/does-anti-defection-law-need-an-overhaul/amp_articleshow/74643907.cms

[xi] Indi-Asian News Service, 16 rebel MLAs who triggered Karnataka political crisis, India Today, (June 23, 2020 4:20 AM), https://www.indiatoday.in/india/story/16-rebel-mlas-who-triggered-karnataka-political-crisis-1570810-2019-07-18.

[xii] Shoiab Daniyal, On Brexit, 21 British MPs voted against their government. Could this happen in India?, Scroll.In (June 23, 2020, 6:30PM) https://scroll.in/article/936499/on-brexit-21-british-mps-voted-against-their-government-can-this-happen-in-india.

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ABOUT THE AUTHOR

Anubhav Maheshwari

Anubhav Maheshwari is a third-year undergraduate student of B.A. LL.B. (Hons.) at Institute of Law Nirma University. He is inclined towards Criminal law and Constitutional law.

Avani Malhotra

Avani Malhotra is a third-year undergraduate student of B.A. LL.B. (Hons.) at Institute of Law Nirma University. Pertaining to the legal field, she is inclined towards criminal law and constitutional law. She can be reached at 18bal012@nirmauni.ac.in.