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Anti-Defection Law in India- A Critical Analysis

ABBREVIATIONS A.I.R. A.P. Art Bom. C.A.D C.J Co. E.g. Etc I.C I.L.R J.I.L.I Ltd., S.C.C SC Sec U.O.I U.S.A Vol. All India Reporter Andhra Pradesh Article Bombay Constitutional Assembly Debate Chief Justice Company Example Etcetera Indian Constitution Indian Law Report Journal of Indian Law Institute Limited Supreme Court Cases Supreme Court Section Union of India United Nations of America Volume

Anti-Defection Law in India- A Critical Analysis

BIBLIOGRAPHY
BOOKS REFERRED:
1) Austin Mitchell, “The Whig in Opposition” 1815-1830 (1967) 2)

Basu D.D, “Introduction to the Constitution of India”; Prentice Hall of India P. (Ltd.), 1994

3) De. D. J., The Constitution of India”, Asia Law House, 2nd Edition, 2005 4) Dicey A.V., Law of Constitution, Ed: 9, 1939 5) Diwan Paras, “Aya Ram Gaya Ram: The Politics of Defection”, (1979) 21 JILI 291 6) Gilbert Martin, “The Wilderness Years”, Houghton Mifflin Co, 1982 7) Jackson J. Robert, Rebels and Whips, London, 1968 8) Jain M.P., Indian Constitutional Law, Ed: 5th, 2006, Wadhwa Publications, Nagpur 9) Kashyap Subhas C., “The Politics of Power”, 1974 10)

Kashyap Subhash C., Anti-Defection Law and Parliamentary Privileges, Ed:

2nd, Universal Law Publishing Co. Pvt. Ltd., 2003
11)

Krishan Singh Chauhan, “Anti Defection Law in India a Critical Appraisal”,

M.D. University, Rhotak, 1996
12) 13)

Lane, P.H. “An Introduction to the Australian Constitution”, 2nd Edition, 1997 Laski, Harold J. “Parliamentary Government in England”; Finer Herman

“The Theory and Practice of Modern Government”, 4th Edition, Oxford Publication

Anti-Defection Law in India- A Critical Analysis
14)

Leoni Bruno, Freedom and the Law, D. Van Nostrand Company Inc.

Princeton, New Jersey, 1961
15)

Malhotra G.C, Anti Defection Law in India and the Commonwealth, Lok

Sabha Secretariat, 11th Edition, 2005, Metropolitan Book Co. Pvt. Ltd.
16)

Masodkar B.A., Law Relating to Electoral Disqualification, 1st Edition, N.M.

Tripati Pvt Ltd, 1986
17)

Sartori Giovanni, Democratic Theory, 1st Edition, Oxford & IBH Publishing

Co, 1965
18)

Sharma Mool Chand, “Politics of Defections and Democracy”, (1979) 13

J.C.P.S. 328
19)

Seervai H.M., “Constitutional Law of India”, 4th Edition, Universal Book

Traders, 1999
20)

Singh G.P., “Principles of Statutory Interpretation”, 9th Edition, Wadhwa and

Co. Nagpur, 2004
21)

Sudershan Aggarwal, “The Anti Defection Law in India”, Parliamentarian,

January 1986, LXVII No. 1
22)

Tyagi B.S., Judicial Activism in India, 1st Edition, 2000, Sristi Publishers

INTERNET SOURCE:
1) http://www.indialawinfo.com Last visited on: 29/1/2010 2) http://www.manupatra.com Last visited on: 1/5/2010 3) http://www.supremecourtonline.com Last visited on: 3/5/2010

Anti-Defection Law in India- A Critical Analysis
4) http://www.chr.up.ac.za/hr_docs/constitutions/docs/Zimbabwe

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5) http://www.priu.gov.lk/Cons/1978Constitution/html Last visited on 14/02/2010 6) http://www.info.gov.za/documents/constitution/1996/96cons6.htm#106 Last visited

on 13/10/2010
7) http://www.paclii.org/pg/legis/consol_act/olotioppac2003542/

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8) http://statutes.agc.gov.sg Last visited on: 16/02/2010 9) http://www.sierra-leone.org/Laws/constitution1991 Last visited on 15/02/2010 10)

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http://www.legislation.govt.nz Last visited on: 18/02/2010 http://www.sdnp.org.mw/constitut/dtlindx.html, Last visited on: 16/02/2010

13) http://www.ghanaweb.com/GhanaHomePage/republic/constitution, Last visited on: 16/02/2010

ARTICLES REFERRED:
1. Sripada Rao D., "Anti-Defection Law-Split in Parties", Journal of Parliamentary

Information, 1999
2. Sorabjee Soli J., “First V.M. Tarkunde Memorial Lecture on Indian Democracy

Reality or Myth?", 1997

Anti-Defection Law in India- A Critical Analysis

DICTIONARIES REFFERED:
1. Catherine Soanes, “Oxford Paperback Dictionary Thesaurus and Word Power

Guide”, Oxford University Press
2. Henry Campbell Black M.A., “Black’s Law Dictionary”, West Publishing Co, 1983 3. Ramanatha Aiyer. P, “The Law Lexicon”, Wadhwa Nagpur, 2006

REPORTS/MANUALS REFERRED: 1. AIR MANUAL 2. SUPREME COURT CASES 3. MANUPATRA

Anti-Defection Law in India- A Critical Analysis

LIST OF CASES
1. A.K. Gopalan v. State of Madras, AIR 1950 SC 27 2. Anisminic Ltd. v. Foreign Commission, [1969] 2 AC 147 3. Associated Cement companies Ltd. v. P.N. Sharma and Anr., [1965] 2 SCR 366 4. Australian Boot Trade Employees Federation v. Whybrow & Co., 1910 10 CLR 266 5. Babulal v. State of Maharastra, AIR 1961 SC 884 6. Brundaban Nayak v. Election Commission of India & Anr., [1965] 3 SCR 53 7. Chintaman Rao v. State of M.P, AIR 1951 SC 118 8. Commissioner of Income Tax, Mysore v. Indo- Mercantile Bank Ltd.(1959), Supp. 2 SCR 256 9. Commissioner of Income-tax v. Ajax Products Ltd., [1965] 1 SCR 700 10. 11. 12. 13. 14. Durga. Shankar Mehra v. Reghuraj Singh, AIR 1954 SC 520 Dwaraka Prasad v. State of U.P, AIR 1954 SC 224 Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578 G. Vishwanathan v. Speaker, Tamil Nadu AIR 1996 SC 1060 H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v.

Union of India, [1971] 1 SSC 85 15. 16. Hari Khemu v. Dy Commissioner of Police, AIR 1956 Bom 559 Harinagar Sugar Mills Ltd. v.Shyam Sunder Jhunjhunwala & Ors., [1962] 2

SCR 339 17. 18. 19. 20. 21. Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347 Jaghir Ahmed v. State of U.P, AIR 1954 SC 728 Jagjit Singh v. State of Haryana & ors; AIR 2007 SC 590 Jan Mohammad v. State of Gujarat, AIR 1966 SC 385 Jyoti Basu & Ors. v. Debi Ghosal & Ors., [1982] 3 SCR 318

Anti-Defection Law in India- A Critical Analysis 22. 23. 24. 25. 26. 27. K.K. Kochuni v. State, AIR 1960 SC 1080 Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 Kesavananda Bharati v. State of Kerala, [1973] Supp.1 SCR, Keshav Singh’s Case, 1965 (1) SCR 413 Kihota Hollohon v. Zachillhu AIR 1993 SC 412 Madras & Southern Mahratta railway company v. Bazwada Municipality,

(1944) 71 I.A. 113 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. Makhan Singh v. State of Punjab, [1964] 4 SCR 797 Manilal Singh v. Dr H. Borobabu Singh, AIR 1994 SC 505 Mask & Co. v. Secretary of State, AIR 1940 P.C. 105 Mayawati v. Markandeya Chand & ors., AIR 1998 SC 3340 MCVS Arunchaala Nadar v. Union of India, AIR 1959 SC 300 Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] 1 SCR 206 N.B. Khare v. State of Delhi, AIR 1950 SC 112 Narendra Kumar v. Union of India, AIR 1960 SC 430 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 Parkash Singh Badal & Ors. v. Union of India & Ors., AIR 1987 Punjab &

Haryana 263 38. 39. 40. 41. 42. 43. 44. R.M.D. Chamarbaughwalla v. The Union of India, [1957] SCR 930 R.M.D. Chamarbaughwalla v. Union of India, [1957] SCR 930 Ranjit D. Udeshi v. State, AIR 1965 SC 881 Ravi S. Naik v. Union of India, AIR 1994 SC 1558, S.E. Asia Fire Bricks v. Non-Metallic Products, 1981 A.C. 363 Sajjan Singh v. State of Rajasthan, [1965] 1 SCR 933 Sambhamurthy & Ors. v. State of Andhra Pradesh & Anr., [1987] 1 SCR 879

Anti-Defection Law in India- A Critical Analysis 45. SCR 46. 89 47. 48. 49. 50. 51. State of Madras v. Smt. Champakam, AIR 1951 SC 226 State of Madras v. V.G. Rao, AIR 1952 SC 196 State of Madras v. V.G. Row, [1952] SCR 597 State of Rajasthan v. Union of India, [1978] 1 SCR 1 Superintendent Central Prison, Fategarh v. Dr. Ram Manohar Lohia, AIR Sri Sankari Prasad Singh Deo v. Union of India & State of Bihar, [1952] SCR Shri Kesavananda Bharti Sripadagalavaru v. State of Kerala, [1973] Supp. 1

1960 SC 633 52. 53. 54. 55. The Bribery Commissioner v. Pedrick Ranasinghe, [1965] AC 172 U. N. Rao v. Indira Gandi, AIR 1971 SC 1002 Union of India & Anr. v. Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131 Union of India v. Jyoti Prakash Mitter, [1971] 3 SCR 483

Anti-Defection Law in India- A Critical Analysis

TABLE OF CONTENTS
PAGE No.

CHAPTER I: Introduction
1.1 Research Problem 1.2 Objective of the Study 1.3 Hypothesis 1.4 Significance of Research 1.5 Method of Study 1.6 Chapterization

CHAPTER II: Historical Background and Conceptual Development of Anti-Defection Laws in India
2.1 Introduction 2.2 Historical Background 2.3 Etymology of the term ‘defection’ 2.4 Rationale behind the law relating to defection 2.5 Defections around the Globe 2.6 Special reference to United Kingdom 2.7 Anti Defection Law – Indian context 2.8 Conclusion

CHAPTER III: Commonwealth Experience on Political Defection
3.1 3.2 3.3 Introduction Handling Defection without Legislation Anti-defection Legislation 3.3.1 Voluntarily giving up of membership

Anti-Defection Law in India- A Critical Analysis 3.3.2 Violating party directions/ Whips 3.3.3 Splits/ Mergers 3.3.4 Split Provision Deleted in India 3.3.5 Independent and Nominated Members 3.3.6 Expelled Members 3.3.7 Exempting the Presiding Officer 3.3.8 Presiding Officer as Deciding Authority 3.3.9 Time Limit stipulated for deciding the cases relating to defection 3.4 Conclusion

CHAPTER IV: Anti-Defection Law and Democracy
4.1 4.2 4.3 Introduction Effect of Tenth Schedule on Democracy Comparison between Party Governance and

Individual Representation 4.4 Conclusion

CHAPTER V: The Constitutional Developments and Provisions on “Anti - Defection Law”
5.1
5.2

Introduction Tenth Schedule and the 52nd Amendment to

the Constitution of India

Anti-Defection Law in India- A Critical Analysis 5.3 The Whips: A Critical Appraisal Arguments for Whips Arguments against Whips

5.3.1 5.3.2 5.4

Critical Analysis of Powers of Speaker under

the Tenth Schedule 5.4.1 Arguments for Para 6 and Para 7 of

the Tenth Schedule 5.4.2 Arguments against Para 6 and Para 7 of

the Tenth Schedule 5.5 Conclusion

CHAPTER VI: Judicial development on the Tenth Schedule
6.1 Introduction

6.2The Supreme Court in Kihota Hollohon’s Case 6.3Developments subsequent to Kihota Hollohon’s Case 6.4Conclusion

CHAPTER VII: Conclusion
7.1 7.1 Guidelines

Anti-Defection Law in India- A Critical Analysis 7.2 Suggestions

Anti-Defection Law in India- A Critical Analysis

CHAPTER I – Introduction
The politics of defection has been the bane of the parliamentary system in India. The vice of defection has been rampant in India for quite some time, especially at the State level. The first chapter gives an insight into the highlights of the study with regard to the research problem, the hypothesis, the method adopted for the conduct of the study. It further gives a brief description about the various chapters and their concerns in this study. Under Chapter II which gives a historical account of the development of Anti Defection Laws in India. It further analyses the meaning and definition of the term “Defection” and also throws light upon the instances of ‘Defections’ around the globe with special reference to the United Kingdom and gives an account of the development of the law relating to defections in India. To further expand our horizon of study to analyse the development of the Anti-Defection Laws in some of the Commonwealth countries. The various provisions under the Constitutions of these countries have been considered under Chapter III. Democracy is the Corner stone of Indian Constitution, in this aspect an analyses is made with respect to the divide created between the Party, the Elected Representative and the people in so far as curbing the power of the elected representative in voicing the views of the people in the House in the light of the conditions imposed for defection under the Tenth Schedule. To proceed in the path adopted under Chapter IV, in the succeeding chapter an attempt has been made to study the details of the various provisions under the Constitution of India relating to ‘Defections’. Provisions relating to ‘defection’ both at the Central and State levels has been analysed. It also analyses the effect of defections on the formation of

Anti-Defection Law in India- A Critical Analysis Parliament, Composition of the Council of States, Composition of the House of the People, Vacation of Seats and Disqualifications for Membership of the House is dealt under Chapter V.

After analysing the constitutional development, the judicial development with regard to the same is understood in Chapter VII. This chapter gives a detailed account of the judgment of the Hon’ble Supreme Court of India in the case of Kihota Hollohon v. Zachilhu as reported in AIR 1993 SC 412. It also gives a detailed position of law as it existed before and subsequent to Kihota Hollohon’s case. An attempt has been made in this chapter to analyse the stand point of the Judiciary on the Tenth Schedule of the Constitution of India. Certain guide lines and suggestions in order to make the Tenth Schedule more practical and effective in trying to protect the democratic polity is the conclusion to this study.

1.1 Research Problem
The problem of defection- switching loyalty from one political party to another has been haunting the Indian polity for over 30 years. Beginning in 1960s, the politics of 'Aya Ram and Gaya Ram' has reached such a level that frequent defections, splits, and the consequent governmental instability have vitiated the democratic ethos of our polity. The anti-defection law of 1985 and the latest Constitutional amendment to plug the loopholes have hardly made any impact. Rather than solving or containing the problem of defection, the law has aggravated it. Contributing to the problem of governmental instability at the centre and in many states, the law has exposed the most immoral and unethical character of our politicians making a mockery of our democracy. This research paper presents various perspectives on defections with specific reference to defection politics in India. Examining the rather usual

Anti-Defection Law in India- A Critical Analysis political behaviour of our elected representatives, it analyzes various provisions of the antidefection law and their impact. It argues that while our electoral and political systems coupled with the domestic compulsions make us different from other democracies, we certainly require a law to curb defections. Highlighting the loopholes in the existing law, the researcher intends to come out with specific suggestions for curbing the menace of defections. At this juncture the researcher has identified the following issues.
1. How the term ‘representative government’ being suppressed under the anti-defection

laws in India?
2. Whether defiance of the party whip may be regarded as ‘dissent’ or ‘defection’ in a

parliamentary democracy. 3. How do they address defecting MP’s?
4. How are the powers of the Speaker under the Tenth schedule leading to unbridled

licensing of parliamentary privileges?

1.2 Objectives of the Study
India being a country which has one of the largest number of political parties representing the interests and ideologies of various groups of people has so far been successful in its endeavour to run a successful parliamentary and democratic form of government. But, the recent developments have forced the legislature to rethink the functioning of modern democracy in the light of defections by the legislators belonging to various political parties which has resulted in government instability which is undemocratic as it negates the electoral verdict. Thus in order to maintain the true spirit of democracy it is very much necessary for the legislature to bring in such legislations as for instance the AntiDefection Laws.

Anti-Defection Law in India- A Critical Analysis The main objectives of the conducting research on this topic are:1. To ascertain and clarify the provisions relating to defection under the Constitution. 2. To examine judicial stand point on the tenth schedule. 3. To examine, the consequence of defection. 4. Impact on inner-party democracy. 5. Vote of an MP vis-a`-vis views of his/her constituency.

1.3 Hypothesis
The anti-defection laws in India though made with the most laudable idea is undemocratic in the light of Paragraph 2(1) (b) of the Tenth Schedule of the Constitution of India. The present provisions in the Constitution now disqualify legislators who switch allegiances and require them to vote as per the instructions of the party whip. It no longer matters what an individual legislator or his/her constituency thinks. It only matters what the party leadership requires him/her to think while voting. The concept of Whip may be appreciated only when the Bill or the discussion is pertaining to Money Bill or a Constitutional Amendment or such other Bills of paramount importance. Without demarcating the importance attached to the kinds of Whip and the attitude of the Legislators towards such Whips has caused serious injury to the term “representative government” under democracy.

1.4 Significance of Research
The research paper brings into forefront the need of the hour that is the real governance by the real governors. An attempt is made in this research paper to make sure that the laws governing defections are well administered in order to up hold the true spirit of

Anti-Defection Law in India- A Critical Analysis democracy. This research is better appreciated by the Election Commission, Legislators, Members of Parliament, Bureaucrats, Academicians, Advocates and Law Students and at last but the most benefitted, towards which the entire the task is devoted to, the public at large.

1.5 Method of the Study
In this study the researcher has adopted doctrinal method for collecting information of data through secondary sources like books, websites, articles, journals, judgments, and internet sources.

1.6 Chapterization
Chapter I: The first chapter gives an insight into the highlights of the study with regard to the research problem, the hypothesis, the method adopted for the conduct of the study. It further gives a brief description about the various chapters and their concerns in this study. Chapter II: The second chapter is entitled Historical Background and Conceptual Development of anti-defection laws in India. It gives a brief introduction and gives a historical account of the development of Anti Defection Laws in India. It further analyses the meaning and definition of the term “Defection” and also throws light upon the instances of ‘Defections’ around the globe with special reference to the United Kingdom and gives an account of the development of the law relating to defections in India. Chapter III: The third chapter is entitled “A Commonwealth Experience on Political Defection” the different strategies that are used to tackle the problems of defections has been discussed. This chapter also analyses the development of the Anti-Defection Laws in some of the Commonwealth countries. The various provisions under the Constitutions of these countries have been analysed.

Anti-Defection Law in India- A Critical Analysis
Chapter IV: The fourth Chapter is entitled “Anti-Defection Law and Democracy”. This chapter mainly analyses the impact of Anti Defection Law on the representative form of Government. It also analyses the divide created between the Party, the Elected Representative and the people in so far as curbing the power of the elected representative in voicing the views of the people in the House in the light of the conditions imposed for defection under the Tenth Schedule.

Chapter V: The third chapter is entitled “The Constitutional Developments and Provisions on ‘Anti Defection Law’”. It gives the details of the various provisions under the Constitution of India relating to ‘Defections’. Provisions relating to ‘defection’ both at the Central and State levels has been analysed. It also analyses the effect of defections on the formation of Parliament, Composition of the Council of States, Composition of the House of the People, Vacation of Seats and Disqualifications for Membership of the House.

Chapter VI: This chapter is entitled “Judicial development on the Tenth Schedule”. This chapter gives a detailed account of the judgment of the Hon’ble Supreme Court of India in the case of Kihota Hollohon v. Zachilhu as reported in AIR 1993 SC 412. It also gives a detailed position of law as it existed before and subsequent to Kihota Hollohon’s case. An attempt has been made in this chapter to analyse the stand point of the Judiciary on the Tenth Schedule of the Constitution of India. Chapter VII: An attempt has been made in this chapter to lay down certain guide lines and suggestions in order to make the Tenth Schedule more practical and effective in trying to protect the democratic polity. For this purpose, the views expressed by the Legislators on the Tenth Schedule under the Constitution of India have been considered.

Anti-Defection Law in India- A Critical Analysis

Anti-Defection Law in India- A Critical Analysis

Chapter II
Historical Background and Conceptual Development of anti-defection laws in India 2.1 Introduction
Democracy, as aptly defined by Abraham Lincoln, “is the Government of the people, by the people and for the people.” The will of the people is expressed through the ballot box. The ballot determines the party which would run the Government. Election is thus a vital component in a democratic system of governance. In a democracy, emergence of political parties with different and diverse ideologies is but natural. Free and fair competition amongst political parties at the hustling for wresting power to govern the country is indicative of a vibrant democracy. Political parties give concrete shape to divergent ideologies and are essential for success of any democracy. However, defections are a matter of concern for the party system. To be in power, a party or a combination of parties must have the support of majority of the members of the House. When no party commands majority, some parties agree to form a coalition Government on the basis of a broad common programme. Sometimes, political parties even form a pre-poll alliance, particularly in the era of coalition governments. It is in such a situation that defection by a few members reduces the coalition government into a minority. Defection may take place on grounds of ideology and principle or otherwise. Be that as it may, defection or changing of affiliation is a political reality in a democratic polity and more so in a parliamentary polity.

Anti-Defection Law in India- A Critical Analysis

2.2 Historical Background
Between the fourth and the fifth general elections in 1967 and 1972 from among the 4,000 odd members of the Lok Sabha and the Legislative Assemblies in the States and the Union Territories, there were nearly 2,000 cases of defection and counter-defection. By the end of March 1971 approximately 50% of the legislators had changed their party affiliations and several of them did so more than once-some of them as many as five times. One MLA was found to have defected five times to be a Minister for only five days. For some time, on an average more than one legislator was defecting each day and almost one State Government falling each month due to these changes in party affiliations by members. In the case of State Assemblies alone, as much as 50.5% of the total number of legislators changed their political affiliations at least once. The percentage would be even more alarming if such States were left out where Governments happened to be more stable and changes of political affiliations or defections from parties remained very infrequent. That the lure of office played a dominant part in this “political horse-trading” was obvious from the fact that out of 210 defecting legislators of the various States during the first year of “defection politics”, 116 were included in the Councils of Ministers in the Governments which they helped to form.1 Concerned over the malaise of political defections in national life, the Lok Sabha adopted a non-official resolution on 8 December, 1967 urging the appointment of a high level committee. In pursuance thereof, a Committee of Constitutional experts and representatives of political parties was set up in March 1968, under the Chairmanship of the then Home Minister, Y.B. Chavan to consider the problem of legislators changing their allegiance from one party to another and their frequent floor crossing, in all its aspects and to make recommendations in that regard. Informing the Lok Sabha of the appointment of the
1

Kashyap Subhash C., Anti-Defection Law and Parliamentary Privileges, Pg: 2, Ed: 2nd, Universal Law

Publishing Co. Pvt. Ltd., 2003.

Anti-Defection Law in India- A Critical Analysis Committee on 21 March, 1968, the Home Minister described defection as “a national malady” which was “eating into the very vitals of our democracy”. Legislation in pursuance of the recommendations of the Chavan Committee on Defections had a much checkered history. Several attempts proved abortive. The Government introduced a Constitution Amendment Bill in the Lok Sabha on 16 May, 1973. The Constitution Amendment Bill was referred to a Joint Committee of two houses. However, before the Committee could complete its deliberations, the Lok Sabha was dissolved and the Bill lapsed. Another Bill on the subject at the stage of introduction itself both by some ruling party members and the Opposition as certain features of the Bill did not satisfy them. After some discussion, the motion for introduction of the Bill was withdrawn by leave of the House. Immediately after the general elections held in December 1984, the President of India said in his address to both Houses of Parliament assembled together on 17 January, 1985 that the Government intended to introduce in that session a Bill to outlaw defections. In fulfilment of that assurance, the Fifty Second Amendment Bill to the Indian Constitution was introduced. As the preface to the Amendment Bill states: “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.”

