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Anti Defection Law
Anti Defection Law
UNIVERSITY
LAW
INSTITUTE
BHOPAL (M.P.)
Constitutional Law-I
PROJECT
on
Power to Disqualify
a) The Chairman or the Speaker of the House takes the decision to disqualify a member.
b) If a complaint is received with respect to the defection of the Chairman or Speaker, a
member of the House elected by that House shall take the decision.
Exception
Merger
A person shall not be disqualified if his original political party merges with another and:
He and other members of the old political party become members of the new political
party, or
He and other members do not accept the merger and opt to function as a separate
group.
This exception shall operate only if not less than two-thirds of the members of party in the
House have agreed to the merger.
Para 2-Disqualifications
The section that would verily form the crux of this legislation is paragraph 2 that
gives the circumstances when a member would incur disqualification from the House.
This para would be dealt with in detail under this article, primarily for two reasonsone, that it forms the quintessence of this law and hence, a comprehensive
understanding of this provision is crucial and two, because the judiciary has been
called upon a number of times to interpret its provisions and it has therefore shed
some light on the manner in which these provisions should be construed.
Therefore, we see that the above para sets out when a member would incur a
disqualification (under para 2 (1) (a) and (b)). The provision seems to be fairly clear
when it provides two cases wherein the disqualification would apply- first, when
there is a voluntarily giving up of seat by the member and second, when he votes (or
abstains from voting) contrary to the directive issued by the party. Now, two
important questions arise in this regard
At the first instance, the phrase voluntarily giving up of seat sounds pretty
straightforward. It is giving up of the seat in the House by ones own will. However, the
Courts have given certain pointers on its interpretation. In Ravi Naik v Union of India ,
the Supreme Court says, 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 rendered
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.
Referring to these words, in the case of Rajendra Singh Rana v. Swami Prasad Maurya
and Others1 the Supreme Court held that the act of giving a letter requesting the
Governor to call upon the leader of the other side to form a Government, itself
would amount to an act of voluntarily giving up the membership of the party on
whose ticket the said members had got elected. In this case, in the 2002 Assembly
elections in the State of Uttar Pradesh, a coalition government was formed since none of
the parties secured a majority. In the middle of 2003, a unanimous decision was taken by
1 Rajendra Singh Rana v. Swami Prasad Maurya and Others (2007) 4 SCC
270
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the Cabinet to dissolve the Assembly. After the Cabinets decision and before the
resignation of the leader of the coalition Government (then, Mrs. Mayawati, belonging to
the Bahujan Samaj Party [BSP]), thirteen members from the BSP met the Governor and
requested him to invite the leader of the opposite party (then, the Samajwadi Party [SP])
to form the Government. It was in this context that the Court held the above.
with regard to this provision was whether the proceeding before the Speaker in the nature
of a judicial one, and whether the office of a Speaker in this regard could be termed as a
Tribunal? Answering both the questions in the affirmative the court said, It is therefore
inappropriate to claim that the determinative jurisdiction of the Speaker of the Chairman
in the tenth Schedule is not a judicial power and is within the non-justiciable legislative
area.
Speaking about how the Speakers authority could be a Tribunal, the Court elaborated
thus, Where there is a lis -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.
In Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors. , the
Andhra Pradesh High Court had to decide, inter alia, the question of whether the
Speaker, while exercising jurisdiction, can decide whether or not a Legislator
belongs to a particular Legislature party. Holding that a Speaker could indeed decide
thus, the Court said that if, in deciding the question of a members disqualification
depended upon an answer to which political party had set such member up and whether or
not he belonged to such party, he should be allowed to decide such question. In the words
of the Court, there is nothing in paragraphs 1, 2, and 6 of the Tenth Schedule which
fetters exercise of jurisdiction by the Speaker to decide this question.
Paragraph 7 of the Schedule bars the jurisdiction of courts in any matter connection
with the disqualification of a member of House under this Schedule. Of course, this
does not exclude Courts intervention under articles 32, 226, 227, 136 under the
Constitution. This position was made very clear by the Supreme Court in Kihoto
Hollohans case. Citing various authorities, the court analyzed the meaning of the word
final in the context of such clauses and said, There is authority against the acceptability
of the arguments that the word final occurring in paragraph 6 (1) has the effect of
excluding the jurisdiction of the courts in articles 136, 226, 227.
The final provision in this legislation gives the Speakers of the House to make rules for
giving effect to any provision contained in the Schedule. In pursuance of this power, the
states of Goa, Maharashtra, Gujarat, Haryana, Bihar, Kerala, Karnataka and others and
also the Houses of the Parliament, both the Rajya Sabha and Lok Sabha have made rules
in this regard. These Houses would be bound by the rules contained in the Schedules as
also the ones that have been enacted specially for them.
So if he joins a new party after being expelled he can be said to have voluntarily given up
membership of his old party.
When can a court review the Speakers decision making process under the Tenth
Schedule? The Supreme Court addressed this question in Rajendra Singh Rana and Ors.
v. Swami Prasad Maurya and Ors. 6 the court held that if the Speaker fails to act on a
complaint or accepts claims of splits or mergers without making a finding he fails to act
as per the Tenth Schedule. The Court said that ignoring a petition for disqualification is
not merely an irregularity but a violation of constitutional duties.
In the case of Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative 7 Assembly the
Supreme Court decided on the question whether a Speaker can review his own decision to
disqualify a member under the Tenth Schedule. The Court held that the Speaker of a
House does not have the power to review his own decisions to disqualify a candidate.
Such power is not provided under the Schedule and is not implicit in the provisions either.
6 Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and Ors. (2007)
4 SCC 270
7 Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative (1993) 2 SCC 703
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Pre-poll electoral fronts should be treated as political parties under the anti-defection
law.
Political parties should limit issuance of whips to instances only when the
government is in danger.
Election Commission
Decisions under the Tenth Schedule should be made by the President/ Governor on the
binding advice of the Election Commission.
Defectors should be barred from holding public policy or any remunerative political
post for the duration of the remaining term.
The vote cast by a defector to topple a government should be treated as invalid
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CONCLUSION
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BIBLIOGRAPHY
www.prsindia.org
www.manupatra.co.in
www.indialawjournal.com
www.indiankanoon.org
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