Anti-Defection Law in India- A Critical Analysis The Amendment introduced provisions to ensure disqualification of a member of a House belonging to a political party if:
(a) If he has voluntarily given 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 or by any person or authority authorised 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 date of such voting or abstention.2

2.3 Etymology of the term ‘defection’
The term defection appears to have been derived, as the dictionary meaning suggests, from the Latin word ‘defectio’, indicating ‘an act of abandonment of a person or a cause to which such person is bound by reason of allegiance or duty, or to which he has will fully attached himself’. It, similarly, indicates revolt, dissent, and rebellion by a person or a party. Defection thus connotes the process of abandoning a cause or withdrawing from it or from a party or programme. It has thus an element, on the one hand, of giving up one and, on the other, an element of joining another. When the process is complete by reason of a person defecting from a cause or a party or a programme, he is termed as a defector. Defection thus is a process by which a person abandons or withdraws his allegiance or duty. Traditionally, this phenomenon is known as ‘floor crossing’ which had its origin in the British House of

2

Extracts from the Tenth Schedule of the Constitution of India

Anti-Defection Law in India- A Critical Analysis Commons where a legislator changed his allegiance when he crossed the floor and moved from the Government to the opposition side, or vice-versa.3

2.4 Rationale behind the law relating to defection
There have been cases of political defection both within and outside the Commonwealth. Therefore, efforts have been made by various Parliaments to cope with the problem with the help of legislations. Generally speaking, the rationale behind enacting an anti-defection law, providing for punitive measures against a member who defects from one party to another after election is that it is aimed at ensuring stability especially in a parliamentary form of government. The law on defection seeks to provide safety measures to protect both the government and the opposition from instability arising out of shifts of party allegiance. There are instances where governments have fallen due to defection from or split in a political party. For example, in Sri Lanka on two occasions, in 1964 and 2001, Government fell due to defection. Governments have also fallen elsewhere in the world, including in the United Kingdom where there is no anti-defection law, due to defection or split in a political party. In India also even after the anti-defection law came into operation, Governments have fallen in various States due to political defections as in the case of Goa in 1989, Sikkim in 1994 and Arunachal Pradesh in 1999 & 2003.4 These examples are only illustrative and exhaustive. In modern democracies, most of the members of the members are elected to Parliament with substantial support and help from their parties and on the basis of their party
3

Malhotra G.C, Anti Defection Law in India and the Commonwealth, Lok Sabha Secretariat, Page No. 03, 11th Malhotra G.C, Cabinet Responsibility to Legislature: Motion of confidence and No-Confidence in Lok Sabha

Edition, 2005, Metropolitan Book Co. Pvt. Ltd.
4

and State Legislatures, Pg: 187, (Delhi Metropolitan 2004).

Anti-Defection Law in India- A Critical Analysis manifestos. Constituents cast their votes in favour of contestants not only keeping in mind their mind personal qualities but also the policies and programmes of their parties. It is, therefore, argued that a successful candidate is bound by the pledges made by his party during the electioneering. He is expected to remain loyal to his party and abide by the party discipline. If he chooses to leave the party, he must lose his membership too. This logic could be put forward equally forcefully in the case of the countries having the system of proportional representation in which parties play a crucial role in getting their members elected. Anti-defection law should be an essential component of such a system to ensure that the results of an election are not adversely affected by defecting members who gained their seats in the legislature solely because of their position on the party list. On the other hand there is also a school of thought who holds the view that the antidefection laws tend to restrict the freedom of Members of Parliament in the performance of their duties and interference with the member’s right to freedom of speech and expression. In view of the above, it may not be out of place to mention here that while stability of the government is important, equally desirable is its accountability to the House which consists of members who in turn are accountable not only to their political parties but also to the electorate.

2.5 Defections around the globe:
The phenomenon of defection was not something altogether unknown to the older democracies like Great Britain. Political stalwarts like William Gladstone, Joseph Chamberlain, Winston Churchill and Ramsay McDonald were known to have changed their party allegiance at one time or another-some of them even more than once. Likewise in Australia, Canada and the USA, there had been instances of politicians defecting from one party to another. It is, however interesting that the need or the desirability of banning

Anti-Defection Law in India- A Critical Analysis defections by law or through a constitutional provision was not considered in any of the western democracies. The only countries to pass anti-defection laws have been four countries, viz. India (1985), Pakistan (1997), Sri Lanka (1978) and Nepal (1997). In all the four countries, the anti defection laws proved ineffective. In India, the result was a larger number of defections, with groups instead of individuals defecting. In Nepal also, group defections and toppling of governments could not be prevented. In Pakistan, the operation of law was stayed by the court and subsequently democracy itself was toppled by military dictatorship.5

2.6 Special Reference to United Kingdom:
It may be mentioned in this connection that in the early stages of their parliamentary struggles for political power in the United Kingdom, members resorted to defections frequently and even in large numbers. William Gladstone, regarded as the “grand old man” of British liberalism, began his Parliamentary career as an Conservative Member when he was elected to Parliament in December 1832. During Peel’s second Ministry (1841-46), he crossed over to the Liberal side and was made Vice- President of the Board and later Secretary of State for the Colonies. In 1886, there was a mass defection from the Liberal Party. Joseph Chamberlain was strongly opposed to the Irish Home Rule Bill and crossed the floor along with 93 other Liberal and Whig MP’s. The defectors formed an independent group called the Liberal Unionists, but they voted with the Conservatives. The Home Rule Bill was defeated at the second reading stage and the Gladstone Ministry had to resign.6 Winston Churchill’s political career was marked by repeated floor crossing. Churchill began his Parliamentary life as a Conservative. In 1904 he defected from the Conservative Party and

5 6

Kashyap Subhas C., “The Politics of Power”, 1974 Austin Mitchell, “The Whig in Opposition 1815-1830 (1967); also see Diwan Paras, ‘Aya Ram Gaya Ram:

The Politics of Defection’ (1979) 21 JILI 291, Sharma Mool Chand, “Politics of Defections and Democracy” (1979) 13 J.C.P.S. 328

Anti-Defection Law in India- A Critical Analysis crossed over to the Liberal Party. From 1904 to 1922, Churchill remained a Liberal. In 1922, he contested the Election as a “Lloyd George Liberal”.7

2.7 Anti Defection Law – Indian context
Indian politics has seen defection right from the pre-independence Central Legislative Assembly and Provincial autonomy days. The year 1967 however ushered in an unprecedented era of political instability and horse-trading preceding and following the formation of coalition governments in several States. The formation of such coalition governments was most often a marriage of convenience. They were constituted of heterogeneous elements—political parties coming together to share power often having no ideological similarity. Several State Governments fell like the proverbial nine pins in quick succession. The fall was usually brought about by dissatisfied and disgruntled legislators who, it was widely believed, could not be accommodated as Ministers and the like or otherwise lucratively recompensed. They changed their party affiliations and were welcomed with open arms by other political parties which, though in minority, cherished the dream of forming a Government on the strength of such synthetic majority. This gave rise to a very unhealthy trend whereby legislators were lured away from their political parties with a view to toppling the existing Governments and forming new ones with different permutation and combinations.8 "I would go to the length of giving the whole congress a decent burial, rather than put up with the corruption that is rampant." --Mahatma Gandhi May 1939
7

Malhotra G.C, Anti Defection Law in India and the Commonwealth, Lok Sabha Secretariat, Page No. 03, 11th

Edition, 2005, Metropolitan Book Co. Pvt. Ltd; See also Sudershan Aggarwal, The Anti Defection Law in India, Parliamentarian, January 1986, LXVII No. 1, Page 22.
8

ibid

Anti-Defection Law in India- A Critical Analysis This was the outburst of Mahatma Gandhi against rampant corruption in Congress ministries formed under 1935 Act in six states in the year 1937. The disciples of Gandhi however, ignored his concern over corruption in post-Independence India, when they came to power. Over fifty years of democratic rule has made the people so immune to corruption that they have learnt how to live with the system even though the cancerous growth of this malady may finally kill it. Politicians are fully aware of the corruption and nepotism as the main reasons behind the fall of Roman Empire, the French Revolution, October Revolution in Russia, fall of Chiang Kai-Shek Government on the mainland of China and even the defeat of the mighty Congress party in India. But they are not ready to take any lesson from the pages of history. The history of corruption in post-Independence India starts with the Jeep scandal in 1948, when a transaction concerning purchase of jeeps for the army needed for Kashmir operation was entered into by V.K.Krishna Menon, the then High Commissioner for India in London with a foreign firm without observing normal procedure. Contrary to the demand of the opposition for judicial inquiry as suggested by the Inquiry Committee led by Ananthsayanam Ayyangar, the then Government announced on September 30, 1955 that the Jeep scandal case was closed. Union Minister G.B.Pant declared "that as far as Government was concerned it has made up its mind to close the matter. If the opposition was not satisfied they can make it an election issue.” Soon after on February 3, 1956 Krishna Menon was inducted into the Nehru cabinet as minister without portfolio. In 1950, A.D.Gorwala, an eminent civil servant was asked by Government of India to recommend improvements in the system of governance. In his report submitted in 1951 he made two observations: “One, quite a few of Nehru's ministers were corrupt and this was common knowledge. Two, even a highly responsible civil servant in an official report as

Anti-Defection Law in India- A Critical Analysis early as 1951 maintained that the Government went out of its way to shield its ministers” (Report on Public Administration, Planning Commission, Government of India 1951) Corruption charges in cases like Mudgal case (1951), Mundra deals (1957-58), Malaviya-Sirajuddin scandal (1963), and Pratap Singh Kairon case (1963) were levelled against the Congress ministers and Chief Ministers but no Prime Minister resigned. The Santhanam Committee, which was appointed by the Government in 1962 to examine the issue of corruption in its report submitted in 1964 observed: “There is widespread impression that failure of integrity is not uncommon among ministers and that some ministers, who have held office during the last sixteen years have enriched themselves illegitimately, obtained good jobs for their sons and relations through nepotism and have reaped other advantages inconsistent with any notion of purity in public life.” The following comments of Nehru on the memorandum of charges against Pratap Singh Kairon submitted to the President of India by the non-Communist opposition in Punjab suggest his approach on corruption - “The question thus arises as to whether the chief minister is compelled to resign because of adverse findings on some questions of fact by Supreme Court. The ministers are collectively responsible to the legislature. Therefore, the matter was one, which concerned the assembly. As a rule therefore, the question of removing a minister would not arise unless the legislature expressed its wish by a majority vote.” Thus, we find that while Nehru’s tolerance of corruption among his ministers legitimized this malady, his daughter Indira Gandhi institutionalized it by holding both the posts of the Prime Minister and party president. By doing so she was herself controlling the party funds, which gave birth to the money power in politics. The famous V.P.Malhotra (Chief Cashier of State Bank of India) case in which he got a telephone call believing from

Anti-Defection Law in India- A Critical Analysis Indira Gandhi to pay Rs,60 lakhs to one Nagarwal remained a mystery. Corruption cases like Fairfax, HBJ Pipeline, and HDW Submarine deal came up since then. The famous Bofor’s deal is well known. Narsimha Rao was the first Prime Minister being prosecuted in corruption charges. Cases like Rs.2500 crore -Airbus A-320 deal with France involving kickback (1990), Harshad Mehta security scam (1992), Gold Star Steel and Alloys controversy (1992), JMM bribery case, Hawala scam of Rs. 65 crore and Urea scam (1996) also came up during the period of Narsimha Rao Government. Corruption is an abstract term. According to World Bank report 1997 abuse of public power for private gains is described as corruption. But this appears to be too simplistic explanation of corruption. In fact it is a multi-faceted evil, which gradually kills a system. A basic conflict between the ethos and system has weakened the Indian polity. The feudal outlook of the ruling class polluted the people’s mindset, which judge the status of an individual on his capability to flout the law to favour them. This is the reason why corruption is no more viewed by people with abhorrence in Indian society. Leaders like Laloo, Jayalalitha, Sukhram and others, who are facing corruption charges, continue to have wide range of people’s support. Transparency, responsiveness, accountability, probity in public life and good governance are now only slogans. The legislature has failed to make the judiciary, executive and even media sensitive to the cause of the common people. The failure of the political leadership to take a principled stand against corruption has clouded the system to the extent that it is now difficult to understand whether the system is alive or dead. The collapse of the Janata Party Government (1977-80), fall of V.P.Singh and Chandrashekhar Government (1990-91), turning his minority Government into majority by Narsimha Rao, split in Telugu Desam Party (1994), defection of Ajit Singh with his supporters to Congress (1993), defection of S.S.Vaghela from BJP, manoeuvring defection

Anti-Defection Law in India- A Critical Analysis by Kalyan Singh to keep the BJP led Government in power in UP are some of examples to prove that a sizeable number of our politicians are not immune to corruption. In the present context, corruption is so much linked with power that our politicians have adopted a cynical attitude toward political morality. Manoeuvring the anti-defection law for electoral politics with the help of both money and muscle power and other unfair means for the sake of power have affected the political morality of all the political parties and as such none of them can claim themselves to be faithful to nation in true sense. It is in this background that the laws relating to defection was enacted in the Tenth Schedule.

2.8 Conclusion:
Defections and splits in parties have always been a feature of Indian Politics. Every time the National Parliament or State Legislatures return a less-than-certain outcome, out come the "suitcases" and allegations of horse trading drown out every other public discourse. In the mad circus that follows, parties spirit their legislators away, hide them, suborn them, and then triumphantly parade them before the world.

Anti-Defection Law in India- A Critical Analysis

Chapter III A Commonwealth Experience on Political Defections
3.1 Introduction
The phenomenon of defection or shifting party allegiance by legislators is known be different nomenclatures- such as ‘floor-crossing’, ‘carpet-crossing’, ‘party-hopping’, ‘dispute’ and ‘waka-jumping’- in different parts of the Commonwealth. In some countries defections are a non-issue and not perceived as a problem, whereas in some other countries, they have at times threatened the very stability of the government. Naturally, therefore, while some countries deal with defections with the help of well-established customs, conventions and parliamentary practices and procedures, others have framed laws and rules to tackle the problem. The evolution of any law can be traced out by two ways either by means of looking back into the history of the one’s own nation as to factors that gave rise to the preposition of the law as it stands today or by making a comparative analysis of different nations legal system to whose legal system it resembles. These are the path findings left for any researcher in order to ascertain the developments of law in a particular aspect. With regard to the matter in issue, the researcher has adopted both the means that is digging into the past and taking an out look at the position of law for defection around the globe having parliamentary form of government. The first aspect of historical background and factors that led to the growth of anti-defection laws in India has been elaborately

Anti-Defection Law in India- A Critical Analysis discussed in the previous chapter, while a sincere attempt has been made in the following chapter to bring in the practice that prevails in the other commonwealth nations. The purpose of this analysis is that by adopting a study on the position of different parliamentary practices has a close nexus with the subject matter under discussion; this can be well understood by drawing an analogy with the term “commonwealth”. At the outset the term ‘commonwealth’ means ‘countries that were the colonies of the Great British Empire’. This being the meaning attached to the term, it cannot be negated that the lex loci of these nations have nexus with or influence of English law. India being one of the biggest prides among the various diamonds in the British Empire Crown is definitely influenced by English legal system. It is at this juncture that the comparative analysis of various commonwealth nations having parliamentary forms of government is of paramount importance. This being the scenario let us begin the discussion on the various commonwealth nations and their take on anti-defection laws.

3.2 Handling Defections without Legislation
Foremost among the 17 Parliaments having no law to deal with defections is the Mother of Parliaments itself. In the United Kingdom there is no bar on members changing their party affiliations. A member who defects is not required to resign. Seating in the House of Commons is governed by conventions and not rules, but a member who has defected would normally sit separately from party members. In the Australian Parliament as well, there are no laws or rules governing defections, other than internal party arrangements. Similar is the case of the Parliament of Canada, where there is no prohibition- legal or constitutional- against the practise of crossing the floor. The member’s entitlement to sit as a member in the House is not contingent upon his political affiliation. The Whip makes

Anti-Defection Law in India- A Critical Analysis changes in the seating of a member or members within a party and notifies the Speaker. Where a member decides to cross the floor and sits with another party, his new party Whip determines the seating arrangement for him. In Barbados, there is no anti-defection law though there are cases of defection. However, there is a consensus that if a member defects, his seat should be declared vacant thereby paving the way for a by-election. In Malaysia also, there is no law regulating defections, though there have been cases of defection and there has been a demand to enact legislation in this regard. In fact, there was a Private Member’s Bill in 1978 to check defection of elected representatives by requiring a member of parliament to vacate his seat within 30 days on his resignation or expulsion from the party on whose ticket he was originally elected. The peculiarity of the Parliament of Nauru is that it has no cohesive force in the form of political parties. The members are elected on the basis of adult suffrage and are free to act according to their conscience. Once elected they become members either of the ruling group called ‘caucus’ or the opposition called ‘backbenchers’. This being so, the Parliament of Nauru has not faced the problem of defection in the true sense of the term. Here the problem is such that members of the ‘caucus’ often shift their allegiance to backbenchers to form coalitions and bring down the government of the day by moving No-confidence Motion as provided in article 24(1) of the Constitution of Nauru. Apart from these, there are Parliaments like Anguilla, Bermuda, Botswana, Cameroon, Cyprus, Dominica, Grenada, Jamaica, Namibia, Seychelles and Tuvalu where there are no laws or rules to deal with the cases of defection.

Anti-Defection Law in India- A Critical Analysis

3.3 Anti-Defection Legislations in the Commonwealth
Turning to the countries, which have enacted legislations or framed rules to deal with defections, an attempt has been made in the following paragraphs to give information in brief under certain parameters and thereby elucidate the position prevalent in different countries comparatively. The position in India is taken as a reference point to facilitate a comparison.

3.3.1Voluntarily giving up membership of the party
The anti-defection law in India inter alia provides that an elected Member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party, would be disqualified for being a member of the House, on the ground of defection if he voluntarily gives up his membership of such political party. The law on the subject passed by Bangladesh Parliament, in 1980, provides inter alia that a Member of Parliament shall vacate his seat if he resigns from the political party on whose ticket he contested that election. In Belize, the law, which came into force in January 2001, provides that a person ceases to be a member by reason of crossing the floor. In Ghana, Art 97(1) (g) of the Constitution9 inter alia provides that a Member of Parliament shall vacate his seat in Parliament if he leaves the party of which he was a member at the time of his election to Parliament, to join another party or remains in Parliament as an independent member.
9

Constitution of Ghana Article 97: (Chapter X Composition of Parliament)

(g) if he leaves the party of which he was a member at the time of his election to Parliament to join another party or seeks to remain in Parliament as an independent member; Source: http://www.ghanaweb.com/GhanaHomePage/republic/constitution, Last visited on: 16/02/2010

Anti-Defection Law in India- A Critical Analysis In Guyana, which as a system of proportional representation, a Constitution Amendment Act was brought about in the year 2000 providing for disqualification of those members who declare that they would not support the list from which their names were extracted, or abstain from supporting the list or declare support for another list. In Kenya, if a member of the National Assembly resigns from the Parliamentary Party he belongs to, he shall vacate his seat forthwith, unless in the meantime that party has ceased to exist as a Parliamentary Party or he has resigned his seat. In Lesotho, an amendment to the Electoral Act provides for disqualification of proportional representation members if he crosses the floor or resigns from the party, which had supported his candidature. However, the law is not applicable to the members having constituency seats. In Malawi10, the practice is that the speaker declares vacant the seats of those members who have voluntarily ceased the membership of their party or joined another party or association or organisation whose activities are political in nature. The Parliament of Mozambique has a law, i.e. law 2/95 of 8 May 1995, to prevent the phenomenon of defection. Under the law, a Deputy loses his seat when during that particular Legislature, he becomes

10

Section 65 of the Constitution of Malawi: (Chapter VI The Legislature)

65(1) The Speaker shall declare vacant the seat of any member of the National Assembly who was, at the time of his or her election, a member of one political party represented in the National Assembly, other than by that member alone but who has voluntarily ceased to be a member of that party and has joined another political party represented in the National Assembly. (2) Notwithstanding subsection (1), all members of all parties shall have the absolute right to exercise a free vote in any and all proceedings of the National Assembly, and a member shall not have his or her seat declared vacant solely on account of his or her voting in contradiction to the recommendations of a political party, represented in the National Assembly, of which he or she is a member. Source: http://www.sdnp.org.mw/constitut/dtlindx.html, Last visited on: 16/02/2010

Anti-Defection Law in India- A Critical Analysis member or carries out duties of another party, other than the party through which he was elected. In New Zealand, where floor-crossing is called ‘Waka-jumping’, after the election and formation of a coalition Government in 1999, the Electoral (Integrity) Amendment Act 2001 was passed, which came into force on 22 December 2001. The law inter alia provides that a member’s seat in Parliament falls vacant if he ceases to be a Parliamentary member of the political party for which he was elected11. It is a temporary law and will automatically expire at the time of general election due in 2005.
11

Section 55 A of the New Zealand Electoral (Integrity) Amendment Act 2001 Member ceasing to be

parliamentary member of Political Party “(1) this section applies to every Member of Parliament, except a member elected as an independent. “(2) The seat of a member of Parliament to whom this section applies becomes vacant if the Member of Parliament ceases to be a parliamentary member of the political party for which the Member of Parliament was elected. “(3) For the purposes of subsection (2), a member of Parliament ceases to be a parliamentary member of the political party for which the member of Parliament was elected if, and only if,— “(a) the member of Parliament delivers to the Speaker a written notice that complies with section 55B; or “(b) the parliamentary leader of the political party for which the member of Parliament was elected delivers to the Speaker a written notice that complies with section 55C. New section 55A applies to all members of Parliament other than members who were elected as independent members. The seat of a Member of Parliament to whom this section applies becomes vacant if the member ceases to be a parliamentary member of the political party for which the member was elected. A member ceases to be a parliamentary member of the political party for which the member was elected if, and only if,— • the member delivers to the Speaker a written notice that complies with new section 55B (which is a notice indicating that the member has resigned from parliamentary membership of the political party to which he or she was elected or wishes to be recognised for parliamentary purposes as either an independent member of Parliament or a member of another political party); or • the parliamentary leader of the political party for which the member of Parliament was elected delivers to the Speaker a written notice that complies with new section 55C. Source: http://www.legislation.govt.nz Last visited on: 18/02/2010

Anti-Defection Law in India- A Critical Analysis In Nigeria, defection is known as “carpet-crossing”. A member of the Senate or the House of Representatives shall vacate his seat if being a person whose election to the House was sponsored by a political party; he joins another party before the expiration of the period for which that House is elected12. The Constitution of Sierra Leone13 provides that a Member of Parliament shall vacate his seat in Parliament if he ceases to be a member of the political party for which he was a member at the time of his election to Parliament. The Constitution of the Republic of Singapore under Art 46(2) (b) provides that the seat of a member shall become vacant if he ceases to be a member of, or is expelled or resigns from the political party for which he stood in the election14.
12

Section 68(1)(g) of the Constitution of The Federal Republic of Nigeria 1999 {Chapter V The

Legislature C - Qualifications for Membership of National Assembly and Right of Attendance} 68. (1) A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if (g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected; Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored; Source: http://www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.html Last visited on 15/02/2010
13

THE CONSTITUTION OF SIERRA LEONE, 1991 (Act No. 6 of 1991) Chapter VI – Part 1

Section 77: Tenure of Seats of Members of Parliament (1) A Member of Parliament shall vacate his seat in Parliament— (k) if he ceases to be a member of the political party of which he was a member at the time of his election to Parliament and he so informs the Speaker, or the Speaker is so informed by the Leader of that political party; Source: http://www.sierra-leone.org/Laws/constitution1991 Last visited on 15/02/2010

14

CONSTITUTION OF THE REPUBLIC OF SINGAPORE, 1965

Part VI

Anti-Defection Law in India- A Critical Analysis In Papua New Guinea, an anti-defection legislation called the Integrity of Political Parties and Candidates Law which came into force for the 2002 election restricts the freedom of politicians to change party affiliation. The law also envisages penalties if members of the Legislature leave their party, with which they were aligned when first elected and join another party or become independent. If the member changes the party, he is required to face the ‘leadership tribunal’ (the Ombudsman Commission), which decides whether the grounds for resignation are valid. Under the law, valid resignation is possible when the Party has breached its own constitution or when it has been declared insolvent. If the tribunal rules against the member, a by-election must be held.15
Article 46 — (2) The seat of a Member of Parliament shall become vacant — (b) if he ceases to be a member of, or is expelled or resigns from, the political party for which he stood in the election; Source: http://statutes.agc.gov.sg Last visited on: 16/02/2010
15

INDEPENDENT STATE OF PAPUA NEW GUINEA

PART 5. – STRENGTHENING OF POLITICAL PARTIES. Division 5. Defection from Political Party and Voting Restriction Article 65. DEFECTION FROM OR VOTING AGAINST A REGISTERED POLITICAL PARTY (1) A Member of the Parliament, who was an endorsed candidate of a registered political party at the election at which he was elected to the Parliament, shall, during the term of the Parliament for which he was elected – (a) not withdraw or resign from that registered political party except in accordance with Division 2; and Conti..... (b) subject to Section 60(2)(d) or Section 60(3)(a), not join another registered political party; and (c) subject to Subsection (2), vote only in accordance with a resolution of that registered political party as determined by the member of that registered political party who are Member of the Parliament is the following only: – (i) a motion of no-confidence brought against the Prime Minister, the Ministry or a Minister under Section 145 (motion of no confidence) of the Constitution; and (ii) a vote for the election of a Prime Minister under Section 142 (The Prime Minister) of the Constitution; and

Anti-Defection Law in India- A Critical Analysis In Pakistan also, anti-defection law is in existence and there have been instances of political defections. The Constitution of Pakistan vide Art 63A lays down the grounds of defection on which a member of parliamentary party in a House is disqualified. These, inter alia, are if he resigns from membership of his political party or joins another parliamentary party.16

(iii) a vote for the approval of the National Budget; and (iv) a vote to enact, amend or repeal a Constitutional Law. (2) A member of the Parliament who is a member of a registered political party may abstain from voting in cases referred to in Subsection (1)(c). 66. VOTE CONTRARY TO PROVISIONS OF SECTION 65(1)(C) NOT TO BE COUNTED. The vote of a Member of the Parliament contrary to the provisions of Section 65(1)(c) shall not be counted. 67. DEEMED RESIGNATION FROM OFFICE. Where a member of the Parliament contravenes Section 65(1) – (a) he is deemed to have resigned from the registered political party of which he was a member; and (b) the Speaker shall give notification of the matter to the Registrar; and (c) the Registrar shall refer the matter to the Ombudsman Commission; and (d) the matter shall proceed under Section 59(4), Sections 60 and 61 as if the resignation were a resignation under Section 58. 68. OTHER PENALTIES FOR CONTRAVENTION OF SECTION 65. A Member of the Parliament who contravenes Section 65, but to whom Section 60 applies – (a) shall refund to the registered political party all campaign and other expenses received from the registered political party in supporting him at the election; and (b) Shall not be appointed as a Prime Minister, Minister, Vice-Minister or Chairman or Deputy Chairman of a Committee of the Parliament for the remainder of the life of the Parliament. Source: http://www.paclii.org/pg/legis/consol_act/olotioppac2003542/ Last visited on 16/02/2010

Anti-Defection Law in India- A Critical Analysis In Samoa, the Electoral Amendment Act 2005 which came into force on 1 April 2005 amended Part IIA of the Principal Act by inserting Section 15F, which inter alia provides that a candidate elected as a member, where that ballot paper for such election cites the candidate’s membership of a political party, shall sit in the Legislative Assembly as a member of that political party during the term for which the candidate was so elected. Where the ballot paper for such election cites the candidate’s membership of a political party and

16

The Constitution of the Islamic Republic of Pakistan

PART III The Federation of Pakistan Chapter 2: THE MAJLIS-E-SHOORA (Parliament) 63A. Disqualification on grounds of defection, etc. (1)If a member of a Parliamentary Party composed of a single political party in a House(a) resigns from membership of his political party or joins another Parliamentary Party; or (b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relations to(i) election of the Prime Minister or the Chief Minister; or (ii) a vote of confidence or a vote of no-confidence; or (iii) a Money Bill; he may be declared in writing by the Head of the Parliamentary Party to have defected from the political party, and the Head of the Parliamentary Party may forward a copy of the declaration to the Presiding Officer, and shall similarly forward a copy thereof to the member concerned: Provided that before making the declaration, the Head of the Parliamentary Party shall provide such member with an opportunity to show cause as to why such declaration may not be made against him. (2) A member of a House shall be deemed to be a member of a Parliamentary Party if he having been elected as a candidate or nominee of a political party which constitutes the Parliamentary Party in the House or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such Parliamentary Party after such election by means of a declaration in writing. (3) Upon receipt of the declaration under clause (1), the Presiding Officer of the House shall within two days refer the declaration to the Chief Election Commissioner who shall lay the declaration before the Election

Anti-Defection Law in India- A Critical Analysis upon election, but prior to taking the oath of allegiance, it appears that such political party does not have sufficient membership to be recognized as a political party in the Legislative assembly, under Standing Orders, the candidate, may, prior to taking the oath of allegiance, join another political party or become an independent in the manner provided by Standing Order and thereafter the elected candidate shall sit in the Legislative Assembly as a member of such other political party or as an independent, as the case may require, during the term for which the candidate was so elected. However, if a candidate resigns subsequently from such political party and becomes a member of another political party during the term for which the candidate was so elected, the seat of such candidate as a Member of Parliament shall become vacant and such candidate shall be disqualified from holding such seat.

Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner Conti..... (4) Where the Election Commission confirms the declaration, the member referred to in clause (1) shall cease to be a member of the House and his seat shall become vacant. (5) Any party aggrieved by the decision of the Election Commission may within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within three months from the date of the filing of the appeal. (6) Nothing contained in this Article shall apply to the Chairman or Speaker of a House. (7) For the purpose of this Article(a) "House" means the National Assembly or the Senate in relation to the Federation and a Provincial Assembly in relation to the Province, as the case may be. (b) "Presiding Officer" means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.

Anti-Defection Law in India- A Critical Analysis In South Africa, S.47 of the Constitution 17, as amended by Act No. 2 of 2003 provides inter alia that a person loses membership of the National Assembly if he ceases to be a member of the party that nominated him as a member of the Assembly, unless that member has become a member of another party in accordance with Schedule 6A. Similarly, S.106 as amended provides inter alia that a person loses membership of Provincial Legislature if he ceases to be a member of the party that nominated him as a member of the Legislature, unless that member has become a member of another party in accordance with Schedule 6A. Schedule 6A inter alia lays down a mechanism of window period which provides for retention of membership of National Assembly or Provincial Legislature after a change of party membership, merger between parties, subdivision of parties and subdivision and merger of parties. In terms of legislation, the time of 15 day window periods are from the first to the fifteenth day of September in the second year following the date of an election of the legislature and from the first to the fifteenth day of September in the fourth year following the date of an election of the legislature. The Act also made a provision for the members to change their party allegiance during the first 15 days immediately following the date of commencement of the Act.
17

South Africa Constitution of the Republic of South Africa, 1996, Government Gazette Vol. 523 Cape

Town Constitution Fourteenth Amendment Act of 2008. which came into effect on 9th January 2009 Chapter 4 – Parliament Section 47(3) A person loses membership of the National Assembly if that person a. ceases to be eligible; b. is absent from the Assembly without permission in circumstances for which the rules and orders of the Assembly prescribe loss of membership; or c. ceases to be a member of the party that nominated that person as a member of the Assembly. Source: http://www.info.gov.za/documents/constitution/1996/96cons6.htm#106 Last visited on 13/10/2010

Anti-Defection Law in India- A Critical Analysis It must, however, be noted that in order to retain the membership of the Legislature in the event of change of party membership, merger, subdivision and subdivision & merger of parties, a member of a legislature who becomes a member of a party (the new party) other than the party which nominated that person as a member (the nominating party), whether the new party participated in an election or not, remains a member of that legislature if that member, whether by himself or herself or together with one or more other members who, during the window period ceased to be members of the nominating party, represents not less than 10% of the total number of seats held by the nominating party in that legislature. In Sri Lanka, under Art 99(13) of the Constitution, a member who ceases to be a member of his political party or independent group by way of resignation, expulsion or otherwise, loses his seat in the Legislature upon the expiration of a period of one month from the date of his ceasing to be such member.18

18

THE CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA, 1977

CHAPTER XIV - THE FRANCHISE AND ELECTIONS Original Article 99 repealed and replaced by the Fourteenth Amendment to the Constitution, Sec (7). Section 99 (13) Proportional Representation: (13) (a) Where a Member of Parliament ceases, by resignation, expulsion or otherwise, to be a member of a recognized political party or independent group on whose nomination paper (hereinafter referred to as the "relevant nomination paper") his name appeared at the time of his becoming such Member of Parliament, his seat shall become vacant upon the expiration of a period of one month from the date of his ceasing to be such member : Conti.... Provided that in the case of the expulsion of a Member of Parliament his seat shall not become vacant if prior to the expiration of the said period of one month he applies to the Supreme Court by petition in writing, and the Supreme Court upon such application determines that such expulsion was invalid. Such petition shall be inquired into by three Judges of the Supreme Court who shall make their determination within two months of the filing of such petition. Where the Supreme Court determines that the expulsion was valid the vacancy shall occur from the date of such determination.

Anti-Defection Law in India- A Critical Analysis Under the Constitution of Tanzania, 1977, Art 71(1) (e) provides that a member of the National Assembly shall cease to be a member and shall vacate his seat in the National Assembly if he ceases to be a member of that political party to which he belonged when he was elected or appointed as Member of Parliament. In Trinidad and Tobago, as per section 49A(1) of the Constitution, where a member resigns from or is expelled by a political party, the Leader of the concerned party in the House of Representatives is required to inform the Speaker about the same in writing. After being so informed, the Speaker at the next sitting of the House makes a declaration about the resignation/expulsion within 14 days. If he does not do so, he shall vacate his seat at the end of the said period of 14 days. If within the stipulated period, the concerned member institutes legal proceedings, he is not required to vacate his seat until the proceedings institutes by him are withdrawn or the question has been finally determined by a decision upholding the resignation or expulsion. However, the Standing Orders of the House of Representatives had not been amended to give effect to section of the Constitution till April 2002. In Uganda, Art 83(1) (g) of the Constitution provides that any Member of Parliament who leaves the political party of which he stood as a candidate for election to Parliament and joins another party or remains in Parliament, as an independent member shall vacate his seat. In the Zambian Parliament also a member of the National Assembly who becomes a member

(b) Where the seat of a Member of Parliament becomes vacant as provided in Article 66 (other than paragraph (g) of that Article) or by virtue of the preceding provisions of this paragraph the candidate from the relevant recognized political party or independent group who has secured the next highest number of preferences shall be declared elected to fill such vacancy. Source: http://www.priu.gov.lk/Cons/1978Constitution/html Last visited on 14/02/2010

Anti-Defection Law in India- A Critical Analysis of a political party other than the party of which he was an authorised candidate when he was elected to the National Assembly loses his seat in the Parliament. In Zimbabwe if a member, elected from one of the 120 common roll constituencies, ceases to belong to his political party and the party writes to the Speaker declaring that they have since parted ways with the members, the member ceases to be the member of the Legislature.19

3.3.2 Violating Party Directions/Whip
A Member of Parliament or a State Legislature in India also comes under the rigour of anti-defection law if he votes or abstains from voting in the House contrary to any direction issued by the political party to which he belongs or by any person or authority 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, person or authority within fifteen days from the date of such voting or abstention. Similarly, in Bangladesh the Constitution provides that a Member of Parliament shall vacate his seat if he votes in Parliament against the party.

19

THE CONSTITUTION OF ZIMBABWE

CHAPTER V PART 4- General Matters Relating to Parliament Article 41 Tenure of seats of members (1) Subject to the provisions of this section, the seat of a member of Parliament shall become vacant only— (e) if, being a member referred to in section 38(1)(a) and having ceased to be a member of the political party of which he was a member at the date of his election to Parliament, the political party concerned, by written notice to the Speaker, declares that he has ceased to represent its interests in Parliament; Source: http:// www.chr.up.ac.za/hr_docs/constitutions/docs/Zimbabwe Last visited on: 13/02/2010

Anti-Defection Law in India- A Critical Analysis The defection law as confined in Art 63A of the Constitution of Pakistan 20 inter alia provides that a Member of Parliamentary party in the House will be disqualified if he votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs in relation to election of the Prime Minister or the Chief Minister, a Vote of Confidence or a Vote of No-Confidence or a Money Bill. In Papua New Guinea, the anti-defection law envisages that Members of Parliament elected with party endorsement must vote in accordance with their party’s position on key issues including the election of a Prime Minister, the Budget, votes of no-confidence and Constitutional Amendments. In Sierra Leone, a member is required to vacate his seat for sitting and voting with members of a different party. Interesting, in Malawi, Section65(2) of the Constitution provides that all members of parties shall have absolute right to exercise a free vote in any and all proceedings of National Assembly and a member shall not have his seat declared vacant solely on account of his voting in contradiction to the recommendations of his political party in the National Assembly.

3.3.3 Splits/Merger
In India, the anti-defection law as contained in the Constitution (Fifty-Second Amendment) Act, 1985 provided that no disqualification would be incurred in cases where split in a party or merger of a party with another was claimed provided that in the event of a split in the Legislature Party not less than one-third of its members decided to quit the party and in the case of a merger the decision was supported by not less than two-thirds of the members of the Legislature party concerned.

3.3.4 Split Provision Deleted in India
20

Supra

Anti-Defection Law in India- A Critical Analysis The provision relating to split was severely criticised in India on the ground that while individual defection was punished, collective defection was condoned. Therefore, the provision relating to split has been deleted by the Constitution (Ninety-first Amendment) Act 2003. In Bangladesh, there is no specific provision for splits and mergers in the Constitution or in any law or Rules of Procedure. In Ghana, a merger of parties at the national level sanctioned by the Constitution or membership of a coalition government of which his original party forms part shall not affect the status of a Member of Parliament. In Nigeria, exemption is given in cases of splits and mergers. However, there is no prescribed number as to what constitutes a split or a merger. In Sierra Leone, both collective as well as individual defections are penalized. In South Africa, as mentioned earlier, following the laid down conditions and procedure, a party could merge, sub-divide or sub-divide and merge only once by written notification to the Speaker during the 15-day window period. In Belize, Guyana, New Zealand, Sri Lanka, Trinidad and Tobago, there are no legal provisions for splits and mergers. In Mozambique, the law does not formally recognize splits amounts to a change in party affiliation and is dealt with as such under the provision of law. In Zimbabwe, no exemption is given in cases of splits and mergers.

3.3.5 Independent and Nominated Members
One more important dimension of anti-defection law is with regard to the status of independent and nominated members in the event of their joining a political party. In India an

Anti-Defection Law in India- A Critical Analysis independent Member of Parliament or a State Legislature is disqualified if he joins any political party after his election. A nominated Member of Parliament or a State Legislature who is not a member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months from the date on which he takes his seat in the House, is disqualified if he joins any political party after the expiry of the said period of six months. In Bangladesh, if a person after being elected as a Member of Parliament as an independent candidate joins any political party, he is deemed to have been elected as a nominee of that party. There is no provision for nominated members in Bangladesh Parliament. In Ghana and Sierra Leone also a Member of Parliament shall vacate his seat in Parliament if he was elected as an independent candidate and joins a political party. In Belize and Guyana, there are no provisions in respect of independent and nominated members. In Mozambique if a Deputy resigns or is expelled from his party or parliamentary bench and he remains not affiliated to another party, he becomes an independent. In Lesotho, Malawi and New Zealand, independent members would not lose their seats if they join any political party after election. In Papua New Guinea, a member shall vacate his seat in Parliament if having been elected as an independent candidate, he joins a political party. In Kenya, a member of the National Assembly having accepted appointment as a nominated member of a political party shall vacate his seat. In Samao, a candidate elected as a member, where the ballot paper for such election cites the candidates as independent (meaning the candidate is not a member of political party at the time of election), may, prior to taking the oath of allegiance, join a political party in the manner provided by the Standing Orders and thereafter such elected candidate shall sit in the Legislative Assembly as a member of that political party during the term for which the candidates was so

Anti-Defection Law in India- A Critical Analysis elected. In Singapore also, a nominated member’s seat becomes vacant if the member stands as a candidate for any political party in an election or if he is elected as a Member of Parliament for any constituency. In Sri Lanka, independent candidates cannot contest individually. But they can contest under the symbol of an independent group and they would be subject to the provisions of anti-defection law. In Trinidad and Tobago there are no provisions with respect to independent or nominated members. In Uganda, any Member of Parliament who leaves the political party to which he stood as a candidate for election to Parliament and joins another party or remains in Parliament as an independent member shall vacate his seat. In Zambia, if an independent member or a nominated Member of Parliament is not debarred from joining a political party of their choice after election or nomination.

3.3.6 Expelled Members
The position with regard to members who have been expelled from the original political parties differs from country to country. The anti-defection law in India does not state the position and status of members who are expelled from their political parties. Such a member, however, continues to be a member of the House and is seated separately from the bloc of seats earmarked for his original political party. In Bangladesh, if a member is expelled from his political party, the ‘dispute’ is referred to the Election Commission whose decision is final and no appeal can be made against it. In Lesotho, in case a member is expelled from his political party, he is not disqualified from the membership of the same party but is seated separately in the House as is the case in India. In Belize and Guyana, the Constitution does not have any provisions dealing with the members expelled from their parties. In Malawi, a member who is expelled by his party for reason other than crossing the

Anti-Defection Law in India- A Critical Analysis floor does not lose his seat. He remains not affiliated to another party, he becomes an independent. He keeps his seat and status as Deputy of Parliament for the full tenure of the Legislature as a representative of his voters. In New Zealand, a member’s seat falls vacant if he is expelled from the membership of his political party. In Sierra Leone, the practice is that when a member is expelled from the party, the Speaker sets up a committee which enquires into the matter and reports to the Speaker and the Speaker takes a view in the matter. The Speaker’s decision is, however, appealable in a Court of Law. In Singapore and Sri Lanka, if a member is expelled from his party, he will lose his seat in Parliament. In Zambia, where the Speaker receives intimation from a political party regarding the expulsion of a member from the party, he has the mandate of the law in such a situation to inform the President and Electoral Commission that a vacancy has occurred in the membership of National Assembly. In Zimbabwe, the circumstances under which a member can be deemed to have ceased to belong to his party are not defined which means it can be through resigning, being expelled or defection, thus leaving a lot of discretion with the party and the member concerned. In such eventually, the seat of the member is declared vacant and an election has to be held.

3.3.7 Exempting the Presiding Officer
In order to facilitate the neutrality of the Presiding Officers, they need to be exempted from the rigour of the law if they sever their political connection with their original political party after election to the chair. Under the anti-defection law in India, a special provision has

Anti-Defection Law in India- A Critical Analysis been made in respect of Presiding Officers and Deputy Presiding Officers which enable then to sever their connections with the political party they originally belonged without incurring any disqualification. They can rejoin the political party after laying down the office, under the relevant law in Bangladesh, Guyana, Nigeria, Singapore and Sri Lanka no such provision for exemption is available to the Speaker or the Deputy Speaker. In Belize, the Speaker is also subject to disqualification as a member of the House of Representatives if he crosses the floor. In Kenya, exemption is given to a member who is elected as Speaker and he does not attract the provision relating to the law in this regard. In Mozambique, the Speaker and the Deputy Speaker of the Assembly are not required to exercise any impartiality or dissension from the political parties they belong to. Further, they have the right to vote, which in principle, would be affected in compliance with the party through which they were elected. In New Zealand, Presiding Officers (unless originally elected as independent members) are not treated differently from other members of their parliamentary party. In Pakistan also the defection law as contained in Art 63A of the Constitution of Pakistan is not applicable to Chairman or the Speaker of a House. In Zimbabwe, the question of defection or change of party affiliation in the case of the Speaker does not arise because the Speaker is not member of the Assembly. The Constitution of Zimbabwe under Art 69(1) provides that there shall be a Speaker of the National Assembly who shall be elected by the members of the Assembly from amongst persons who are qualified to be elected as members of the Assembly but are not members of the Assembly.

3.3.8 Presiding Officer as Deciding Authority
While in several Parliaments Presiding Officers are competent and the final authority to take a decision with regard to defection cases, in some countries an appeal can be made to

Anti-Defection Law in India- A Critical Analysis the Court or the Election Commission or some other bodies. The position in India is that the Chairman or the Speaker of the respective House determines the question as to whether a member a member of a House of Parliament or a State Legislature has become subject to disqualification. The Presiding Officers, however, cannot take any initiative suo moto. It has to be on the basis of a petition to be filed by a member. Where the question is with reference to the Chairman or the Speaker himself, a member of the concerned House, elected by it, in that behalf, will be decide by it. Although anti-defection law in India envisaged that no court shall have any jurisdiction respect of any matter connected with the disqualification of a member of a House under the law, the Supreme Court of India has held this provision, which bars the jurisdiction of Courts in such matters as ultra vires. Hence, members on many occasions have moved the concerned courts challenging the orders of the Speaker. The court’s judgments have been implemented also. In Bangladesh, all the decisions given by the Election Commission are final and no provision for appeal lies against such decisions. Whereas in India only a member of the House can file a petition for disqualification of another member, in Bangladesh any person or a member can bring the dispute to the notice of the Speaker. The Speaker then prepares a statement containing all details and sends it to the Election Commission. In Belize, the Speaker is competent to take decision in cases relating to floor crossing. However, the decision of the Speaker is appealable in the Supreme Court. In Lesotho, the question regarding disqualification of a member is taken up by the Presiding Officer suo moto. In Malawi, the Speaker’s decision is preceded by a motion from another member. The Presiding Officer cannot act unless there is a motion for the removal of a member. In Mozambique, the loss of the mandate of a Deputy is declared by the Standing Committee, a body chaired by the Speaker, which should be announced in the plenary and published in the Government Gazette. It is upon the Standing Committee to discuss the sanctions in consultations with the

Anti-Defection Law in India- A Critical Analysis Chief Whip of the bench the deputy belongs to. Further, there is the choice to appeal against the sanctions to the plenary within eight days after notification. In New Zealand, the Speaker acts only upon a written notice received either from the member himself in case of his resignation from the parliamentary membership of a party or from the parliamentary leader of a party in case of member’s expulsion from that party. The Speaker cannot raise the issue on his own initiative. In both the eventualities, the Speaker is concerned only with whether a notice in the correct form has been given. As advice in the case of resignation can only come from the member himself, there is unlikely to be any conflict. In the case of expulsion, the Speaker has no power to review a parliamentary party’s decision to expel a member. However, a member can only be expelled if at least two-thirds of the parliamentary members of the party support the member’s expulsion. In Pakistan, if a member comes under the rigour of disqualification on the grounds laid down under Art 63A of the Constitution of Pakistan, he may be declared in writing by the Head of the Parliamentary Party to have defected from the political party, and the Head of the Parliamentary Party may forward a copy of the declaration to the Presiding Officer and the member concerned. However, before making such declaration, the Head of Parliamentary Party shall provide the member with an opportunity to show cause as to why such declaration may not be made against him. The Presiding Officer shall, within two days, refer the declaration to the Chief Election Commissioner. Where the Election Commission confirms the declarations, the member shall cease to be a member of the House and his seat shall become vacant. Any party aggrieved by the decision of the Election Commission may prefer an appeal to the Supreme Court, within thirty days and the Court shall decide the matter within three months from the date of the filing of the appeal.

Anti-Defection Law in India- A Critical Analysis In Papua New Guinea, if a member chooses to change the party then he is required to face the ‘leadership tribunal’ (the Ombudsman Commission), which shall decide whether the grounds for resignation are valid. Under the legislation, valid resignations are possible only when the party has breached its own constitution or when the party has been declared insolvent. If the tribunal rules against the member, a by-election must be held. In Singapore, the Constitution gives Parliament the power to decide any question relating to the disqualification of a member. The decision of the Parliament in such cases is final. In South Africa, a member could resign from a party, during the window period, to form another party within the Legislature which had not been registered in terms of applicable law needed to formally apply for registration within the within the window period. Registration of the new party needed to be confirmed by the appropriate authority (i.e. the Independent Electoral Commission) within four months after the expiry of the window period. Within seven days after expiry of the window period, the Speaker would publish in the Gazette details of the altered composition of the Legislature. Where applicable, a party is required within seven days after the window period to submit to the Secretary of the Legislature a new list of candidates. In Sri Lanka, there is no provision to enable a member to file a petition for disqualification against another member. Similarly the Presiding Officer has no authority to take up a matter relating to defection. However, in case of the expulsion of a member, his seat shall not become vacant if prior to the expiration of one month he applies to the Supreme Court by petition in writing and the Supreme Court upon such application determines that such expulsion was invalid. If the Court determines that the expulsion was valid, the vacancy shall occur from the date of such determination.

3.3.9 Time Limit stipulated for deciding the cases relating to defection

Anti-Defection Law in India- A Critical Analysis Under the anti-defection law in India, no time limit has been stipulated for deciding the cases relating to defection. There is a feeling in some quarters that there should be a reasonable time frame within which decision under the anti-defection law should be given. Unlike India, in Bangladesh, the Speaker shall, within thirty days after a dispute has arisen, prepare a statement and send it to the Election Commission to hear and determine the dispute. Where a dispute has been referred to the Election Commission by the Speaker for hearing and determination, the Commission shall, unless it is of opinion that a reference on any point regarding the dispute is required to be made to the Speaker, communicate, within fourteen days of the receipt of the statement, the statement to the parties to the dispute asking them to submit statements in writing, if any, on the dispute within such time as may be specified by it. The Election Commission decides the case and communicates its decision of the Election Commission is final and no appeal lies against such decision. The position in Belize is that where a person is subject to disqualification for crossing the floor, the Leader of his party in the House of Representatives shall, within seven days of such crossing of the floor, notify the Speaker in writing of such member crossing the floor. Upon receipt of the notice the Speaker shall, if satisfied, make a declaration at the next sitting of the House of Representatives after receiving the notice that the member has ceased to be a member by reason of crossing the floor. The member may, within 21 days of making the declaration to the Speaker regarding disqualification, appeal against the declaration to the Supreme Court whose decision on the matter shall be final. In New Zealand, when a member is expelled, he is given 21 working days time limit to respond and after considering the response (if any), at least two-thirds of the parliamentary members of that party shall agree that the leader should give notice to the Speaker that the member has been expelled from the party. In Pakistan upon receipt of the declaration from the Head of the Parliamentary Party addressed to the Presiding Officer regarding defection of

Anti-Defection Law in India- A Critical Analysis a member, the Presiding Officer of the House shall, within two days, refer the declaration to the Chief Election Commissioner, who shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days if its receipt by the Chief Election Commissioner. Any party aggrieved by the decision of the Election Commission may prefer an appeal an appeal to the Supreme Court within thirty days and the Court shall decide the matter within three months. In Sri Lanka, where a Member of Parliament ceases by resignation, expulsion or otherwise, to be a member of a recognised political party or independent group on whose nomination paper his name appeared at the time of his becoming such Member of Parliament, his seat shall become vacant upon the expiration of a period of one month from the date of his ceasing to be such member. As mentioned earlier, in Trinidad and Tobago, a member who has been declared as having resigned from or been expelled by the party, has a right to institute legal proceedings challenging his resignation or expulsion. However, if any within 14 days of such a declaration by the Speaker, the concerned member does not challenge the allegation of his resignation or expulsion; he shall vacate his seat at the end of 14 days. If within the stipulated period of 14 days, the concerned member institutes legal proceedings challenging his resignation or expulsion, he is not required to vacate his seat until the proceedings instituted by him are withdrawn, or the question has been finally determined by a decision upholding the resignation or expulsion, he shall vacate his seat at the end of 14 days. If within the stipulated period of 14 days, the concerned member institutes legal proceedings challenging his resignation or expulsion, he is not required to vacate his seat until the proceedings instituted by him are withdrawn, or the question has been finally determined by a decision upholding the resignation or expulsion.

3.4 Conclusion

Anti-Defection Law in India- A Critical Analysis Anti-defection laws are evolving and dynamic. While many Parliaments have addressed the issue with the help of parliamentary rules, customs and conventions, some have passed laws and framed specific rules to cope with the issues relating to changing party affiliation by members. On a fair perusal of the different strategies that are used to tackle the problems of defections, the researcher in the process of incorporating this chapter in the research paper would cull out the important and key ways to handle the problem of defection in India which would be categorically addressed at the later part of the discussion, in accordance with the hypothesis.

Anti-Defection Law in India- A Critical Analysis

Chapter IV Anti-Defection Law and Democracy
4.1 Introduction:
Before the 52nd Amendment was brought to the Indian Constitution, the laws governing disqualification of Members of Parliament and State Legislature were dealt under Art 10221 and Art 19122 of the Constitution of India respectively. Special Legislation known
21

Art 102: Disqualification for membership— (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament— (a) If he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder (b) If he is of unsound mind and stands so declared by a competent court; (c) If he is an undischarged insolvent; (d) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under nay acknowledgment of allegiance or adherence to a foreign State; (e) If he is so disqualified by or under any law made by Parliament. (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule

22

Art 191: Disqualifications for membership— (1) A person shall be disqualified for being chosen as, and for being, a member of Legislative Assembly or Legislative Council of State— (a) If he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State not to disqualify its holder (b) If he is of unsound mind and stands so declared by a competent court; (c) If he is an undischarged insolvent; (d) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under nay acknowledgment of allegiance or adherence to a foreign State; (e) If he is so disqualified by or under any law made by Parliament.

Conti... (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule

Anti-Defection Law in India- A Critical Analysis as the Representation of People’s Act, 1951 was also concerned with matter affecting disqualification of members. However, it is pertinent to note that the above laws aimed at disqualifying a member either from a Parliament or from a State Legislature for being guilty of electoral offences, corrupt practices etc. After the inclusion of the horrendous antidefection law via tenth schedule, there has been a backlog which exists in the working of one of the largest democracies across the globe. As already discussed in Chapter I, while flipping the pages of history that gave birth to the 52nd Amendment it is euphemistically referred to the reasons for incorporating antidefection laws in India. After a fair discussion on the different strategies adopted by different commonwealth nations around the world, it can be asserted that defection exists everywhere. It was seen during the discussion in Chapter II, some countries have enacted legislation to handle defection, while some other countries have not adhered to the process of enacting legislation, by not treating defection as a threat or a problem. Between the fourth and the fifth general elections in 1967 and 1972 from among the 4,000 odd members of the Lok Sabha and the Legislative Assemblies in the States and the Union Territories, there were nearly 2,000 cases of defection and counter-defection. By the end of March 1971 approximately 50% of the legislators had changed their party affiliations and several of them did so more than once-some of them as many as five times. One MLA was found to have defected five times to be a Minister for only five days. For some time, on an average more than one legislator was defecting each day and almost one State Government falling each month due to these changes in party affiliations by members. In the case of State Assemblies alone, as much as 50.5% of the total number of legislators changed their political affiliations at least once.23
23

Malhotra G.C, Anti Defection Law in India and the Commonwealth, Lok Sabha Secretariat, Pg: 03, Ed:11th,

Metropolitan Book Co. Pvt. Ltd, 2005

Anti-Defection Law in India- A Critical Analysis Concerned over the malaise of political defections in national life, the Lok Sabha adopted a non-official resolution on 8 December, 1967 and appointed the Chavan Committee. Immediately after the general elections held in December 1984, the President of India said in his address to both Houses of Parliament assembled together on 17 January, 1985 that the Government intended to introduce in that session a Bill to outlaw defections. In fulfilment of that assurance, the Fifty Second Amendment Bill to the Indian Constitution was introduced. The anti-defection was well conceived, with good intentions, but it was born in sin and took too long to be born. The motivation and timing were not entirely honest or wholly honourable. It was a Bill prepared in haste and rushed through the two Houses at a time when the ruling party had an unprecedented majority in the Lok Sabha. It was natural for the leader as the watch-dog of party interests to want to ensure that his sheep kept together and did not desert the flock. The anti-defection law served the Congress Party well inasmuch as for five years it worked as an admirable deterrent against party dissidents turning defectors and threatening the stability of the Government. During the Eight Lok Sabha period, there was only one case of defection in which the member was disqualified under the Tenth Schedule. It is important that those who wax eloquent about the basic purpose of the anti-defection law and its objectives of preventing unprincipled acts of defections should not forget this factual background and perspective.24

4.2 Effect of Tenth Schedule on Democracy
People often mean by “freedom” or “liberty” both the absence of constraint and something else as well—for instance, as a distinguished American Judge would have said, “Enough economic security to allow its possessor the enjoyment of a satisfactory life”. The
24

Kashyap Subhash C., Anti-Defection Law and Parliamentary Privileges, Pg: 78, Ed: 2nd, Universal Law

Publishing Co. Pvt. Ltd., 2003.

Anti-Defection Law in India- A Critical Analysis same people very often fail to realize the possible contradictions between these two different meanings of freedom and the unpleasant fact that you cannot adopt the latter without sacrificing to a certain extent the former, and vice versa. Their syncretistic view of freedom is simply based on a semantic confusion.25 Today freedom and constraint pivot more and more on legislation. People generally realize fully the extraordinary importance of technology in the changes that are taking place in contemporary society. On the hand, they do not seem to realize to the same extent the parallel changes brought about by legislation, often without any necessary connection with technology. What they appear to realize even less is that the importance of the latter changes in contemporary society depends in its turn on a silent revolution in a present day ideas about the actual function of legislation. In fact, the increasing significance of legislation in almost all the legal systems of the world is probably the most striking feature of our era, besides technological and scientific progress. While in the Anglo-Saxon countries common law and ordinary courts of judicature are constantly losing ground to statutory law and administrative authorities, in the Continental countries civil law is undergoing a parallel process of submersion as a result of the thousands of laws that fill the statute books each year. Only sixty years after the introduction the German Civil Code and a little more than a century and a half after the introduction of the Code Napoleon the very idea that the law might not be identical with legislation seems odd both to students of law and to laymen.26 Legislation appears today to be a quick, rational and far-reaching remedy against every kind of evil or inconvenience, as compared with, say judicial decisions, the settlement of disputes by private arbiters, conventions, customs and similar kinds of spontaneous adjustments on the part of individuals. A fact that almost always goes unnoticed is that a
25 26

Leoni Bruno, Freedom and the Law, Pg: 4, D. Van Nostrand Company Inc. Princeton, New Jersey, 1961 ibid

Anti-Defection Law in India- A Critical Analysis remedy by way of legislation may be too quick to be efficacious, too unpredictably farreaching to be wholly beneficial, and too directly connected with the contingent views and interests of a handful of people i.e. the legislators, whoever they may be, to be, in fact, a remedy for all concerned. Even when all this is noticed, the criticism is usually directed against legislation as such, and a new remedy is always looked for in “better” statues instead of in something altogether different from legislation.27 In fact, the problem of fundamental rights enshrined in Part III of the Constitution, its character, vitality and judicial obligations to uphold the same at all times and in all circumstances offer the historical background as well as how the judicial psychology perceived and penetrated these issues. Incisions to deflate any claim to total supremacy of Parliament have been resorted to so as to preserve and safeguard these guarantees to citizens. Right from A.K. Gopalan v. State of Madras28 to Kesavananda Bharati v. State of Kerala29 and Minerva Mills Ltd. v. Union of India30, the underlying thinking had been the same. In A.K. Gopalan’s case31, Mukherjee. J pointedly referred to the phrase “freedom” and asserted that these are secured to individual subjects to restrain in the interest in the interests of society. In Kevalappara K Kochuni v. State32, the Court equated these rights having transcendental position and in Basheer Nath v. I. T. Commissioner33, the Court ruled that in matters of rights, there is neither opinion nor waiver possible. The fundamental rights operative and applicative field touches both substantive as well as procedural laws this has

27 28 29 30 31 32 33

Leoni Bruno, Freedom and the Law, Pg: 5, D. Van Nostrand Company Inc. Princeton, New Jersey, 1961 AIR 1950 SC 27 AIR 1973 SC 1461 AIR 1980 SC 1789 AIR 1950 SC 27 AIR 1960 SC 1080 AIR 1959 SC 149

Anti-Defection Law in India- A Critical Analysis been laid down in State of West Bengal v. Anwar Ali34; K.R. Rawat v. State of Saurashtra35; Lachamandas v. State of Bombay36 and Quasim Razvi v. State37. The Court had been tolerant to reasonable restrictions, if permissible under the scheme of the Constitution, this cardinal principle has been reiterated in a plethora of cases by the guardian of justices viz Chintaman Rao v. State of M.P.38; State of Madras v. Smt. Champakam39; K.K. Kochuni v. State40; N.B. Khare v. State of Delhi41; State of Madras v. V.G. Rao42; Dwaraka Prasad v. State of U.P43; Jaghir Ahmed v. State of U.P44; Hari Khemu v. Dy Commissioner of Police45; MCVS Arunchaala Nadar v. Union of India46; Narendra Kumar v. Union of India47; Superintendent Central Prison, Fategarh v. Dr. Ram Manohar Lohia48; Babulal v. State of Maharastra49; Kameshwar Prasad v. State of Bihar50; O.K. Ghosh v. E.X. Joseph51; Ranjit D. Udeshi v. State52; Jan Mohammad v. State of Gujarat53.

34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53

AIR 1952 SC 75 AIR 1952 SC 123 AIR 1952 SC 235 AIR 1953 SC 156 AIR 1951 SC 118 AIR 1951 SC 226 AIR 1960 SC 1080 AIR 1950 SC 112 AIR 1952 SC 196 AIR 1954 SC 224 AIR 1954 SC 728 AIR 1956 Bom 559 AIR 1959 SC 300 AIR 1960 SC 430 AIR 1960 SC 633 AIR 1961 SC 884 AIR 1962 SC 1166 AIR 1963 SC 812 AIR 1965 SC 881 AIR 1966 SC 385

Anti-Defection Law in India- A Critical Analysis System of rights of individual is an integral part of democracy as a political form adopted for the policy of the country. Subversion of it subverts the very form and endangers the democracy. The Courts thus stick to the premise both in the interest of the individual, so also the form we have adopted. Even in countries having no written Constitution but possessing political format of democracy, such rights are treated to be inalienable. As discussed in the previous chapter another feature of legislation in contemporary society apart from a few instances of direct democracy in small communities like the Switzerland where the practice of “referendum” exists, the legislators are assumed to represent their citizens in the legislative process. It is obvious that representation, like legislation, is something altogether extraneous to the procedures adopted for scientific and technological progress. The very idea that a scientist or a technician should be represented by other people in carrying on of a scientific or technical research should be entrusted, not to a particular individuals acting as such even when they collaborate in a team, but to some kind of legislative committee empowered to reach a decision by majority vote. The resulting situation in contemporary society is a kind of schizophrenia, which, far from being denounced, has been hardly noticed so far. The researcher further goes to observes that people behave as if their need for individual decision were almost completely satisfied by the fact of their personal access to their corresponding needs for individual initiative and individual decision in the political and legal spheres seem to be met be ceremonial and almost magical procedures such as elections of “representatives” who are supposed to know by some mysterious inspiration what their constituents really want and to able to decide accordingly. True, individuals still have, at least in the Western world, the possibility of deciding and acting as individuals in many respects.

Anti-Defection Law in India- A Critical Analysis Today the fact that we do not need to entrust to other people the task of deciding, for instance, how we have to speak or how we should spend our leisure time fails to make us realize that the same should be true of a great many other actions and decisions that we take in the sphere of law. Our present notion of law is definitely affected by the overwhelming importance that we attach to the function of legislation, that is, to the will of other people relating to our daily behaviour. People are actually far from attaining through legislation the ideal certainty of the law, in the practical sense that this ideal should have for anybody who must plan for the future and who has to know, therefore, what the legal consequences of his decisions will be. While legislation is almost always certain, that is, precise and recognizable, as long as it is “in force,” people can never be certain that the legislation in force today will be in force tomorrow or even tomorrow morning. The legal system centred on legislation, while involving the possibility that other people (the legislators) may interfere with our actions every day, also involves the possibility that they may change their way of interfering every day. As a result, people are prevented not only from freely deciding what to do, but from foreseeing the legal effects of their daily behaviour. The researcher does not maintain that legislation should be entirely discarded. However, that legislation is actually incompatible with individual initiative and decision when it reaches a limit that contemporary society seems already to have gone far beyond. This may seem to be a radical view but radical views are appreciated than syncretistic theories that try to conceal the problem than enter the indomitable battle to resolve them. It appears that the basics of English Parliament are interwoven in the Indian Constitutional basic structure. In India, the law is singularly pronounced and not different. Institutional edifice of legislature is erected brick by brick and not by blocks, individual citizen providing the brick. Legislatures are constituted by and composed of individual

Anti-Defection Law in India- A Critical Analysis citizen providing the elected as such. Party or group remains the loose format for smooth functioning, but does not compose the legislatures. Individual comes with the gifts of freedom of speech and expression, and similarly having full freedom of assembly as well of forming association.54 In this context, what was observed on the English soil with all force by the Great Winston Churchill can be quoted, which is sufficient to express the inhibition that will affect the freedom of the elected representative: “What is the use of sending Members of Parliament to say popular things of the moment, and saying things merely to give satisfaction to the Government whips and by cheering loudly every Ministerial platitude? How could Parliament survive if the members stamped out every individual independent judgement?” 55 An analysis of the above quotes brings into light the character of democratic constitutional institution. Parliament is an institution of democracy where right of assent as well as dissent is sacrosanct. Freedom in this regard is treated essential to the very sustenance of the parliamentary democracy and any in road effects while shatter its foundation.

4.3 Comparison between Party Governance and Individual Representation
The founding fathers of the Constitution relied on the term “supreme good” as the vehicle of democracy. In different ways the Constitution reinforces it, spells it out, suggests and indicates that any attempt to thwart would be repelled. After the Tenth Schedule was passed and made part of the Constitution, surprisingly without much dissent, debate arises as

54 55

Masodkar B.A., Law Relating to Electoral Disqualification, Pg: 40, Ed: 1, N.M. Tripati Pvt Ltd, 1986 Gilbert Martin, “The Wilderness Years”, Pg: 249, Houghton Mifflin Co, 1982

Anti-Defection Law in India- A Critical Analysis to whether that raises an ominous cloud over the glittering pattern of opting for a democracy based on individual freedom and whether it darkens the assurances available there for. Real battle at large would open in the Courts of law when issues of basic structure or basic principles would be raised in this context. Conflict of principles would cross swords to settle the victory march for eventual democratic format. First and foremost is the shock that would affect the foundation of legislatures. Apart from the individual rights, the very fundamental structure of legislature, as conceived by the Constitution, seems to suffer erosion by reason of restrictions imposed by the Tenth schedule. It is no doubt possible to suggest that it fortifies the structure which must have majority rule. However, position is otherwise, majority can be of individuals and not necessarily of the given party. Individual can remain a free agent to act according to his free will and not a cog in a moving machine, as a cog he would lose his vitality, initiative and inherent ability. Does the Constitution provide for a mere rule by such cogs? Or it opts for a rule by enlightened, free self-determining persons? The provisions of the Constitution unmistakably indicate that the Constitution of the Parliament (Article 79 to 81) and the provisions of the Legislatures of the States (Articles 168 to 171) make references to “individual members” or the “elected members” which are distinct from “the parties”. These provisions do not refer to the parties that would compose or be the constituent of these legislative bodies, nor does the Tenth Schedule amends these provisions, although indirectly puts party over the member. When the Tenth Schedule now imposes an express rule of party dictate, it necessarily would eclipse the individual member. Even if he were to vote or abstain against it, he vacates his seat, in that he ceases to be the member. The very structure having reference to individual member and individual representation has been to large extent and fundamentally changed and appears to be affected. Pathetic as well as

Anti-Defection Law in India- A Critical Analysis political questions surrounding the working of this schedule are likely to arise. The democratic set-up which we have opted for is not constitutionally “one party” or “twin party” or even “multi-party” composition of the legislatures. Partyless position is not at all ruled out. Party, no doubt, plays a part of bringing individuals together united for achieving certain aims and objectives and having political goals. They may be essential media for electing personnel committed to certain ideology. But when we come to the Constitution, it is “the individual representative” who is pivot, recognised and the pilot of his politics. He is free and constituent unit of legislature. To be free is both positive and negative while conducting as member. Legislatures, Parliament as well as State Legislatures are made of these freewheeling units. Aspects of freedom of such representative will hereafter necessarily affect the considerations while finding out the constitutional validity of the provisions of the Tenth Schedule that raises a political party as an operational agency in legislatures and subjects the continuance of members to the dictate of party-discipline. The provisions of the Tenth Schedule have reference to the conduct of legislatures and acts and omissions in the context of the given party. This is entirely a new path, a basic departure from the original format. On this aspect, as indicated, the relevance of Art 81, dealing with the constitution of Parliament, as well as Article 170 and 171, dealing with composition of legislative assemblies, cannot but be re-emphasized. Structurally, these provisions do contemplate having individual representative free to be a member of any party or himself be the party. This is in contrast to what party exists outside the House. It is well nigh impossible to read within it, constitutional reference to a group of individual or to a party as component constitutional part. For the founding father, it would have been easy to indicate so. Even implications rule out such possibility. Reference to democratic republic in the preamble of our Constitution highlights the intent in providing this form of composing legislatures. When the Constitution offers unmistakable evidence that supreme sovereign legislature should be composed of “members”

Anti-Defection Law in India- A Critical Analysis and not of “parties”, no implication can be read within its texture. It is the “number of members” for the purpose of composition of the House that has relevance, not their group or party. In other words, “individual members” chosen by the voters from the given constituency to the respective legislatures alone form the basic, constituent as well structural part of the Indian legislature. Simply stated, the founding scheme is individual-oriented and not group-collective or party-oriented. Democracy for all and of all, once elected, representative of all and for all is very much the singular premise. Democratic republic is instituted so that each and every individual citizen independently is the part of it and not by reason of his being a member of any group or party. The provisions available in Article 84 or Article 85 concerning qualification to be “the representative” in Parliament and the provisions like Article 173 with regard to the State legislature have reference to individual “representative”. There is no reference, express or implied, in these Articles as to the qualifications of the members being the representatives of a particular party, nor the qualifying oath required under Article 88 or Article 199 has any reference to discipline of the party, representative id constitutionally bound and promises to act according to his faith and of course without fear or favour. Implications of this oath are manifold. It has reference for all intent to the free will of the individual, so as to keep him free ever for discharging his high functions. This should be so for reason of the complexity of social and political life of heterogamous character, including those of linguistic and religious majority and minority consideration. Negatively too that freedom is, therefore, assured. If the Forms of different oaths prescribed by the Third Schedule are read, the same refer to “free faith and allegiance to the Constitution” and “the sovereignty and integrity of India” and faithful “discharge of the duty” as the individual representative. (Form B): In other words, it is atomised individual representation rather than collective group party representative. How can a representative under dictate and in fear of losing his seat faithfully then discharge his

Anti-Defection Law in India- A Critical Analysis duty while representing multifarious interests? Freedom of judgment and free will is, in fact, essence of this affirmation in the context of the objects and ideological dictates of party in the judgement of the representative may not harmonise or even may clash in interest. By reason of the Tenth Schedule, if he acts contrary to party-dictate, he is to be remotely, to any such dictate or its binding effect, nor can be read within “discharge of the duty” which has clear reference to the duty of office of the representative and not member of party. All this is the part of eligibility. Surely, such eligibility cannot be eclipsed by providing disqualification which affects the very basis and foundation of eligibility. Such an exercise would be unworkable, self-defeating, basically destructive and above all, arbitrary. The question of qualification has been touched upon in the case of Indira Gandhi v. Raj Narian,56, though in a different context, but nonetheless the Court’s reasoning there suggests that as far as the constituent reference point is concerned, it is the individual. Democratic matrix is seminal. It is simple too. It interweaves individual into a political pattern of its own. Individual as a voter, individual as a candidate and individual as a representative. That is how by individual representations by their number the Parliament or the State legislature is constituted. Even upon dissolution of these bodies, consistently in the phraseology employed by the Constitution reference is made to the member. When the legislature is dissolved, it is the member who vacates the office and his capacity to represent terminates.57 This atomised democracy, the Constitution has adopted and not mass-groupruling democracy. May be in the elegant hope that we have opted for more developed form of democracy having free willing enlightened individuals collected in assembly to steer the affairs of Government. Fundamentally, the matrix is clear, so also its goal, objectives and

56 57

AIR 1975 SC 2299 U. N. Rao v. Indira Gandi, AIR 1971 SC 1002

Anti-Defection Law in India- A Critical Analysis orientations. Unless drastic departures are initiated, introduced after full deliberations, this atomised form of democracy is the core of the Constitution.

4.4 Conclusion
If the representative is subjected by reason of penalty and not by choice, then we would be equating the candidate of the party while he contests election to continue to be so even when he steps in the legislative house and thereafter. The result is a wedlock which does not permit dissent. Once dissent, divorce is a must. It is possible, however, to suggest from what is enacted in the Tenth Schedule that the party structure is now being pre-empted and treated as basic and fundamental, for upon breach of the party mandate in the matters of vote or abstaining from voting or resignation, the representative loses his seat itself. Party supremacy, thus, is accepted as a principle throughout, in that Schedule, which has wide ranging ramifications which do not appear to have been kept in view while enacting amendment to the Constitution. The possible merit or principle appears to be to instil discipline to erect and fortify party-system and stabilise it and avoid and discourage unethical conduct of cross-voting or floor-crossing for various inducements and consideration. With all these laudable objects, which are not very much explicitly in the text of the Schedule, inherently the scheme is in conflict with the initial scheme of our Constitution pattern that relies upon individual representative and confers unimpeded freedom upon him. Curtailment of liberty and shift in the point of reference is likely to raise not only intricate debates but direct and indirect questions of our basic philosophy. Similarly, institutions may undergo long range changes and even the democratic set-up may suffer erosion by emergence of autocratic apparatus of party machine. This is more so for penalty follows by reason of incurring disqualification on the ground of what is called “defection”

Anti-Defection Law in India- A Critical Analysis that cuts at the root of free dissent and independent judgment of an elected representative. That also puts Parliament under the shadow of party and its members echoing party views like puppets. The very veneer of and sap that sustains, free flow of ideas may appear to be evaporating. For always in matters of vote or abstention, presence or non-presence, the controlling judgment of the party would prejudge and rule the rostrum. Legislative discussion and its results may become farcical and counter-productive. Inherently, the good of liberty and freedom would always be at stake. This may foreshadow a rise of autocracy in the garb of democracy and loss of representation of people.

Anti-Defection Law in India- A Critical Analysis

Chapter V
The Constitutional Developments and Provisions on “Anti Defection Law” 5.1 Introduction
The Constitution of India right from its inception included in its body, provisions relating to disqualification of members, Art 10258 and Art 19159 deals with disqualification of a Member of Parliament and Art 191 deals with disqualification of Member of State
58

Art 102: Disqualification for membership— (3) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament— (f) If he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder (g) If he is of unsound mind and stands so declared by a competent court; (h) If he is an undischarged insolvent; (i) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under nay acknowledgment of allegiance or adherence to a foreign State; (j) If he is so disqualified by or under any law made by Parliament. (4) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule

59

Art 191: Disqualifications for membership— (2) A person shall be disqualified for being chosen as, and for being, a member of Legislative Assembly or Legislative Council of State— (f) If he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State not to disqualify its holder (g) If he is of unsound mind and stands so declared by a competent court; (h) If he is an undischarged insolvent; (i) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under nay acknowledgment of allegiance or adherence to a foreign State; (j) If he is so disqualified by or under any law made by Parliament. (3) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule

Anti-Defection Law in India- A Critical Analysis Legislature. These provisions of the Constitution relates particularly with holding office of profit, if the person becomes insane, insolvent and the like. Also under Art 102 (e) and Art 191(e) a person may be disqualified under any law made by the Parliament. The Parliament has enacted the Representation of People’s Act, 1951, to handle the problem of electoral offences. Under this Act it targets basically the code of conduct that is to be maintained during elections, the irregularities that exist in the process of universal adult franchise and the like. However it severally failed to handle the problem of defection, so as to cause obstruction for democracy to reach its zenith. The politics of defection has been the bane of the parliamentary system in India. The vice of defection has been rampant in India for quite some time, especially at the State level. Defection means floor – crossing by a member of one political party to another party.60 Defection causes government instability, for a government may be toppled over due to the defection of some of its supporters to the opposition party converting it from a minority into a majority party. Defection is undemocratic as it negates the electoral verdict. A party which fails to get majority in the house through election may yet be able to manoeuvre a majority in the house and form the government by inducing defections from other parties. Thus, the party which may have won a majority through election, and got the mandate from the people to form the government, may yet fail to do so because a few of its members defect from the party.61 The purpose underlying the anti-defection law is to curb defections, but, at the same time, not to come in the way of democratic realignment of parties in the house by way of merger of two or more parties, or a split in the existing party. The anti-defection law has been

60 61

Jain M.P., Indian Constitutional Law, Pg:42, Ed: 5th, 2006, Wadhwa Publications, Nagpur ibid

Anti-Defection Law in India- A Critical Analysis hailed as a bold step to clean public life in India, but, in course of time, certain defects therein have become apparent which have very much compromised the effectiveness of the law to achieve its objectives. This has very much hampered on the term “representative government”. As is already discussed, the anti-defection laws under the Constitution of India is passed without deliberate discussions and it lacks certainties at several places; it utterly fails to define important and key terms like ‘defection’, ‘political parties’ etc. The resulting factor due to lack of definition of these terms is very serious which will be discussed at length in the subsequent paragraphs of the discussion for e.g. the lack of definition for the term ‘defection’ under the Tenth Schedule and inclusion of Para 2 (1) (b) under the Tenth Schedule has changed the very dimensions of the term democracy and hampered the conduct of democracy both in letter and in spirit, by mandating unquestioned obedience to whips issued by the parties, in order to curtail a few cases of unparliamentary practises (voting against party for a consideration by a member).

In order to fill the lacuna that existed in our polity, the Indian Parliament, under the able leadership of Mr. Rajiv Gandhi brought an Amendment to the Indian Constitution in the year 1985. In this amendment Art 102 and Art 191 was made more effective by adding a clause of disqualification under Tenth Schedule for defection. Also, in the same amendment the Tenth Schedule was incorporated in parlance to Art 102(2) & Art 191(2) so to specifically tackle the evil of defection, which is so omnipresent.

5.2 Tenth Schedule and the 52nd Amendment to the Constitution of India

Anti-Defection Law in India- A Critical Analysis Articles 102(2) and 191(2) Provisions as to disqualification on ground of defection: 1. Interpretation- in this Schedule, unless the context otherwise requires,(a) “House” means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State; (b) “legislature party,” in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or 62[***], paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions; (c) “original political party,” in relation to a member of a House, means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 ; (d) “paragraph” means a paragraph of this schedule.

2. Disqualification on ground of defection.(1) Subject to the provisions of 63[paragraphs 4 & 5, a member of a House belonging to any political party shall be disqualified for being a member of the House(a) if he has voluntarily given 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 or by any person or authority
62

The words “paragraph 3, or as the case may be” omitted by the Constitution (Ninety First Amendment) Act Subs. The words “paragraph 3, or as the case may be” omitted by the Constitution (Ninety First Amendment)

2003, section 5(a) with effect from (1-1-2004)
63

Act 2003, section 5(b) with effect from (1-1-2004)

Anti-Defection Law in India- A Critical Analysis 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 date of such voting or abstention.

Explanation.- For the purposes of this sub-paragraph.(a) 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; (b) a nominated member of a House shall.(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party; (ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.

(2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.

Anti-Defection Law in India- A Critical Analysis (3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.

(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall.(i) where he was a member of a political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party; (ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, be deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph.
64

[***]

64

Paragraph 3, omitted by the Constitution (Ninety First Amendment) Act 2003, section 5(c) with effect from 3. Disqualification on ground of defection not to apply in case of split – Where a member of a

(1-1-2004). Prior to omission paragraph 3 stood as under House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one third of the members of such legislature party, (a) he shall not be disqualified under sub-paragraph 1 of paragraph 2 on the ground – (i) if he has voluntarily given up his membership of such political party; or

Anti-Defection Law in India- A Critical Analysis 4. Disqualification on ground of defection not to apply in case of merger.-

(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.

(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

(ii) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority 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 date of such voting or abstention; and (b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph 1 of paragraph 2 and to be his original political party for the purposes of this paragraph.

Anti-Defection Law in India- A Critical Analysis 5. Exemption- Notwithstanding anything contained in this schedule, a person who has elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule,(a) if he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party; or (b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office.

6. Decision on questions as to disqualification on ground of defection.(1) If any question arises as to whether a member of a House has become subject to disqualification under this schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final. Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.

Anti-Defection Law in India- A Critical Analysis (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212.

7. Bar of jurisdiction of courts.- Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this schedule.

8. Rules. – (1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for(a) the maintenance of registers or other records as to the political parties, if any, to which different members of the House belong; (b) the report which the leader of a legislature party in relation to a member of a House shall furnish with regard to any condonation of the nature referred to in clause (b) of sub-paragraph (1) of paragraph 2 in respect of such member, the time within which and the authority to whom such report shall be furnished;

Anti-Defection Law in India- A Critical Analysis (c) the report, which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such report shall be furnished; and (d) the procedure for deciding any question referred to in sub-paragraph (1) of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question.

(2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect.

(3) The Chairman or the Speaker of a House may, without prejudice to the provisions of article 105or, as the case may be, article 194, and to any other power which he may have under this Constitution direct that any wilful contravention by any person of the rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House.

5.3 Discussions on various paragraphs of the Tenth Schedule:

Anti-Defection Law in India- A Critical Analysis

Interpretation clause:
The definition clause suffers from a serious lacuna in as much as it defines “legislature party” and “original political party” but fails to define a “political party”. This was particularly important as by the Fifty Second Amendment the concept of political parties was finding a mention in the Constitution of India for the first time. With this the political parties were coming to have a constitutional recognition. Thus far, the Election Commission recognised political parties but it was only for the purposes of allocation of electon symbols.

During the eighth Lok Sabha following the cases of expulsion(s) of members of Congress, Akali Dal and A.G.P the Speaker referred to the Attorney General for opinion inter-alia the question whether it would not be desirable to lay down the definition of a political party and specify conditions for its recognition for purposes of the Anti-Defection Law. The Attorney General agreed that it would be desirable to do so in order to put the position beyond doubt. It was particularly imperative in view of the constitutional provision of para 3 of the Tenth Schedule to the effect that the break away faction following a split would be deemed to be a “political party” for purposes of para 2(1).

Direction 120 of the Directions by the Speaker provides for recognising a Parliamentary Part or group. To be recognised as a party, the minimum number required is one tenth of the membership and for a group it should be at least thirty. But, after the Anti Defection Law, every member of the House who is not elected as an independent or nominated, belongs to his party even if he be the only member of his party, i.e., irrespective of the number of its members in the house, every party that is represented in the House comes to automatically get constitutional recognition as a party. Thus, there is some contradiction

Anti-Defection Law in India- A Critical Analysis between the constitutional provisions and the Speaker’s directions. One of the two would need to be amended. Until that is done, in case of a conflict between the two, the constitutional provision would naturally prevail.

The 1989 Amendment to the Representation of the People Act sought to define “Political Party” as an association or a body of individual citizens of India registered with the Election Commission as a political party under section 29A. This definition is however again for the limited purpose of registration of parties with the Election Commission in connection with the elections. It does not apply to “political parties” under the Anti Defection Law. It cannot, for example, cover cases of ‘split’ and ‘merger’ where under the resultant faction or group or party is to be deemed to be ‘political party’ and ‘original political party’.

The other two most important term used in the Tenth Schedule are “split” and “merger”. Surprisingly those have also not been defined in the definition clause or elsewhere. Most of the problems in the proper implementation and interpretation of the Tenth Schedule have been caused due to the ambiguity of the terms ‘political party’, ‘splits’ and ‘merger’.

Para 2:
Under Para 2 of the Tenth Schedule,
(i)

An elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and nominated member of Parliament or a State Legislature who is a member of a political party at the time he takes his seat would be disqualified on the ground of defection if he voluntarily relinquishes his

Anti-Defection Law in India- A Critical Analysis membership of such political party or votes or abstains from voting in the house contrary to any direction of such party; (ii) An independent member of Parliament or a State Legislature will be disqualified if he joins any political party after his election; (iii) A nominated member of Parliament or a State Legislature who is not member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months form the date on which he takes his seat shall be disqualified if he joins any political party after the expiry of the said period of six months;
(iv)

Subject to the provisions of paras 3, 4 and 5 i.e., except in case of a party split or merger of parties or in the case of Speaker or Deputy Speaker every ‘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’.

This would rule out any elected member set up by a political party being at any stage regarded as anything but as a member of that party. If he defects, he is disqualified. His membership can continue with a changed party liable only in case of merger or split under paras 3 and 4. There is thus no provision for a party member being labelled as unattached etc., under any circumstance.

Serious doubts have been expressed whether this disqualification provision does not militate against the basic freedoms of association, opinion and expression – including the freedom of changing the association, opinion etc, guaranteed under the Fundamental Rights chapter of the Constitution. Also the most fundamental privilege of members guaranteed

Anti-Defection Law in India- A Critical Analysis under Article 105 and 194 of the Constitution namely that of Freedom of Speech and Expression in the Houses of Legislatures stands curtailed. Limiting the freedom of choice or binding the vote of a legislator may amount to tampering with the fundamentals of the constitution and democratic polity.

Defiance of party direction is not punished by unseating the member concerned in countries like U.K, Canada, Australia and New Zealand where Parliamentary Democracy similar to India prevails. Dissent is not considered defection because a dissenting member or one who does not comply with a particular party directive has neither changed sides, nor crossed the floor; he continues to be a member of his party.

A question has been raised, if votes are allowed to be altered by arguments and speeches, what is the use of the forum of Parliament? Also, if to ensure compliance by the members all that is to be done is issuance of a Whip, what happens to the quintessence of Parliamentary Democracy which is the continuous and day to day answerability of the Government enforced through the doctrine of ministerial responsibility?

Parliament is required to exercise its powers in certain matters which are quasi judicial in nature, example under Article 61 (relating to the impeachment of the President of India), Article 124(4) (relating to the removal of Supreme Court Judges), Article 148(1) (relating to the removal of The Controller and Auditor General), Article 217(1)(b) (relating to the Judge of a High Court) and Article 324(5) (relating to the removal of the Chief Election Commissioner). The proceedings in Parliament of such quasi judicial nature may be

Anti-Defection Law in India- A Critical Analysis influenced by the issue of a party directive under para 2 of the 52nd Amendment Act which is against the rule of Natural Justice.

Sub para 2 of para 2 of the Tenth Schedule deals with an independent member who has not been set up by a political party. Under this sub para, an independent member will be disqualified if he joins any political party after his election as member of the Legislature. But under sub para 3 of para 2 of the said Schedule, a nominated member is allowed to join a political party within six months of his nomination as a member. An independent members’ freedom to join a party is fettered although he is a master of himself and owes his election to no political party. On the contrary, the ruling party picks and chooses persons for nomination and in a way puts them under obligation. Such members are therefore, likely to join the ruling party. Both these provisions are vitiated by an inbuilt irrationality and bias and are therefore violative of Article 14.

The Supreme Court has held in Kihota Hollohon v. Zachilhu65: (i) That paragraph 2 of the Tenth Schedule to the Constitution is valid, its provisions do not suffer from the vice of subverting democratic rights of elected members of the Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended. (ii) The provisions of paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution;

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Anti-Defection Law in India- A Critical Analysis (iii) The provisions are salutary and are intended to strengthen the fabric of Indian Parliamentary Democracy by curbing unprincipled and unethical political defection. (iv) The contention that the provisions of the Tenth Schedule even with the exclusion of paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected members and, therefore, of the principles of Parliamentary Democracy, is unsound and is rejected. (v) The expression ‘any direction’ occurring in para 2(1)(6) of the Tenth Schedule requires to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but because such construction is a harmonious construction in the context. There is no justification to give the words wider meaning.
(vi)

The disqualification imposed by para 2(1) (b) must be so construed as not to unduly impinge on the freedom of speech of a member. This would be possible if para 2(1) (b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb the evil or mischief of political defection motivated by the lure of office or other similar considerations. For this purpose the direction given by the political party belonging to it, the violation of which may entail disqualification under para 2(1) (b), would have to be limited to a vote on motion of confidence or no confidence in the Government or where the motion under consideration relates to a matter

Anti-Defection Law in India- A Critical Analysis which was an internal policy and program of a political party on the basis of which it approached the electorate. (vii) Keeping in view the consequence of the disqualification i.e., termination of the membership of a House, it would be appropriate that the direction or whip which results in such disqualification under para 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under para 2(1)(b) of the Tenth Schedule so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction.

Also in Ravi S. Naik v. Union of India

66

the Supreme Court has further held that the

expression “voluntarily given up his membership” in Para 2(1) (a) does not hold the same meaning as of “resignation”, it implies a wider connotation. A membership of a political party can be given up voluntarily by any member without even tendering a resignation to that party, an inference about his voluntarily giving up a membership can be drawn from the conduct of that member.

In G. Vishwanathan v. Speaker, Tamil Nadu67 an expelled member continues to be a member of the party that had set him up as a candidate at the polls.

Para 3:

66 67

AIR 1994 SC 1558 (Para 11) AIR 1996 SC 1060

Anti-Defection Law in India- A Critical Analysis While para 2 contains general provision for disqualification on grounds of defection, para 3 is in the nature of a provisio to para 2 in as much as it provides that no disqualification would be incurred where a member claims that he belongs to a group representing a faction arising from a split in a party if the group consists of not less than one third of the members of the legislature party concerned.

One interpretation has been that once such a claim is made the only concern of the Speaker is to see whether the group consists of not less than one third of the legislature party members and if that condition is satisfied no member belonging to that group will be subject to disqualification. Under this interpretation, it is argued that since the word “used” is only ‘claims’ and the speaker is concerned only with the House and the Legislature Parties, it is not his function to enquire into what happens in the political party outside. It is not for him to pronounce upon whether or not there has been a valid split in the party outside.

The other possible interpretation that has been put forward is that in order to provide a defecting member the protection of Para 3, Speaker will also have to determine whether there has been a split in the political party outside, and whether the member belongs to the group which represents the faction arising out of the split. In case this interpretation is accepted, the most crucial words are ‘arisen as a result of’. These words make it crystal clear that the rising of a group in a legislature party as a result of the split in the original political party outside is a process and cannot be a sudden event taking place at a particular or a precise point of time. ‘Arise’ necessarily involves the concept of growing of ascending gradually.

Anti-Defection Law in India- A Critical Analysis Split in a national party itself cannot be in the nature of a guillotine that abruptly falls and in a moment divides the party members all over the country into two. Members are thinking human beings who need some time to decide which way to go. There in no mention in Para 3 of duration within which a faction must arise from the split or when the members representing the faction must make a claim that they constitute a group.

There is no concept in Para 3 or elsewhere in the Tenth Schedule of a split in the legislature party as such. ‘Split’ in Para 3 refers to the split in the original political party only. What happens in the legislature party is only the rise of groups representing the factions resulting from the split outside. Also, for the split in the original political party, there is no requirement of numbers – one third or the like – breaking away or splitting the party.

A question that has often been raised is whether it was fair to make a distinction between defection by individuals and defection by groups merely because the latter might follow or might for the sake of convenience be called split of a party or merger of parties particularly when motivations behind splits and mergers or group defections may not often be very different from those for individual defections? Whether an individual defector should be punished while defectors in a group should go scot free under the garb of a party split?

Para 3 recognises the political phenomenon of splits in parties, but it has laid down that disqualification on ground of defection shall not apply to a member only if he and other members of the party constitute a group representing a faction arising as a result of the split in the original political party and such group consists of not less than one third of the members of the legislature party. There is no nexus between numbers and the fact of a split.

Anti-Defection Law in India- A Critical Analysis The split is a complex phenomenon. It may occur because of differences over policy and programs, organisational principles, functioning and alignment of social forces within a political party etc. Elements of personality and temperamental incompatibility may also not be wholly absent.

There is nothing sacrosanct about the figure one third. It has been argued that Para 3 of the Tenth Schedule relating to splits is, therefore, not based on any rationale or intelligible differentia, violates the principles of equality and the basic constitutional structure.

The Supreme Court, has, however, held that the meaning to be given to “Split” must necessarily be examined in each case in the context of its particular facts.

Para 4:
Para 4 of the Tenth Schedule is analogues to Para 3 and the analysis in regard to Para 3 applies to Para 4 also except that Para 4 deals with the merger of an original political party with another and for a merger to be deemed to have taken place in the political parties, “not less than two thirds of the legislature party concerned must have agreed to such merger”. In the case of split, the development takes place entirely outside the House. It is not dependent on any action by the members of the legislature party concerned. In fact, the recognition of a group of one third members has not been subject to disqualification depends upon its representing a faction resulting from the split outside. In case of merger, however, under Para 4(2), it is clear that no merger of a political party in another can be deemed to have taken place unless at least two thirds of the members of the legislature party concerned have already agreed. Thus, the merger of political party outside becomes dependent on the agreement of two third majority in its legislative wing, for purposes of the Tenth Schedule.

Anti-Defection Law in India- A Critical Analysis

Para 5:
Para 5 is a special provision intended to cover the Presiding Officers of the Houses of Legislatures who on their election may like to express their firm resolve to function in a nonpartisan manner by resigning and severing their links from their erstwhile political party. The para provides that no disqualification shall be incurred by such Presiding Officers voluntarily giving up their party membership on rejoining their party on ceasing to hold the office of Presiding Officer.

Para 6:
The question as to whether a Member of a House of Parliament or State Legislature has become subject to disqualification will be determined by the Chairman or the Speaker of the respective House; where the question is with reference to the Chairman or the Speaker himself it will be decided by a Member of the concerned House elected by it in that behalf. All proceedings in relation to any question as to disqualification of a Member of a House under the Schedule will be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212. In its judgment of 18th February 1992 in Kihota Hollohon v. Zachilhu68, the Supreme Court held that the Speaker’s functions under the Tenth Schedule called for a judicial determination of issues under the law. The process of determining the question of
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AIR 1993 SC 412

Anti-Defection Law in India- A Critical Analysis disqualification could not be considered part of the proceedings of the House and as such not amenable to judial review. The Supreme Court further held that Para 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers or Chairmen is valid. But the concept of statutory finality embodied in para 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violation of Constitutional mandates, malafides, non-compliance with rules of Natural Justice and perversity, are concerned. The deeming provision in para 6(2) of Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh’s case69 to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words “be deemed to be proceedings in Parliament” or “proceedings in the Legislature of a State” confines the scope of the fiction accordingly. The Speakers or Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunals adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review. However, having regard to the constitutional scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of the decision by the Speakers or Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicative power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequences. The objectives of entrusting the responsibilities of defection under the Tenth Schedule to the Speaker were the need for (1) expedition in determination of defection cases (2)

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1965 (1) SCR 413

Anti-Defection Law in India- A Critical Analysis ensuring impartial, objective and non-partisan decisions. Some of the cases in the courts of the Speakers have taken too long and the objective of taking quick decisions has been defeated. Also, in present day conditions it would be very unrealistic to expect a speaker to completely eschew party considerations even in matters where questions of life and death for his party or its Government or its leadership may be involved. Taking decisions on disqualification of members on grounds of defection is not part of the business of the House where of course the Presiding Officer’s authority should be supreme and unfettered by courts of law outside. Also, ideally it is not and should never be part of the duties of the exalted office of the Presiding Officer to be involved in highly political and controversial cases of conflicts of party interests and healthy and unhealthy manoeuvrings of power politics. It would have added to the high prestige of the Presiding Officers if they had unanimously resolved that it was wrong for the Anti Defection Law to put the Presiding Officers in position where they would become subjects of political controversies. It was not fair to put them in a situation where their decisions would cause the fall or enable the continuance of Governments. The Presiding Officers could have asked for being relieved of all duties under the Anti Defection Law. That would have raised their prestige in the esteem of the people at large. The law could then be amended to entrust the responsibility of determining within a strict time frame all matters of disqualification to a special bench in the Supreme Court and High Courts or an independent body consisting of judges.

Para 7:
Para 7 had sought to bar the jurisdiction of courts completely from cases of disqualification on grounds of defection.

Anti-Defection Law in India- A Critical Analysis

The Supreme Court however struck down para 7 and declared that the provisions of Para 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India, and, therefore, the amendment should have been got ratified by State Legislatures in accordance with the Provisio to sub clause (2) of Article 368 of the Constitution. Since such ratification had not been obtained the provision of para 7 was not valid.

Para 8:
The Chairman or the Speaker of the House was empowered to make the rules for giving effect to the provisions of the Schedule. The rules were required to be laid before the House and were subject to modification or disapproval by the House.

The Members of Lok Sabha (Disqualification on the ground of defection) Rules, 1985 were duly made and laid on the table of the House on 16th December 1985. Lok Sabha having made no change, these rules came into force with effect from 18 th March 1986. Houses of State Legislatures have made their own rules as has the Rajya Sabha. These are all largely on the lines of Lok Sabha Rules.

Under the Rules, for a member to be disqualified on the ground of defection, a former petition in relation to the Member has to be instituted before the Speaker and every such petition has to be verified in the manner laid down in the Code of Civil Procedure 1908. A petition against a Member required to be instituted is to be addressed to the Speaker and in the case of the Speaker it is to be addressed to the Secretary General. Any petition alleging

Anti-Defection Law in India- A Critical Analysis disqualification by any Member has to be forwarded to the concerned Member, and if such petition is not made by the leader thereof, to him for his comments. The Speaker may decide the case after considering the comments on his own, or send it to the Privileges Committee for a report to be presented before him after a preliminary inquiry. The procedure for determining the question should be more or less the same as adopted by the Privileges Committee for determining a breach of privilege of the House by a Member. No Member can be subject to disqualification unless he is given a reasonable opportunity to represent his case and to be heard in person.

5.4 The Whips Under Anti Defection Law
In its literal dictionary connotation, the word “the whip” means a lash with a stick or handle used for punishing a person for an offence or in driving a horse-driven carriage for thrashing or beating the horse to urge it to move forward faster. As a verb ‘to whip’ similarly means to lash a person or animal or to strike by a whip. The word is believed to have had its origin in the terminology developed in hunting where the hunter’s employee responsible for managing the hounds and keeping them in their places is called the Whippers-in. In the context of political parties and parliamentary life, the office of the “Whip” is a vital link in the relationship between the parties and their members. The “whip” acts as a twoway channel for information flow between party leaders and members. The “Whip” is the officer of the parliamentary party or group responsible for enforcing attendance of the members, keeping them informed of the party line on various issues and from time to time issuing necessary directives—or Whips—for adhering to party discipline in the matter of voting on specific issues coming up on the floor of the House. On the other hand, the Whip

Anti-Defection Law in India- A Critical Analysis also collects information about the opinion among members on various issues and provides valuable feedback to party leaders. It is believed that the term was first used in a parliamentary context in the British House of Commons in the Eighteenth Century by Sir Edmund Burke. It was in 1769 that Edmund Burke referred in the House of Commons to intense lobbying over a division and described how the King’s Ministers had made intense efforts to bring their followers together, how they had sent for their members from all directions ‘whipping’ them in. The phrase used by Burke caught public fancy and soon became popular in parliamentary usage. Actually, the gradual evolution of the concept of whip in Britain coincided with the evolution of voting on party lines. During the year 1836, for example, the percentage of cases in which voting in divisions on the floor was on party lines was only 23, i.e., on 77 issues out of 100 there was cross voting by members. By 1898, the percentage of voting on party lines had risen to 69. During 1924-28 it touched the 95 percent mark and in 1958 further rose to as much as 98 percent.70 The institution of whip is not confined to the Westminster model of Parliaments. It exists even in countries like the United States where each party in the House of Representatives is served by a member known as the Whip. The Whips in the U.S. Congress as at Westminster carryout an essential two-way communication, conveying the views of the party membership to the leaders and informing the membership of the views of the leadership. In the Indian Parliamentary context, the Whip of Parliamentary group is the one who has been designated to ensure that members of the party are present in adequate numbers and vote according to the line decided by the party on important questions. The Chief Whip of the Government party in Lok Sabha/ Rajya Sabha is the Minister of Parliamentary Affairs

70

Jackson J. Robert, Rebels and Whips, P 4, London, 1968.

Anti-Defection Law in India- A Critical Analysis and he is directly responsible to the Leader of the House. It is a part of his duties to advise the Government on parliamentary business. The Chief Whip acts as the eyes and ears of the Leader of the Party so far as the members are concerned. During sessions, in his capacity as adviser to the Leader, he has to be in constant touch with the Prime Minister. The Chief Whip is assisted by two Ministers of State. This responsibility of keeping everybody at his post and keeping his party united, strong and well-knit falls on him. The Whips of the ruling party and of parties in opposition come into contact with each other to sort out matters of common interest and to understand and accommodate each other on many crucial occasions. Whips of the ruling party as well as those in opposition thus play a very significant role in the smooth and efficient functioning of parliamentary democracy. Over the decades, functional uses of the Whips have multiplied and expanded in many directions. In a parliamentary polity particularly, the institution of Whips plays a vital role. For, continuance or otherwise of the Government may depend on a single crucial vote on the floor of the House. The Government party Whip has “to make a House and to keep a House” which means that it is his responsibility to ensure a quorum throughout the sitting of the House by keeping the members within the sound and range of the division bells, particularly when some important business is under consideration. His most important job is ensuring the presence of members and more particularly marshalling of his party forces on important issues. The whips are the party managers in Parliament and the art of parliamentary party management may be called Whip Craft. As a floor manager, the Chief Whip of the Ruling Party has to smoothen differences and plan the business of the House in consultation with the Whips of other parties. He has to act as a liason between the Houses of Parliament, their Presiding Officers and their Secretaries on the one hand and the Ministries and Ministries and Departments of the

Anti-Defection Law in India- A Critical Analysis Government on the other. In short, the functions of the whips today encompass those of management, communication and persuasion. They keep their members informed about the business of the House and the party line on various issues and enforce party discipline. Here, we are mainly concerned with the limited managerial role or disciplining functions of the Whips. Besides the office of the whip, the term ‘whip’ has another connotation. During sessions, whips of different parties send to their member’s periodic notices and directives informing them of important debates and divisions, telling them of the probable hour of voting and demanding their presence at that time. Such notices and/or, directives are also called ‘whips’. Such ‘whips’ are reported to have been in use in the British House of Commons as far back as in 1621 when notices underlined six times were issued to King’s friends. In Britain, receiving a Whip is regarded as a privilege of party membership and a member is free to refuse the Whip. In the House of Commons, issue of a Whip is an internal party matter and the Whip is issued always outside the House. Issue of a Whip—oral or written—on the floor of the House is inconceivable. Issuance of such a Whip and warning a member not to disobey the Whip, might, in fact, amount to contempt of the House. The Whip only seeks to inform members of the business and ensure their attendance. One member trying to prevent another member from speaking or asking him not to proceed with his speech might amount to molestation of the member. Also, the whips cannot arrogate the function of the Chair and a Whip cannot be used for restraining members from challenging a ruling given by the Speaker in House. There has been no case in the long history of the British House of Commons when a Whip was issued on the floor of the House or where the Chief Whip of a party issued any Whip to only a selected few members of the party.

Anti-Defection Law in India- A Critical Analysis According to Robert Jackson, the Whips job of preventing open revolts in the British parties is not conducted in the language of threats. But, there is also the other opinion which emphasises the essential role of sections in ensuring adherence to the obligations of party membership. For instance, the Labour Party’s code of conduct provides for a number of disciplinary actions of increasing severity. The first is a written reprimand from the Chief Whip. The second is a ‘suspension’, in effect a period of probation in which the member though excluded from party colloquies is expected to comply with the party Whip. A more serious sanction is the withdrawal of the party Whip which (like suspension) is decided upon by the Parliamentary Labour Party. The effect of the withdrawal is that a member no longer receives the weekly circular of guidance from the Whips and is in effect no longer a member of the parliamentary party. By itself, this weapon may prove a boomerang, in that rewhipped member can then speak and vote as he pleases and may cause more trouble outside than inside the parliamentary party. A further step is to expel him from the national party and refuse him read option as the party’s candidate in his constituency. In the House of Commons, however, for many years now the power to expel a member from the party has not been used to punish MP’s for disobeying the party Whip in the division lobbies. The office of the Whip is not mentioned in the Constitution of India or in the Rules of Procedure of the House. In fact, till recently the political parties also found no such mention or recognition. With the passing of the Constitution (Fifty-Amendment) Act, 1985, popularly known as Anti-Defection Law, the ‘Whip’ has assumed a very important role in our parliamentary system of democracy. The Amendment, inter alia, provides for disqualification on ground of defection, as under: (1) A Member of Parliament or State Legislature belonging to any political party shall be disqualified for being a member of that House—

Anti-Defection Law in India- A Critical Analysis (a) If he has voluntarily given 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 or by any person or authority authorised 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 15 days from the date of such voting or abstention.(emphasis supplied) The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985 framed by the Speaker under the provisions of the Tenth Schedule to the Constitution inter alia provide that no reference to any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition to the Speaker. At the conclusion of the consideration of a petition, the Speaker may either dismiss the petition or declare that the member in question has incurred disqualification. (Clauses 6 & 8) It is thus obvious that after coming into force of the Constitution (Fifty-Second Amendment) Act, 1985 and the Anti-Defection Rules framed there under, political parties came to have constitutional recognition and legitimacy and the directives issued by party leadership came to have relevance in law. Disobedience of party directives or Whips thereafter could result in disqualifying a member and losing his membership. It is, however, to be noted that in order to incur disqualification a member had to vote or abstain from “voting in such House contrary to any direction issued by the political party”. It did not apply to acts other than voting, i.e. it did not interfere with a member’s right of freedom of speech in the House.71 However, this analogy of curtailing the voting right by means of issuing whips and countering it by saying that issuance of whips does not interfere with a member’s right of
71

Kashyap C. Subhas, Anti-Defection Law and Parliamentary Privileges, Pg: 100, Ed: 2, Universal Law

Publishing Co. Pvt. Ltd. 2003

Anti-Defection Law in India- A Critical Analysis freedom of speech in the House is a rationale which baffles logic. It is an analogy which is too far-fetched and has no legs to stand. This can be better illustrated by discussing the facets of freedom of speech and the ancillary rights attached in the exercise of this freedom, for a Member of Parliament to claim this right of representation and help the Constitution to become a necessary pulley in drawing the vehicle of democracy. As is already portrayed from the plethora of cases delivered by the Custodian of Justice with regard to the importance attached to the Part III of the Constitution of India in the previous chapter, let us push the same into much wider waters to examine the same in light of democracy. The necessity of this exercises are to bring out the variances in opinion with regard to Whips. In furtherance of this motive the researcher analyses the various facets of whips and the reasons for the inclusion of Para 2(1) (b) under the Tenth Schedule of the Constitution. 5.4.1 Arguments for Whips The classic way of stating the difference between democracy and dictatorship is exemplified by the arguments that the first is a multi-party system, whereas the other is a one party system. The difference between a multi-party system and a one-party system can be stated as follows: by virtue of its very mechanics a multi-party system democratizes power, while a one-party system makes it autocratic. For when many parties exist simultaneously, a party governs only insofar as it takes the part of the governed; whereas a single party governs permanently and has only the internal problem of who will govern the party itself. The roles and the corresponding role perceptions are so different in the two contexts that one may well wonder if it is proper to use the term party for both systems.72

72

Sartori Giovanni, Democratic Theory, Pg: 74, Ed:1st, Oxford & IBH Publishing Co, 1965

Anti-Defection Law in India- A Critical Analysis It is trite thus to observe that rights are not divorced from obligations. System is interlinked. Right of representation being statutory should also be so. Representative having accepted party pledge and platform can further be said to be obliged to follow it, while he sits as the member-representative. When he crosses floor or defies party mandate, he contributes to disorder and breaks the initial pledge. Was it, therefore, with reference to these and to instil democratic discipline arising under party-system that the Tenth Schedule was added to the Constitution? Is it the inherent purpose of the Tenth Schedule to interlink the obligation of party-discipline in the matters of functioning of the elected representative? How far the process of this link of obligation with rights of freedom could be stretched, so as to control even the vote of the elected representative, and could be valid, requires deeper probe and scrutiny.73 The second hypothesis what the researcher tries to lay down is of a logical consequence and it requires clear understanding of the vitals of democracy and parliamentary system in India. At the outset it must be observed that people elect their representatives who stand from a particular party not only looking at the credentials of the individual but also the principles and memorandum prepared by the political parties during the time of election. It is in these election manifestos that the need of the hour would be targeted, because the main objective of these political parties will only be to succeed in the elections. The people once satisfied and desirous to fulfil or get entitle over the promises made in these election manifestos vote for the political party. It may not be out of place to say that in many a times the individual have won not on their credentials but based on the party’s manifesto. Taking a pragmatic approach of the working of democracy in India, as illustrated above, let us know consider the effects of working of such an “indirectly direct democracy”.

73

Masodkar B.A., Law Relating to Electoral Disqualification, Pg: 53, Ed: 1, N.M. Tripati Pvt Ltd, 1986

Anti-Defection Law in India- A Critical Analysis The reason for the researcher to use the phrase indirectly direct democracy is because of the lack of certainty in the conduct of democracy in the free nation of the Republic of India. This is so because the term democracy as defined by the Great Abraham Lincoln “by the people, of the people and for the people” is losing its sanctity due to the emergence of innumerable political parties in India. The increase in the growth of number of political parties is like that of wild mushrooms in the rain forest, the consequence of such uncontrolled growth has led people to great confusion in electing their leaders. These days choosing the right representative is like looking for a spring in a hot desert, a tedious task to perform. With great difficulty, the people elect their representatives after having set their own parameters to judge a person to represent them. As said before, sometimes the party is graded over the individual and elected, the very fact that, party representation, can be claimed to a facet of democracy (direct democracy), but the system of electing a representative not because of the assurance that he guarantees to his constituency, leaves the researcher with no option than to coin the phrase indirectly direct democracy. At this juncture it is necessary to dissect the purpose of an election manifesto. The underlying objective of an election manifesto basically targets what the people need during the next few years and what are the problems of the people that needs to be attended to by the Government. It is these manifestos that promises or assures people, if the government is formed by their party. As an expected outcome, the party with better manifestos and individual credential form the government after winning the election. The outcome of this indirectly direct democracy is that even though the laudable objective of democracy has not been completely hampered of expressing people’s will, to an extent it has been able to sustain the damage caused. After all these exercise the representative goes and sits in the house to represent people’s will or at least an attempt to

Anti-Defection Law in India- A Critical Analysis represent them. It must not be forgotten that parties come into power based on the principles on which the parties work, it in furtherance of these accepted principles of parties that the Government proposes bills and makes law. A whip is issued in cases of general interest of public. A party issues a whip based on its party’s principle as promised to the people before the election. If in the discussion over a particular bill or a matter in the House, for which a whip has been issued, and the memberrepresentative of such party goes against the party whip it is definitely coming in way to express people’s will and nation’s interest will be put at stake. Even if such a member gives the cloak of “representation”, for going against whips issued, it can be profusely defeated by adhering to the Bentham’s Utilitarianism Principle viz greatest happiness of the greatest number. Sometimes, the members due to considerations received from the opposition party, may vote against the bill proposed, even though it may be of immense help to his constituency. In order to avoid such practices, to have a healthy parliamentary debate over the fate of the nation, to curb and mend people who come in the way of achieving this ultimate aim, Para 2 (1) (b) was added to the Tenth Schedule of the Indian Constitution. 5.4.2 Arguments against Whips In a democratic system every citizen is free to act according to the dictates of his conscience but such freedom is not practised even by parliamentarians. They work under the whip of the party and their actions are not free from pride and prejudice; conscience finds no room in their practice. They do not stand up in the House to call right as right or wrong as wrong. Having been confined to their own interests they have no hesitation in pulling down Government without rhyme or reason.74
74

Tyagi B.S., Judicial Activism in India, Pg No: 18, 1st Edition, 2000, Sristi Publishers

Anti-Defection Law in India- A Critical Analysis System of democracy of rights of individual is an integral part of democracy as a political form adopted for the policy of the country. Subversion of it subverts the very form and endangers the democracy. The Courts thus stick to the premise both in the interest of the individual, so also the form we have adopted. Even in countries having no written Constitution but possessing political format of democracy, such rights are treated to be inalienable. A.V.Dicey asserts about English constitutional principles stating that fundamental principle of the British Constitution is that of democracy. Freedom of association as well as freedom of speech is essential to democracy. It would be more apposite to rely on “Grammar of Politics” by that erudite, elegant Prof. Harold Laski who not only taught but thought and shaped the premises of law and politics. The learned author emphasised that the legal theory of rights will tell us that in fact what the character of a State is: “Any system of rights, therefore, has three essential aspects from which it must be regarded. There is the interest of the individual, always, at least ultimately, finally isolated from his fellow men. There is the interest of the various groups in and through which his personality finds channels of expressions. There is the interest of the community which is the total result of the whole pressure of social forces.....Obviously; therefore, rights are not the creatures of law, but its condition precedent. They are that which law is seeking to realise. Institutions are, then, bad or good in proportion as they fail or succeed in the promotion of the purpose of rights....Rights in fact, are those conditions of social life without which no man can seek, in general, to be himself at his best. For since the State exists to make possible that achievement, it is only by maintaining rights that its ends may be secured....They are rights because they are useful to the end the State seeks to serve....There is no better historic test of its adequacy than the temper in which it confronts the new demands.....In any State the demands of each citizen for the fulfilment of his best self must be taken as of equal worth;

Anti-Defection Law in India- A Critical Analysis and the utility of a right is therefore its value to all the members of the State. The rights, for instance, of freedom of the speech does not mean for those in authority, or for members of some special class of church. Freedom of speech is a right either equally applicable to all citizens without distinction or not applicable at all.....We have rights to protect and to express our personality. We have rights to safeguard our uniqueness in the vast pressure of social force. But our rights are not independent of society. We have them, because we are members of the State. We have them by reason of an organisation through which, in the world as it is, the contribution of that uniqueness can alone be made. Our rights are not independent of society, but inherent in it......Rights, therefore, are correlative with functions......Neither of them is an unchanging notion. Each has a special perspective which relates it to the special environment of any given time and place.......What seems to be permanent essence of freedom is that the personality of each individual should be so unhampered in its development, whether by authority or custom, that it can make for itself a satisfactory harmonisation of its impulses. In this perspective, the thing of importance is that harmonisation should be self-effected. The rules laid down by the State should not bar the way to any individual as distinct from another.......Equality, in other words, seems to mean the minimisation of the handicaps our present social order imposes.......A political system in which the pivot is the right of the citizen to be articulate about his wants clearly requires to safeguard his articulateness. There must be, that is to say, freedom of speech with all that makes freedom of speech effective. What is the substance of the right to such a freedom? It cannot merely mean, either, the protection of a man as an individual, for much of what he says that is most urgent comes from his speech in concert with others. Freedom of speech is a right that, clearly, needs definition in terms of the function it seeks to serve..... the citizen

Anti-Defection Law in India- A Critical Analysis must be left unfettered to express either individually, or in concert with others, any opinions he happens to hold.....”.75 The value of Prof. Laski’s perspective lies in the realisation that right is not a mere approbation but a functional capacity. Freedom of expression inheres within it freedom to function, according to one’s own judgment. The constitutional format of rights is not different. Freedom of expression, by reason of election to the legislative body, does not differ, but qua the position becomes compulsive. Correspondingly, the State’s power is weakened to curtail it. Impact of democratic form of polity, on the unique place of the elected representative, requires that he should be free functionally to express and when chooses, be silent. The question, thus, would always surround the question of liberty and freedom of individual in a democracy and functional right of the elected representative, a democratic legislator. Liberty of the elected representative to function should be paramount. It is his individual judgment and will unimpeded that would further the public interest that he is called upon to represent and while doing so not to become unfree by group considerations. Although, in practice, such individual freedom in collectively operates, the basic premise of the constitutional structure remains the same. There is no group-voting in legislature, for to vote according to one’s mature judgment and will, or to abstain from voting are functional facets of freedom. Freedom and liberty in this regard have seminal essence and that is the fundamental assurance of dynamic kind. Only because it is abused or misused or sometimes seems to be corrupted, it does not become any the less basic, fundamental or essential. Vote and its process are a modality of expression. Essential it is in people’s government. System of vote is singular and not collective, individual and not group-oriented.
75

Masodkar B.A., Law Relating to Electoral Disqualification, Pg: 45, Ed: 1, N.M. Tripati Pvt Ltd, 1986; See

also Dicey A.V., Law of Constitution, Pg: 547, Ed: 9, 1939

Anti-Defection Law in India- A Critical Analysis Could this then be controlled and rendered frozen by dictates of some anterior facts, like the one in that such a representative was elected as a candidate of a given party, ruling or opposing or has formed an opinion in opposition to such group on the issue? Could that further be authority? And suppose, individual has not chosen to follow the dictate of the party but follows his free will and judgment, would such a singular dissent be democratic or run counter to it? All these questioned premises beg the question of liberty and freedom. If the representative is subjected by reason of penalty and not by choice, then it would amount to logical fallacy of representative government. Chief Justice Gajendragadkar in his treatise76 emphasised that in democratic way of life freedom of speech and expression was basic and its significance lay in the assurance to the citizens of a free country, where-under everyone is free to develop his personality in the best manner he chooses. This freedom has a dual purpose. Firstly, it allows full scope for the individual development of the citizen and it gives ample opportunity to citizens to propagate their views, their philosophy and their ideology. He observes: “Democratic way of life is not static and it is progressive and it, therefore, contemplates changes in the socio-economic structure. The parliamentary form of democracy postulates the existence of two or more parties which believe in different economic philosophies and political ideologies, and it is implicit in this form of democratic government that a party which is in power today may be in opposition tomorrow and the party which is in opposition today would come to power tomorrow. That is why all public issues of socioeconomic importance, divergence of opinion, and conflicting views are allowed to be expressed in the press and on the platform in all democratic countries and every view is given full chance to secure the acceptance by the majority of the citizens. Voltaire’s dictum that democracy must uphold and sustain the freedom of expression of opinion by all citizens,
76

Law, Liberty and Social Justice, pp. 89, 90.

Anti-Defection Law in India- A Critical Analysis even if the said opinion appears obnoxious or subversive to some of them, symbolises the true democratic approach in the matter of the freedom of speech and expression. Truth, whether in social or in economic matters, has many facets and what may appear to be unsound to one section of the public may appear to be sound to another section. A free and fearless exchange of ideas which is the essence of the democratic way of life can thrive only if full freedom of speech and expression is guaranteed to all the citizens. It is only when the restrictions could satisfy the test of security of the State or overthrow of the State, then the freedom could be controlled”. The high fundamental and seminal position of these freedoms so essential to democratic set-up is similar both in England and the United States of America. No doubt, the Courts had to pronounce often upon the matters of personal freedoms of citizens, as citizens, and not as elected representatives, but in principle that would make hardly any difference. It thus clear that these rights are inalienable from a democratic society. The Tenth Schedule, which is supposedly meant to stall the process of political defection, is fraught with serious juridical ramifications, including the curtailment of the political rights conferred upon the individual citizens of the country. As suggested earlier, if the object was to merely stall the defections, the provisions would have been differently worded in a different manner. This is not to minimise in any manner the role of political party and the role of minimum ethics in political affairs. Danger lies somewhere else, in that partystructure is superimposed on the individual will and freedom and even innocuous as well innocent acts backed by conscious choice of ideals are likely to come in conflict with the process of party-discipline. It is not unlikely that the majority in a given party in such a setup, may behave which could loosely be called unethical, while the individual may not be willing to a party to such a process and yet he would be charged with the defection under

Anti-Defection Law in India- A Critical Analysis Tenth Schedule. Several instances can easily be multiplied so as to indicate that circumstances would prove and events justify that numerical party strength may be totally wrong on a given issue, while the individual dissent would be right and also would be necessary in furtherance of public morality. The question at heart is whether the individual will and individual dissent, which is the soul of democratic functioning, should be stifled and silenced by party or numerical, collective, autocracy. Democracy is not merely a rule of or by numbers. There is something always in addition, that unites and harmonises. Whether partyless or party-full, it is a rule of cherished ideals having individual in social setting as its fountain. Democracy, therefore, is the rule of freedom-loving enlightened individuals who are out to establish civil society. Party-cracy and its compulsive diktat can even affect the ideals of democracy like individual freedom of participation in government affairs. In the context of democracy, as adopted in India, party should, is and remains however the organisation for achieving goals and ideals, spreading ideas and ideology, philosophy consistent with political aspirations, such as freedom and liberty, equity and equality in the affairs of men. Party, however, even under the Tenth Schedule, is not a person, superimposed. Democracy cannot be equated, therefore, with diktat, but remains consistent with free flow and exchange of ideas. That equally supports party-health and party-functioning. Rise of party and its recognition under the Tenth Schedule for the purpose of finding disqualification is a half-way travel. Constitutional preference from individual to party cannot be this way. It has to be more specific, more pronounced and clearly spelt out. Till then, the Tenth Schedule may only add to ever-complicating web of political and juridical debate.

5.4.3 Subject Based Whips:
We say that elections must be free. This is indeed true, but it may not be enough; for opinion too must be, in some basic sense, free. Free elections with unfree opinion—express

Anti-Defection Law in India- A Critical Analysis nothing. The retort will be, that in every society, be it democratic or not, there is always, inevitably, a public opinion. This answer, however, calls our attention to the need of distinguishing between (i) an opinion that is public merely in the sense that it is disseminated among the public, and (ii) an opinion which the public to some degree has formed by itself. In the first sense, we have an opinion made public but in no way produced by the public: therefore public only in the geographical meaning that it is located in the public. In the second sense, we have instead an opinion of the public, meaning that the public is the subject. In the first sense, any society can be credited with a public opinion. In the second sense, no public opinion exists unless it is based on, or related to, personal and private opinion; and therefore a present-day totalitarian mass society has no public opinion, but only State-made opinions enforced upon the public.77 Until a few decades ago, there was no reason to draw this distinction. Until the advent of mass media and of totalitarian control of the public, to say “popular opinion” meant, and could only mean, “Opinion of the people,” that which the subjects, not the sovereign, had in mind. But nowadays we can find a popular opinion which is in no meaningful sense the people’s opinion. Hence the distinction is crucial and ambiguity as to the meaning of public opinion should be carefully avoided. It is therefore that public opinion only when it is relatively free and autonomous opinion, that is, to the extent that it expresses a relatively independent will of the people and not when it becomes a mere reflection of the will of the State.78 After discussing the probabilities for inclusion of Whips and criticising the fact for being included it under the Tenth Schedule, the researcher takes a vault towards the

77 78

Sartori Giovanni, Democratic Theory, Pg: 74, Ed:1st, Oxford & IBH Publishing Co, 1965 ibid

Anti-Defection Law in India- A Critical Analysis alternative that can be done in order to achieve the objective set out in Tenth Schedule for curbing the evil of defection in a much more effective manner. On a fair perusal of the position of anti-defection laws in the various Common Wealth nations and also some developed nations like the United States of America and the United Kingdom, the researcher in this research paper tries to draw parlance with that part of the anti-defection laws in these nations regarding Whips, which have deviated from the course adopted by the Indian Parliamentarians in tackling the problem of defection, in a much more effective manner to fight defection. It is much appreciated by the researcher if a holistic view on the reasons for issuance of party Whips is considered. One of the prime reasons substantiated by party heads for issuance of whips being, to regulate parliamentary debates and have a healthy ambience during discussions of serious concerns. As is already discussed Whips in England are issued only in case of procuring attendance of a member. Whereas the position of Whips in Australia and USA run in parlance, each Political Party has a Whip in the upper House and in the Lower House. He arranges the order in which his party’s members will speak in debate. He disciplines his voting. He makes sure that all members available are in the particular house when an important vote is about to be taken. He also arranges a “pair79”. In the UK the Government Chief Whip and the opposition Chief Whip constitute what are known as the ‘usual channels’ whereby negotiations are carried on regarding conduct of public business.80

79

Krishan Singh Chauhan, “ Anti Defection Law in India a Critical Appraisal” M.D. University, Rhotak, 1996 Morrison, “Government and Parliament” page 102.

page 130; also see Lane, P.H. “An Introduction to the Australian Constitution” 2nd Edition 1997 page 80.
80

Anti-Defection Law in India- A Critical Analysis The Government control over its majority is substantial. To vote against the Government is to vote against the party.81 To rebel against te Government is to leave the party. To leave the party is to lose party support at the next election since the average elector votes for the party label, this means, probably, that the member will not be re-elected. Membership of the House and accession to office alike depend on party service and party support. The House of Commons consist of parties. The Government as a party authority, has control over one or more of them. It appoints ‘Whips’ and pays many of them out of public funds. It is their function to see that members of the Party attend the House and support the Government. If the Government has a majority and so long as that majority holds together, the House does not control the Government but the Government controls the House.82 The Parliamentary Secretary to the treasury and the Lords of the Treasury have some departmental duties in the Treasury. They have to sign Treasury Warrants, but their main function is to control the proceedings of the House of Commons and keep the majority together, as Government Whips under the direction of the Prime Minister or the leader of the House. They are about thirty other Parliamentary Secretaries or other persons ranking as assistant Ministers. In addition, there are five appointments in the Royal Household which are regarded as Political Offices. The holders of these offices, too are Whips if they are in the House of Commons, and assist in Government Business in the house of Lords if they are peers. If we look at the positions of the whips in other countries and the nature of the evolution of whips as is previously discussed, it is clear that the plenary object of issuing
81 82

ibid Krishan Singh Chauhan, “Anti Defection Law in India a Critical Appraisal” M.D. University, Rhotak, 1996

page 130; also see Laski, Harold J. “Parliamentary Government in England”; Finer Herman “The Theory and Practice of Modern Government” 4th Edition.

Anti-Defection Law in India- A Critical Analysis whips being to procure the attendance of members to the House in order to have debates on key proceedings of the House. In short the whips perform an “exemplary judicious duty”. So what is applauded by the researcher in this research paper is that the weapon of whips must be used in such a manner as to enable the whips to perform its “exemplary judicious duty” in a much more effective manner, resulting in utilisation of whips rather than issuing them when they are totally uncalled for, thus bringing a hurdle to the spirit of democracy. In order to achieve this laudable objective, with the prevailing circumstance in the Indian polity, it is much feasible for the operation of whips in its domain effectively, if the diverging object of issuing party whips in Tenth Schedule be constrained to matters of prime importance. What is suggested is that whips issued for cases where the party’s mandate is bound to the members, where it relates to a Bill for an Amendment to the Constitution, Money bill, and the like because these bills are of national importance and dissent by a few biased individuals and their concern cannot be adhered to in view of the Bentham’s principle. Whereas party whips for voting on a much less important bill where the member tries to reflect his people’s view and bills which apprehend suffering to his constituent people, sufficient space must be provided to these representatives in order to fulfil the objectives of democracy. From the above discussion it is clear that the whips, in our process of conduct of Parliamentary proceedings must be “Subject Based” i.e. whips which control the exercising of right to vote of a member within the precincts of the House must be guided by the subjectmatter or the nature of the bill that is to be discussed. If this is done a right balance can be struck between the rights of the representatives and the unflinching party affiliation by the members towards their respective parties and their policies. By considering the above suggestion it can be asserted that the goals of democracy is celebrated in a much more

Anti-Defection Law in India- A Critical Analysis glorifying manner so as to enable our Constitution to reach a step ahead in contributing to the process of development of this great nation.

5.5 Analysis of the Powers of Speaker under the Tenth Schedule
A complete harmony between judicial review and parliamentary supremacy is an outstanding achievement by the architects of the Indian Constitution. The doctrine of an absolute balance of powers between the different wings of the Government is not feasible. Practically, someone must be empowered with having the final say in the matter of disputes. This is the reason that the system of separation of powers in the Constitution of America has failed in real practice. The judiciary in America has its dominance over other organs of the Government under the power of interpretation of the Constitution. Due to this domineering tendency, it is known as ‘safety valve’ or the ‘balance wheel’ of the Constitution. Chief Justice Hughes has aptly remarked, “The Constitution of the USA is what the Supreme Court says it is”. It has power to declare a law null and void passed by the legislature even on the ground that it is not consistent with the general principles of the Constitution. Thus, the American judiciary can poke its nose into the legislative policy like a third chamber or superchamber of the legislature.83 In England, Parliament is supreme. It is free to do what it pleases. Every wing of the Government has to heed what parliament says or does. Blackstone has rightly described the might and majesty of the British Parliament, “it can do everything that is not naturally impossible”. That is why the British judges refuse having any power “to sit as a court of appeal against Parliament.”84 With a view to avoiding either extreme, the Indian Constitution has adopted a golden mean between supremacy of American judiciary and the supremacy of British parliament. If
83 84

Tyagi B.S., Judicial Activism in India, Pg No: 4&5, 1st Edition, 2000, Sristi Publishers ibid

Anti-Defection Law in India- A Critical Analysis the judiciary rides the high horse and behaves arrogantly, the Parliament can bring an amendment in the Constitution. Pandit Nehru has rightly described this unique feature of the Indian Constitution, “No Supreme Court, no judiciary, can stand in judgment over the sole will of Parliament, representing the will of the entire community. It can pull up that sovereign will if it goes wrong, but, in the ultimate analysis, when the future of the community is concerned, no judiciary can come in the way......Ultimately, the fact remains that the legislature must be supreme and must not be interfered with by the Court of Law in such measures as social reforms.”85 Moreover, the Indian judiciary has stood by the people through thick and thin. It has ever paid due regard to the “Sovereign will” of the people but during emergency its wings were clipped and left it in trauma through 42nd Amendment but afterwards in the regime of the Janta Government it was restored to the pre-1976 position to a great extent. Now, it has gained ground by declaring itself that judicial review is a basic feature of the Constitution. It has helped the court to cover a wide range of judicial activities to do “complete justice”. As S.B. Jai Singhani says, “under Art 142 of the Constitution, the Apex Court was given an extraordinary power of the widest amplitude to pass any decree or make any order as was considered necessary for doing complete justice in any cause or matter pending before it—no matter whether the ordinary law of the land provided for such a measure.”86 If most of the countries in the world have adopted democracy, it is not because it is a perfect system or the best way to lead a contended life but because it is a better system. The term ‘democracy’ has been discussed from Plato to the present day by thinkers who tend to think of a better and just society. Hence, we have a wide variety of its connotations; yet it is to be interpreted with the tint of contemporary experience. As democracy aims at establishing
85 86

DD Basu, Introduction to the Constitution of India; Prentice Hall of India P. (Ltd.) also Delhi, 1994, Pg: 39 Article in the India Express: Dec 23, 1996

Anti-Defection Law in India- A Critical Analysis a just society, the judiciary is logically and inevitably associated with it. Both are complementary to each other. If democracy prepares the ground to realize lofty ideals of life, the court acts as a sentinel on the ‘qui vive’. How judicial review is a watch word when democracy especially in India—a land of religion and philosophy, aims at providing people all good conditions which make life worth-living.87

5.5.1 Arguments for Para 6 & Para 7 of the Tenth Schedule of the Constitution:
The drafters of the Constitution after considering the working of Constitution around the globe, with deliberations left the idea of including the doctrine of separation of power out rightly in Constitutional provisions and the same is designed in such a manner so to have its effect on all the three organs of the Government. Though the Montisque’s theory has been criticized severally for its failure in its paradigm modes, it is much appreciated when certain modulations are adhered to in its application. The Indian Constitution has profusely used this changed application of the Montisque’s separation doctrine to avoid water-tight compartmentalization of the powers of the three organs of the Government and instead used the formula of Checks and Balance in the working of our Magna Carta, thus glorifying the objects of democracy. Now coming to Para 6 and 7 of the Tenth Schedule, it is one of the examples for the working of the separation of powers in its widest amplitude. The battle for establishing supremacy over each other viz legislature over judiciary and judiciary over legislature, has been a trademark for the Separation doctrine in our Constitution. Many jurists have put forth saying that legislature somehow finds a place above judiciary, equal is the number of jurists who are the strong protagonists of supremacy of judiciary. However it judicious to strike
87

Tyagi B.S., Judicial Activism in India, Pg No: 16, 1st Edition, 2000, Sristi Publishers

Anti-Defection Law in India- A Critical Analysis balances so as to create harmony between these two organs, the parameters being the various provisions of the Constitution. Harnessing the doctrine of separation of power in the light of para 6 & 7 of the Tenth Schedule, which deals with finality of the decision of the Speaker and the bar of jurisdiction of Courts respectively demands an overall view of the position of Speaker and crawl to the rationale behind the insertion of para 7 of the Tenth Schedule. A Speaker of the House, before assuming the Office gives up his party affiliation and then leads the House. The reason for the Speaker to give up his party is quite obvious. The Speaker is the authority within the precincts of the House which he presides. The Office of a Speaker is very high and is entrusted upon a person with utmost faith and regard. Such positions cannot be dubbed with far-fetched logics of continuing party affiliation. However this can be further substantiated by throwing light on the fact that a no-confidence motion can be seeked against the Speaker, which further rushes to clear all doubts. Anti-defection law under the Indian Constitution is included within the precincts of the House because the Tenth Schedule has been annexed in the Constitution in furtherance of the amendment brought to Arts. 102 & 191 of the Constitution, and under Art 103 & 192 the decision of disqualification under Art 102 and Art 191 is entrusted with the Speaker and his decision is final, so para 6 of Tenth Schedule is very much constitutional and no question arises as regards its legality. Now targeting para 7 of the Tenth Schedule which creates a bar on the jurisdiction of the Courts with respect to decision of the Speaker on matters of disqualification of members is very much appreciated, the reason being upholding the independence of legislature and creating a scope for the application of doctrine of separation of power. If jurisdiction of courts is extended to the decisions of the Speaker, it amounts to overlapping of powers and

Anti-Defection Law in India- A Critical Analysis disturbs the separation doctrine. Also, the Speaker acts as a judge in the House, this House is constituted by the representative of the people, if review is extended to such People’s Court it amounts to insult of the House. Further, if an argument is raised against the credibility of the Speaker in making decision while discharging his duty as a Judge, by some lame logics of party affiliation and that is the reason as to why judicial review must be had on the decision of the Speaker has no legs to stand because similar allegations may find place against the Judges who are involved in the reviewing exercise. As a matter of convention, faith is always had in persons who sit as a Judge to uphold justice. Also, the Speaker would have assumed the Office only after twothirds majority in the House, so no doubt must exist as to his credibility and capability. Thus it can be concluded that anti-defection law is a piece of legislation independent of judiciary to protect the privilege of the House.

5.5.2 Arguments against Para 6 & Para 7 of the Tenth Schedule of the Constitution:
The Montisque’s Doctrine of Separation of Power allows for three independent organs of a Government to function independently, however as discussed in the previous Chapter, in the Indian context there has been slight variation in the adoption of this doctrine for our Governance. Though there is no unwarranted interference among the three organs of the State, provisions are carefully incorporated in the Constitution so has to ensure that none of the organs of the State will become Supreme in the Union. At this juncture it is important to note that the Constitution has laid down provisions to enable, the legislature, the executive and the judiciary become the three pillars of our democratic set up. The underlying object to make these organs the three pillars is that all

Anti-Defection Law in India- A Critical Analysis of them stand at the same footing and at the same time each one of them are independent of each other. One of the organs tries to establish supremacy over either of the two remaining organ results in the collapse of that organ which is subject to suppression, resulting in collapse of that pillar and the infrastructure of democracy. So the framers of the Constitution have repeatedly made sure that the three organs are vested with such powers so that the other organ/s cannot single handed or together dominate over it and thus facilitate in harmonious existence of all the three organs. Confining our discussion with respect to the existence and functioning of legislature and judiciary, it is very much relevant to discuss the role played by the same two organs in keeping a check over each other in the past. At this juncture it is pertinent to note that the term “judicial review” has no express mention in the text of the Indian Constitution. This doctrine was evolved by the Honourable Supreme Court in Minerva Mill’s case wherein the SC held that judicial review is a part of the basic structure of the Constitution and cannot be amended. From then on the SC by using its power of judicial review has always acted as the Guardian against the atrocities of the legislature in so far as trying to usurp the power given to them under the Constitution with a malafides motive of destroying the democratic polity and trying to slit the fine fabric of balance between the powers as enshrined in the Constitution. The SC has used this concept of judicial review and has always acted as the guardian of the Constitution which can be observed in the recent decision with respect to the Ninth Schedule, where the legislations were kept out from the ambit of judicial scrutiny, but the SC usurped the power of judicial review and made a path-breaking event in the Indian history thus time and again reiterating the fact that the courts are still the custodians of justice and no fraud can be played by any person on the Constitution.

Anti-Defection Law in India- A Critical Analysis The real challenge is mainly on the ground that Paragraph 7 of the Tenth Schedule, in terms and in effect sought to make a change in chapter IV of Part V and Chapter V of Part VI of the Constitution as it takes away the jurisdiction of the Supreme court under Article 136 and that of the High Court under Articles 226 and 227 of the Constitution, and, therefore, the Bill before presentation to the President for assent would require to be ratified by the legislatures of not less than one-half of the States by resolution to that effect as envisaged by the proviso to Article 368(2); that in the absence of such a ratification the whole Amendment Bill was an abortive attempt to bring about the amendment indicated therein; that even assuming that the amendment does not attract the proviso to Article 368(2), Paragraph 7 of the Schedule is liable to be struck down as it takes away the power of judicial review; that the very concept of disqualification for defection is violative of the fundamental values and principles under-lying parliamentary democracy and violates an elective representative’s freedom of speech, right to dissent and freedom of conscience and is destructive of a basic feature of the Constitution; that the investiture of power to adjudicate disputed defections in the Chairmen/Speakers, who being nominees of political parties are not obliged to resign their party affiliations, does not stand the test of an independent and impartial adjudicatory machinery and is, therefore, violative of the basic feature of the Constitution.88

5.6 Conclusion:
The anti-defection law has played a pivotal role in curtailing the defections in the democratic polity consisting of a huge number of political parties. The law being passed in as back as in the year1985 has shown a new dimension and has created a new path in securing the dream of having a stable government keeping in mind the aspirations of the crores of people who have been striving hard to make our democratic polity work by exercising their right to vote and to reassure the faith in the single largest democracy of the world.
88

Kihota Hollohon v. Zachillhu, AIR 1993 SC 412

Anti-Defection Law in India- A Critical Analysis It is well agreed that this portion of the Constitution of India is enacted in order to protect the privileges of the House, however as every other law is not static and require changes, the Tenth Schedule in the wake of securing the privileges of House and to ensure smooth conduct of Parliamentary affairs has slightly touched upon the corners of democracy and if it is properly amended to suit the changing circumstances it may assist in living the dreams of our Constitution drafters and the deciders of the faith of this great nation.

Anti-Defection Law in India- A Critical Analysis

CHAPTER: VI

Judicial development on the Tenth Schedule
6.1 Introduction:

It is well known that the Legislature makes law, the Executive executes the laws made by the Legislature and the Judiciary interprets and applies the law as the circumstance demands. After considering the Constitutional Development on the position of law with regard to Anti-Defection under the Tenth Schedule, let us look into the judicial interpretation of the same by the Indian Judiciary. The question regarding the existence of discrepancy and the interpretation of the provisions of the Tenth Schedule was considered for the first time before the Apex Court in the case of Kihota Hollohon v. Zachillhu89. The judicial examination of the Tenth Schedule was made after 6 years after, from the date of its inception in the Indian Constitution and till date it stands as a reference point or a landmark decision in the aspect of questions that are considered under Tenth Schedule especially with respect to para 2(1) (b), para 6 and para 7 of the same. In this decision, the Supreme Court answered some of the path breaking constitutional queries and gave light to certain prime rules of interpretation of the provisions of the Constitution and also the application of various doctrines will interpreting Constitution, which play such pivotal role in understanding the maze of our Constitution. While answering the question with respect to the constitutional validity of the para 2 (1) (b) it was held by the learned Judges of this case that the para 2 (1) (b) is unconstitutional and abridges the fundamental right of the Members of the Parliament or the State Legislature.
89

AIR 1993 SC 412

Anti-Defection Law in India- A Critical Analysis The right to dissent is unequivocally covered under the right to speech and expression. Para 2 (1) (b) by the virtue of use of the word “any order” expands the horizons of the orders that can be passed and any dissent by any member of such orders passed results in removal of the member by the Speaker of the House, thus curtailing the freedom of speech and expression by the Members of the House. When the finality clause under para 6 of the Tenth Schedule was considered, which specifically deals with the decision of the Speaker being final and under para 7 where the provision puts a bar on the jurisdiction of the Courts, the Apex Court held that para 7 forms the crux of the Tenth Schedule and the doctrine of severability finds no application and cannot be severed from the main text of the Tenth Schedule. When the authenticity of the authority of the Speaker to act as independent adjudicatory machinery in the process of decision making for the removal of the Member was considered by the Custodian of Justice, it well thought-out that Speaker’s decision must be subject to judicial review. From the above observations of the Supreme Court it is clear that due to the nonseverable character of para 2(1) (b) and para 7 of the Tenth Schedule, the entire 52 nd Amendment Bill is rendered unconstitutional. If the modus operandi of para 2 (1) (b) and para 7 is varied, so as to ensure freedom of speech and expression to the members and also subject the decision of the Speaker under para 6 to judicial review in furtherance to change the dimension of para 7, the goals of democracy will be cherished.

6.2 The Supreme Court in Kihota Hollohon’s Case :
The case of Kihota Hollohon v. Zachillhu90, is the landmark decision in this regard. The Constitutional Bench headed by Justice VENKATACHALLIAH, M.N. gave an
elaborate, lucid and dynamic judgment. The constitutional questions considered,
90

ibid

Anti-Defection Law in India- A Critical Analysis
the principles propounded and the interpretation of the various provision of the Constitution of India, the extracts of the same from the judgment are produced below.

By the Constitution (Fifty-Second Amendment) Act, 1985 (popularly known as the Anti-defection law) the Tenth Schedule was inserted in the constitution of India providing for disqualification of a Member of either House of Parliament or of a State Legislature found to have defected from continuing as a Member of the House. Paragraph 2 of the Tenth Schedule states that a Member of a House would incur disqualification if he voluntarily gives up his membership of the party by which he was set up as a candidate at the election, or if he without obtaining prior permission of the political party to which he belongs votes or abstains from voting in the House contrary to "any direction" issued by such political party and such voting or abstention has not been condoned by such political party within 15 days from the date of such voting or abstention; or if a Member elected otherwise than as a candidate set up by any political party joins a political party after the election; or, if a nominated Member joins any political party after expiry of six months from the date he took his seat. Paragraph 6(1) states that the question of disqualification shall be referred for decision of the Chairmen/Speaker of the House and his decision shall be final. It further provides that such question in respect of Chairman/Speaker shall be referred for decision of such Member of the House as the House may elect in this behalf. According to Paragraph 6(2) all proceedings under para 6(1) shall be deemed to be proceedings in Parliament/Legislature of a House within the meaning of Article 122/212. Paragraph 7 states that no court shall have jurisdiction in respect of any matter connected with the disqualification of a Member of a House.

A large number of petitions were filed before various High Courts as well as this Court challenging the constitutionality of the Amendment. This Court transferred to itself the

Anti-Defection Law in India- A Critical Analysis petitions pending before the High Courts and heard all the matters together. The challenge was mainly on the grounds that Paragraph 7 of the Tenth Schedule, in terms and ineffect sought to make a change in chapter IV of Part V and Chapter V of Part VI of the Constitution as it takes away the jurisdiction of the Supreme court under Article 136 and that of the High Court under Articles 226 and 227 of the Constitution, and, therefore, the Bill before presentation to the President for assent would require to be ratified by the legislatures of not less than one-half of the States by resolution to that effect as envisaged by the proviso to Article 368(2); that in the absence of such a ratification the whole Amendment Bill was an abortive attempt to bring about the amendment indicated therein; that even assuming that the amendment does not attract the proviso to Article 368(2), Paragraph 7 of the Schedule is liable to be struck down as it takes away the power of judicial review; that the very concept of disqualification for defection is violative of the fundamental values and principles underlying parliamentary democracy and violates an elective representative’s freedom of speech, right to dissent and freedom of conscience and is destructive of a basic feature of the Constitution; that the investiture of power to adjudicate disputed defections in the Chairmen/Speakers, who being nominees of political parties are not obliged to resign their party affiliations, does not stand the test of an independent and impartial adjudicatory machinery and is, therefore, violative of the basic feature of the constitution. It was also contended that the expression "any direction" in Paragraph 2(1)(b) of the Schedule might be unduly restrictive of the freedom of speech, and the right of dissent which may itself be obnoxious to and violative of constitutional ideals and values. The respondents contended that the Tenth Schedule created a non-justiciable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition and the exclusion of this area is constitutionally preserved by imparting a finality to the decision of the Speakers/Chairmen by deeming whole proceedings as those within Parliament/House of

Anti-Defection Law in India- A Critical Analysis legislature envisaged in Articles 122 and 212 and further excluding the Court’s Jurisdiction under Paragraph 7; that no question of ouster of judicial review would at all arise inasmuch as the Speaker/chairman exercising power under Paragraph 6(1) of the Tenth Schedule function not as a statutory tribunal but as a part of state’s Legislative department; and that having regard to the political issues, the subject matter is itself not amenable to judicial power but pertains to the constitution of the House and the legislature is entitled to deal with it exclusively.

The Court on 12.11.1991 gave its operative conclusions, indicating reasons to follow and by its judgment dated 18.2.1992 gave the reasons. On the questions whether: (1) The Tenth Schedule to the constitution inserted by the Constitution (Fifty-Second Amendment) Act, 1985, seeking to penalise and disqualify elected representatives is violative of the fundamental principles of Parliamentary democracy and is, therefore, destructive of the basic feature of the Constitution; (2) Paragraph 7 of the Tenth Schedule in terms and in effect brings about a change in operation and effect of Articles 136,226 and 227 of the Constitution and, therefore, the Bill introducing the amendment would require ratification as envisaged by the proviso to Article 368(2); (3) The noncompliance with the proviso to Article 368(2) would render the entire Bill vitiated and an abortive attempt to bring about a valid amendment or would Paragraph 7 alone be invalidated with the application of the doctrine of severability; (4) The Tenth Schedule created a new and non-justiciable constitutional area not amenable to curial adjudicative process; and whether Paragraph 6(1) in imparting a constitutional ‘finality’ to the decisions of Chairmen/Speakers, and paragraph 6(2) in the event of attracting immunity under Articles 122 and 212, bar judicial review;

Anti-Defection Law in India- A Critical Analysis (5) The Chairmen/Speakers satisfy the requirements of independent adjudicatory machinery or whether the investiture of the determinative and adjudicative jurisdiction in them under the Tenth Schedule would vitiate the provision on the ground of reasonable likelihood of bias. HELD:
(i)

Paragraph 7 of the Tenth Schedule to the Constitution in terms and in effect

excludes the jurisdiction of all Courts including the Supreme Court and High courts, and brings about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India, and therefore, the amendment would require ratification in accordance with the proviso to Articles 368(2) of the Constitution of India.
(ii)

The finality clause in Para 6(1) of the Tenth Schedule to the Constitution is not

decisive. Such finality, being for the statute alone, does not exclude extraordinary jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution.
(iii)

The legal fiction in para 6(2) of the Tenth Schedule brings a proceeding under

para 6(1) within the ambit of clause (1) of Article 122/212 of the Constitution, and, therefore, makes it justiciable on the ground of illegality or perversity inspite of the immunity it enjoys to a challenge on the ground of "irregularity of procedure”. JUDGMENT: As per Justice VENKATACHALLIAH, M.N (i) Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defection and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.

Anti-Defection Law in India- A Critical Analysis (ii) There is nothing in the proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that "thereupon the Constitution shall stand amended" the operation of the proviso should not be extended to constitutional amendments in a bill which can stand by themselves without such ratification. (iii) The Constitution (Fifty-Second Amendment) Act, 1985 in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provision which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be over borne by the proviso to Article 368(2) which cannot operate in that area.
(iv)

Paragraph 2 of the Tenth schedule to the constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience; nor does it violate any rights or freedom under Article 105 and 194 of the Constitution. The provisions are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.

(v)

The Tenth Schedule does not, in providing for an additional ground for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area.

(vi)

The Speakers/Chairmen while functioning under the Tenth Schedule exercise judicial power and act as Tribunal adjudicating rights and obligations under the Tenth schedule, and their decisions in that capacity are amenable to judicial review.

Anti-Defection Law in India- A Critical Analysis
(vii)

Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairman is valid. But the concept of statutory finality embodied therein does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, male fides, non-compliance with Rules of Natural Justice and perversity are concerned.

(viii)

The deeming provision in Paragraph 6(2) of the Tenth Schedule attracts immunity analogous to that in Article 122(1) and 212(1) of the constitution to protect the validity of proceedings from mere irregularities of procedure and confines the scope of the fiction accordingly.91

(ix)

Having regard to the constitutional scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen; and no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.

(x)

The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.

(xi)

A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances-a distinction which differentiates a statute from a Charter under which all statutes are made.92 In considering the validity of a constitutional amendment the changing and the changed

91 92

Spl.Ref. No.1 of 1964 (Keshav Singh’s case) [1965] 1 SCR 413 Cooley on "Constitutional Limitation" 8th Edn. Vol.I p.129

Anti-Defection Law in India- A Critical Analysis circumstances that compelled the amendment are important criteria.93The Tenth Schedule is a part of the Constitution and attracts the same canons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the other as the Constitution is one "coherent document". In expounding the process of the fundamental law the Constitution must be treated as a logical-whole.
(xii)

The distinction between what is constitutionally permissible and what is outside it is marked by a ‘hazy-gray line’ and it is the Court’s duty to identify, "darken and deepen" the demarcating line of constitutionality - a task in which some element of Judges’ own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a "transitory delusion of certitude" where the "complexities of the strands in the web of constitutionality which the Judge must alone disentangle" do not lend themselves to easy and sure formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications.94

(xiii)

A political party functions on the strength of shared beliefs. Any freedom of its Members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance-may, indeed, its very survival. Paragraph 2(1)(b) of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to "any directions" issued by the political party. The provision, however, recognising two exceptions: one when the Member obtains from the political

93 94

U.S. Supreme Court in Maxwell v. Dow 44 Lawyer’s Edition 597 at p. 605 "Theory of Torts" American Law Review 7; Justice Oliver Wendel Holmes-Free Speech and the Living

Constitution by H.L. Pohlman 1991 Edn. p.223 also see Amalgamated Society of Railway Servants v. Osborne, 1910 A.C. 87

Anti-Defection Law in India- A Critical Analysis party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission...his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs.95
(xiv)

In a sense anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct whose awkward erosion and grotesque manifestations have been the bane of the timesabove certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. This legislative wisdom and perception should be deferred to. The choices in constitutional adjudications quite clearly indicate the need for such deference.96

(xv)

The Tenth Schedule does not impinge upon the rights or immunities under Article 105(2) of the Constitution. The freedom of speech of a Member is not an ‘absolute freedom. That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any "Court" for anything said or any vote given by him in Parliament.97 A provision which seeks to exclude the jurisdiction of Courts is strictly construed.98

95

Griffith and Ryle on "Parliament, Functions, Practice & Procedure" 1989 Edn. page 119 ‘Constitutional Reform, - Reshaping the British Political System, by Rodney Brazier. 1991 Edn.pp.48-53 Jyoti Basu & Ors. v.Debi Ghosal & Ors., [1982] 3 SCR 318 H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India, [1971] 1 SSC 85,

96
97 98

referred to. Mask & Co.v.Secretary of State, AIR 1940 P.C. 105, referred to.

Anti-Defection Law in India- A Critical Analysis (xvi) As regards Paragraph 7 to the Tenth Schedule, both on its language and having regard to the legislative evolution of the provision, the legislative intent is plain and manifest. The words "no Courts shall have any jurisdiction in respect of any matter connected with the disqualification of a member" are of wide import and leave no constructional options. This is reinforced by the legislative history of the anti-defection law. The Constitution (Fifty-Second Amendment) Bill for the first time envisaged the investitute of the power to decide disputes on the Speakers or the Chairmen whereas the two similar Constitution (32nd and 48th amendment) Bills, (which had lapsed) did not contain any clause ousting the jurisdiction of the Courts. The purpose of the enactment of Paragraph 7, as the debates in the House indicate, was to bar the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution.
(xvii)

The changes in Chapter IV of Part V and Chapter V of the Part VI of the constitution envisaged by the proviso to Article 368(2) need not be direct. The change could be either "in terms of or in effect". It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is ‘in effect’ change in those provisions attracting the proviso.

(xviii)

Though the Amendment does not bring in any change directly in the language of Articles 136,226 and 227 of the constitution,, however, in effect Paragraph 7 curtails the operation of those Articles respecting matter falling under the Tenth Schedule. There is a change in the effect in Articles 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368 (2). Paragraph 7, therefore, attracts the proviso and ratification was necessary.99

99

Sri Sankari Prasad Singh Deo v. Union of India & State of Bihar, [1952] SCR 89 Sajjan Singh v. State of

Rajasthan, [1965] 1 SCR 933

Anti-Defection Law in India- A Critical Analysis
(xix)

The criterion for determining the constitutional validity of a law is the competence of the law making authority (which would depend on the ambit of the Legislative power and the limitations imposed thereon as also on mode of exercise of the power). While examining the constitutional validity of laws the doctrine of severability is applied which envisages that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must be separated from the invalid part.100

(xx)

Though the amending power in a constitution is in the nature of a constituent power and differs in content from the Legislative power, the limitations imposed on the constituent power may be substantive as well as procedural. Substantive limitations are those which restrict the field of exercise of the amending power and exclude some areas from its ambit. Procedural limitations are those which impose restrictions with regard to the mode of exercise of the amending power, e.g. the limitation requiring a special majority under Article 368(2) of the constitution is a procedural one. Both these limitations, however, touch and affect the constituent power itself, and impose a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of these limitations would go beyond the amending power and would invalidate its exercise.

(xxi)

Although there is no specific enumerated substantive limitation on the power in Article 368, but as arising from very limitation in the word ‘amend’, a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution.

100

Cooley’s constitutional Limitations; 8th Edn. Vol. 1, p. 359-360, referred to. Also see R.M.D.

Chamarbaughwalla v. Union of India, [1957] SCR 930; Shri Kesavananda Bharti Sripadagalavaru v. State of Kerala, [1973] Supp. 1 SCR; Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] 1 SCR 206 and Sambhamurthy & Ors. etc.v. State of Andhra Pradesh & Anr., [1987] 1 SCR 879, referred to.

Anti-Defection Law in India- A Critical Analysis
(xxii)

The proviso to Article 368(2) was introduced with a view to giving effect to the federal principle. Its scope is confined to the limits prescribed therein and is not construed so as to take away the power in the main part of Article 368(2).101 An amendment which otherwise fulfils the requirements of Article 368(2) and is outside the specified\ cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps.

(xxiii)

The words "the amendment shall also require to be ratified by the legislature" occurring in the proviso to Article 368(2) indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso. The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit.

(xxiv)

A composite amendment which makes alterations in the First and Fourth schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2), even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth schedules. 102 There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one-half of the States before the Bill is presented to the President for assent contained in the proviso.

101

Madras & Southern Mahratta railway company v. Bazwada Municipality, (1944) 71 I.A. 113 and Bribery Commissioner v. Pedrick Ranasinghe, 1965A.C.172

Commissioner of Income Tax, Mysore v. Indo- Mercantile Bank Ltd.(1959), Supp. 2 SCR 256
102

Anti-Defection Law in India- A Critical Analysis (xxv) The principle of severability can be equally applied to a composite amendment which contains amendment in provisions which do not require ratification by States as well as amendment in provisions which require such ratification and by application of the doctrine of severability, the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone. Only these amendments in provisions which require ratification under the proviso need to be struck down or declared invalid. (xxvi) The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable.
(xxvii) The main purpose underlying the Constitutional (Fifty-Second Amendment) Act and

introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body-politic. The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid, nor can it be said that the rest of the provisions of the Tenth schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 are therefore, severable from the rest of the provisions.
(xxviii) Democracy is a basic feature of the Constitution. Whether any particular brand or

system of Government by itself has this attribute of a basic feature, as long as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process. That may take

Anti-Defection Law in India- A Critical Analysis within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes.
(xxix)

In the Indian constitutional dispensation the power to decide a disputed disqualification of an elected Member of the House is not treated as a matter of privilege and the power to resolve such electoral dispute is clearly judicial and not legislative in nature. The power to decide disputed disqualification under Paragraph 6(1) is pre-eminently of a judicial complexion.103

(xxx)

The word "Courts" is used to designate those Tribunals which are set up in an organised State for the administration of justice. By Administration of Justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed. 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. Thus, the Speaker or the Chairman, acting under Paragraph 6(1) of the Tenth Schedule is a Tribunal.104 A finality clause is not a legislative magical incantation which has the effect of telling off Judicial Review. Statutory finality of a decision presupposes and is subject to its consonance with the statute. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. An action can be ultra vires for the

103

Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347; Special Reference 700 No. 1 of 1964, [1965] 1 SCR

413 & Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578,, referred to. Australian Boot Trade Employees Federation v. Whybrow & Co., 1910 10 CLR 266
104

Associated Cement companies Ltd. v. P.N. Sharma and Anr., [1965] 2 SCR 366 and Harinagar Sugar Mills

Ltd. v.Shyam Sunder Jhunjhunwala & Ors., [1962] 2 SCR 339

Anti-Defection Law in India- A Critical Analysis reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant considerations.105
(xxxi)

The finality clause with the word "final" in paragraph 6(1) of the Tenth schedule does not completely exclude the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. If the intendment is to exclude the jurisdiction of the superior Courts, the language would quite obviously have been different.106

(xxxii)

An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction.107The fiction in Paragraph 6(2) attracts immunity from mere irregularities of procedures. The very deeming provision implies that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker a specially designated authority. The decision under Paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule.

105

‘Administrative Law’ 6th Edn. at p. 720 & Constitutional Fundamentals, the Harmlyn Lectures, 1989 Edn., Brundaban Nayak v. Election Commission of India & Anr., [1965] 3 SCR 53; Union of India v. Jyoti

p.88
106

Prakash Mitter, [1971] 3 SCR 483; Durga. Shankar Mehra v. Reghuraj Singh, AIR 1954 SC 520 and Union of India & Anr. v. Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131
107

Anisminic Ltd. v.Foreign commission, [1969] 2 AC 147; S.E. Asia Fire Bricks v. Non-Metallic Products,

1981 A.C. 363

Anti-Defection Law in India- A Critical Analysis
(xxxiii) The scope of judicial review under Articles 136, 226 and 227 of the Constitution in

respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only, viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity. But judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quiatimet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exceptions will, however,, have to be made in respect of cases where disqualification of suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.108
(xxxiv) The office of the Speaker is held in the highest respect and esteem in Parliamentary

traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker. He is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character. It would, indeed be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the high office of the speaker, merely because some of the speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The Robes of the Speaker do change and elevate the man inside.109
108

Makhan Singh v. State of Punjab, [1964] 4 SCR 797;State of Rajasthan v.Union of India, [1978] 1 SCR 1;

Union of India v. Jyoti Prakash Mitter, (supra) and Union of India & Anr. v. Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131
109

G.V. Mavalankar ; The Office of Speaker, Journal of Parliamentary Information, April 1956, Vol. 2. No. 1

p.33; HOP, Deb. Vol.IX (1954), CC 3447-48 also see, Erskine May- Parliamentary Practice -20th edition p. 234

Anti-Defection Law in India- A Critical Analysis
(xxxv) The words "any direction" occurring in Paragraph 2(1)(b) of the Tenth Schedule require

to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context. There is no justification to give the words the wider meaning.110 (xxxvi) While construing Paragraph 2(1)(b) it cannot be ignored that under the Constitution members of Parliament as well as of the State Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House. The disqualification imposed by Paragraph 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of a member. This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations. In view of the consequences of the disqualification, i.e., termination of the membership of a House, it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) of the Tenth Schedule is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b), so that the member concerned has foreknowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction.
and M.N. Kaul and S.L. Shakdher in ‘Practice and Procedure of Parliament’ 4th Edition
110

Parkash Singh Badal & Ors. v. Union of India & Ors., AIR 1987 Punjab & Haryana 263

Anti-Defection Law in India- A Critical Analysis
(xxxvii) The purpose of interlocutory orders is to preserve in status-quo the rights of the parties,

so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency. The interlocutory orders in the instant case were necessarily justified so that, no land-slide changes were allowed to occur rendering the proceedings ineffective and infructuous.

As Per VERMA, J.:
(i)

Under the Constitution of India which delineates the spheres of jurisdiction of the legislature and the judiciary, the power to construe the meaning of the provisions in the Constitution and the laws is entrusted to the judiciary with finality attached to the decision of this Court inter alia by Article 141 about the true meaning of any enacted provision, and Article 144 obliges all authorities in the country to act in aid of this Court. It is, therefore, not permissible in our constitutional scheme for any other authority to claim that power in exclusivity, or in supersession of this Court’s verdict. Whatever be the controversy prior to this Court entertaining such a matter, it must end when the Court is seized of the matter for pronouncing its verdict and it is the constitutional obligation of every person and authority to accept its binding effect when the decision is rendered by this Court.111

(ii)

The finality clause in Para 6(1) of the Tenth Schedule to the Constitution which says that the decision of the Chairman or as the case may be, the speaker of the House shall be final is not decisive. Such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart from the decision being vulnerable on the ground of nullity. Sub-paragraph (1)

111

Cohens v. Virginia, 6 Wheat 264, 404, 5 L.Ed. 257, 291 (1821) also see State of madras v. V.G. Row, [1952]

SCR 597, referred to.

Anti-Defection Law in India- A Critical Analysis alone is, therefore, insufficient to exclude the extra-ordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court.
(iii)

The ambit of a legal fiction must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition. In construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used. It cannot also be extended by importing another fiction. The legal fiction in sub-paragraph (2) of para 6 of the Tenth Schedule serves a limited purpose and brings the proceedings under sub-paragraph (1) thereof within the ambit of clause (1) of Article 122 or Clause (1) of Article 212, and, therefore, there is no occasion to enlarge its scope by reading into it words which are not there and extending it also to clause (2) of these Articles.112

(iv)

A matter falling within the ambit of clause (1) of either of the two Article 122 or 212 is justiciable on the ground of illegality or perversity in spite of the immunity it enjoys to a challenge on the ground of "irregularity of procedure".

(v)

The decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose which is not permissible. That being so, the matter falls within the ambit of clause (1) only of Article 122 and 212 as a result of which it would be vulnerable on the ground of illegality and perversity and therefore, justiciable to that extent.113

112

Commissioner of Income-tax v. Ajax Products Ltd., [1965] 1 SCR 700 Spl. Ref. No. 1 of 1964 (Keshav Singh’s case) [1965] 1 SCR 413,

113

Anti-Defection Law in India- A Critical Analysis (vi) The words in Paragraph 7 of the Tenth Schedule with its non-obstante clause ‘notwithstanding anything in this Constitution’ followed by expression ‘no court shall have any jurisdiction’, are very wide and ordinarily mean that this provision supersedes any other provision in the Constitution, and leave no doubt that the bar of - jurisdiction of Courts is complete excluding also the jurisdiction of the supreme court and the High courts under Articles 136, 226 and 227 of the Constitution respectively. Further, the expression ‘in respect of any matter connected with the disqualification of a Member of a House under this Schedule’ is wide enough to include not merely the intermediate stage of the proceedings relating to disqualification but also the final order on the question of disqualification made under paragraph 6. This conclusion is reinforced by the finality clause and deeming provision in para 6 of the Tenth Schedule and by the legislative history of the absence of such a provision excluding the Court’s jurisdiction in the earlier two Bills which had lapsed. Para 7 of the Tenth Schedule is, therefore, unconstitutional and to that extent at least the Constitution does not stand amended in accordance with the Bill seeking to make the constitutional amendment.
(vii)

Distinction has to be drawn between the abridgment or extinction of a right and restriction of the remedy for enforcement of the right. If there is an abridgment of extinction of the right which results in the disappearance of the cause of action which enables invoking the remedy and in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy. On the other hand, if the right remains untouched so that a grievance based thereon can arise and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished so that cause of action cannot be enforced for want

Anti-Defection Law in India- A Critical Analysis of that remedy, then the change made is in the remedy and not in the subsisting rights.114 (viii) The instant case in unequivocal terms, is that of destroying the remedy by enacting para 7 of the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution. But for para 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Article 226 and 227 would remain unimpaired to challenge the decision under para 6, as in the case of decisions relating to other disqualification specified in clause (1) of Articles 102 and 191, which remedy continues to subsist.
(ix)

The extinction of the remedy alone without curtailing the right, since the question of disqualification of a member on the ground of defection under the Tenth Schedule does require adjudication on enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in Chapter V in Part VI of the Constitution. The Constitution (Fifty-Second Amendment) Bill, therefore, attracted the proviso to Article 368(2) requiring ratification by the specified number of State legislatures before its presentation to the President for his assent.

(x)

The proviso to Article 368(2) of the Constitution contains a constitutional limitation on the amending power; and prescribes as a part of the special procedure, prior assent of the State Legislatures before presentation of the Bill to the President for his assent in the case of the relevant Bills. This is a condition interposed by the proviso in between the passing of the Bill by the requisite majority in each House and presentation of the Bill to the President for the assent, which assent results in the Constitution automatically standing amended in accordance with the terms of the Bill. The Bills

114

Sri sankari Prasad Singh Deo v. Union of India & State of Bihar, [1952] SCR 89 and Sajjan Singh v. State of

Rajasthan, [1965] 1 SCR 933, explained

Anti-Defection Law in India- A Critical Analysis governed by the proviso, therefore, cannot be presented to the President for his assent without the prior ratification by the specified number of State legislatures.
(xi)

The consequence of the Constitution standing amended in accordance with the terms of the Bill on assent by the President, which is the substantive part of Article 368, results only when the Bill has been presented to the President for his assent in conformity with the special procedure after performance of the conditions precedent, namely, passing of the Bill by each House by the requisite majority in the case of all Bills; and in the case of Bills governed by the proviso, after the Bill has been passed by the requisite majority in each House and it has also been ratified by the legislature by not less than one-half of the States. Non-compliance of the special procedure prescribed in Article 368(2) cannot bring about the result of the Constitution standing amended in accordance with the terms of the Bill. Kesavananda Bharati v. State of Kerala, [1973] Supp.1 SCR, relied on.

(xii)

The ordinary role of a proviso is to carve out an exception from the general rule in the main enacting part. A Bill falling within the ambit of the proviso to cl.(2) of Article 368 is carved out of the main enactment in clause (2) as an exception on account of which it cannot result in amendment of the constitution on the President’s assent without prior ratification by the specified number of State legislature.

(xiii)

The entire Tenth Schedule is enacted in exercise of the constituent power under Article 368, not merely para 7 therein, and this has been done without following the mandatory special procedure prescribed. It is, therefore, the entire Constitution (Fifty Second) Amendment Bill and not merely para 7 of the Tenth Schedule which required prior ratification by the State of legislatures before its presentation to the President for his assent, it being a joint exercise by the parliament and the State Legislatures. The stage of presentation of the Bill to the President for his assent not having reached, the

Anti-Defection Law in India- A Critical Analysis President’s assent was non est and it could not result in amendment of the Constitution in accordance with the terms of the Bill. It is not a case of severing the invalid constituent part from the remaining ordinary legislation.
(xiv)

The doctrine of severability applies in a case where an otherwise validly enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a viable whole. This doctrine has no application where the legislation is not validly enacted due to non-compliance of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power. The doctrine does not apply to a still born legislation. It is not possible to infuse life in a still born by any miracle and deft surgery even though it may be possible to continue life by removing a congenitally defective part by surgical skill.115

(xv)

Severance of para 7 of the Tenth Schedule could not be made for the purpose of ratification or the President’s assent and, therefore, not such severance can be made even for the ensuing result. If the President’s assent cannot validate para 7 in the absence of prior ratification, the same assent cannot be accepted to bring about a different result with regard to the remaining part of the Bill.

(xvi)

The test whether the enactment would have been made without para 7 indicates that the legislative intent was to make the enactment only with para 7 therein and not without it, otherwise the enactment did not require the discipline of Article 368and exercise of the constituent power and mode of ordinary legislation could have been resorted to in accordance with sub-clause (e) of clause (1) of Article 102 and 191, which would render the decision on the question of disqualification on the ground of defection also

115

The Bribery Commissioner v. Pedrick Ranasinghe, [1965] AC 172

Anti-Defection Law in India- A Critical Analysis amenable to judicial review as in the case of decision on questions relating to other disqualification.116 (xvii) Democracy is a part of the basic structure of our Constitution, and rule of law; and free and fair elections are basic features of democracy, One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority. It is only by a fair adjudication of such disputes relating to validity of elections and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured.
(xviii)

In the democratic pattern adopted by our Constitution, not only the resolution of election dispute is entrusted to a judicial tribunal, but even the decision on questions as to disqualification of members under Articles 103 and 192 is contemplated by an independent authority outside the house, namely, President/Governor in accordance with the opinion of the Election commission,, all of whom are high constitutional functionaries with security of tenure, independent of the will of the House.

(xix)

Sub-clause (e) of clause (1) in Articles 102 and 191 which provide for enactment of any law by the Parliament to prescribe any disqualification other than those prescribed in the earlier sub-clauses of clause (1), clearly indicates that all disqualifications of Members were contemplated within the scope of Articles 102 and 191. All disqualification including disqualification on the ground of defection, in our constitutional scheme, are, therefore, different species of the same genus, namely, disqualification, and the constitutional scheme does not contemplate any difference in their basic traits and treatment; and were meant to be decided by an independent authority outside the House such as the President/Governor, in accordance with the opinion of another similar independent constitutional functionary, the Election

116

R.M.D. Chamarbaughwalla v. The Union of India, [1957] SCR 930, relied on.

Anti-Defection Law in India- A Critical Analysis commission of India, who enjoys the security of tenure of a Supreme Court Judge with the same terms and conditions of office. The Speaker’s office is undoubtedly high and has considerable aura with the attribute of impartiality. This aura of the office was even greater when the Constitution was framed and yet the framed and yet the farmers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of Members to the Speaker; and provision was made in Article 103 and 192 for decision of disputes by the President/Governor in accordance with the opinion of the Election commission. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker’s decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution.
(xx)

The Speaker being an authority within the House and his tenure being dependent on the will of majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes Rule of law has in it firmly entrenched natural justice, of which, Rule against Bias is a necessary concomitant; and basic postulates of Rule against Bias are : Nemo judex in cause sua - ‘A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased’; and ‘it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’.

(xxi)

It is the Vice-President of India who is ex-officio Chairman of the Rajya Sabha and his position being akin to that of the President of India, is different from that of the Speaker. The observations relating to the office of the speaker do not apply to the chairman of the Rajya Sabha that is the Vice-President of India.

Anti-Defection Law in India- A Critical Analysis (xxii) Since the conferment of authority is on the Speaker and the provision being unworkable for the Lok sabha and the State Legislatures, cannot be sustained, even without para 7, the entire Tenth Schedule is rendered invalid in the absence of any valid authority for decision of the dispute notwithstanding the fact that this defect would not apply to the Rajya sabha alone whose Chairman is the Vice-President of India. The statutory exception of doctrine of necessity has no application since designation of authority in the Tenth Schedule is made by choice while enacting the legislation instead of adopting the other available options. From the observations made by the Custodian of Justice with respect to the position of law with regard to the law concerning ‘defection’, it is clear that para 2 (1) (b) of the Tenth Schedule is unconstitutional and para 7 of the Tenth Schedule which ousts the jurisdiction of courts is held invalid. The present nature of law is that the decision of the Speaker is subject to the jurisdiction of Courts and thus ensuring judicial review and invalidating para 6 of the Tenth Schedule.

6.4 Developments subsequent to Kihota Hollohon’s Case:
The rule of precedence is well incorporated in the Indian legal system, according to Art 144 of the Indian Constitution, the judgment of the Supreme Court are binding on the lower Courts. The researcher tries to analyze this application of Art 144 of the Indian Constitution in the case of judgment delivered in the Kihota Hollhon’s case. In this exercise, the researcher examines the various judicial interpretations, in the wake of Kihota Hollohon’s decision. In Manilal Singh v. Dr H. Borobabu Singh117, the respondent, Speaker of a House was charged with contempt proceedings. It was observed that in spite of the clear decision of this Court that an order made under
117

the

Tenth Schedule by the Speaker relating to the

AIR 1994 SC 505

Anti-Defection Law in India- A Critical Analysis disqualification of a Member of the Legislative Assembly is subject to judicial review and the Speaker while making an order under the Tenth Schedule acts merely as a statutory authority amenable to the court's jurisdiction in that capacity, the contemner continued to resist the implementation of such orders made by this Court. Further the Supreme Court held that it is the constitutional duty which requires us to make this order, to uphold the majesty of law and justify the confidence of the people, that no one in this country above the law and governance is not of men but of the 'rule of law'. It is unfortunate that this action has to be taken against a person who happens to be the Speaker of a Legislative Assembly, but that does not permit us to apply the law differently to him when he has wilfully and contumaciously driven the Court to this course. We must remind ourselves that the 'rule of law' permits no one to claim to be above the law and it means 'be

you ever so high the law is above you'. It was said long back: 'to seek to be wiser than the laws, is forbidden by the law'. The Supreme Court while reiterating the principle as laid down in Kihota Hollohon’s case observed: “the Speaker while deciding the question of disqualification of a Member of the Legislative Assembly under the Tenth Schedule to the Constitution acts as a statutory authority, in which capacity the Speaker's decision is subject to

judicial review by the High Court and this Court”. Again, in the year 1998, the Supreme Court while deciding the matter between Mayawati v. Markandeya chand,118 it was observed by this Court that Paragraph 6 of the X Schedule renders the decision of the Speaker final. The Constitution Bench considered its validity in Kihoto Hollohan case. In the majority judgment: it was held that the finality clause
118

AIR 1998 SC 3340

Anti-Defection Law in India- A Critical Analysis in Paragraph 6 does not completely exclude the jurisdiction of the court under Articles 136,226 and 227 of the Constitution. However, the Bench held that the scope of judicial scrutiny is limited to ascertain whether the decision of the Speaker is vitiated by jurisdictional errors viz. "infirmities based on violation of constitutional mandate malafides, noncompliance with rules of natural justice and perversity." The suggestion that if the conclusion reached by the Speaker is a possible conclusion it stands insulated from any outside interference including by judicial exercise may lead to the situation that, no matter, however illegal the order may be, it cannot be touched if its author is the Speaker. Such immunity cannot be conceded to any constitutional functionary to be above law or to have unfettered jurisdiction to pass unreasonable orders with immunity. The test cannot be whether it is possible for the Speaker to record such a conclusion, because the very fact that the Speaker passed an order itself is the instance to show that it is possible. The test is whether the conclusion or the finding made by the Speaker is so unreasonable or so unconscionable that no tribunal could have arrived at it on the given materials. Parameters for scrutinising what is unreasonable are, of course, nebulous. What appears to be reasonable to one man may be unreasonable to another and vice versa. However, the test of perversity has now bogged down to this : No conclusion can be dubbed as perverse unless the unreasonable is of such a dimension that no authority vested with the jurisdiction would have come to such a conclusion. The power the judicial review viz a viz the order of the Speaker under Paragraph 6(1) of the Xth Schedule is confined to jurisdictional errors only based on violation of constitutional mandate, mala fides, non compliance of rules of natural justice and perversity. It is not necessary to consider the question whether this Court should decide the entire matter here in the event of setting aside the order of the Speaker or remand the matter for

Anti-Defection Law in India- A Critical Analysis fresh disposal by the Speaker in accordance with the judgment of this Court. However, for the sake of completion, it is necessary to express opinion on that question too. It is not the function of this Court to substitute itself in place of the Speaker and decide the questions which have arisen in the case. When the Xth Schedule has expressly constituted the Speaker or the Chairman as the case may be to decide the question of disqualification and attach finality thereto. It is not for this Court to consider the facts and decide the said question by substituting itself in the place of the Speaker. If the order of the Speaker is set aside on any of the grounds mentioned in `Hollohan' case by exercising the power of limited judicial review, the consequential course to be adopted is to leave the matter to the Speaker to decide afresh in accordance with law. In Jagjit Singh v. State of Haryana119, the Supreme Court relying on the decision and principles laid down in Kihota Hollohon’s case as observed as follows: The Speaker, while exercising power to disqualify members acts as a Tribunal and though validity of the orders, thus, passed can be questioned in the writ jurisdiction of this Court or High Courts, the scope of judicial review is limited. The orders can be challenged on the ground of ultra vires or malafides or having been made in colourable exercise of power based on extraneous and irrelevant considerations. The order would be a nullity if rules of natural justice are violated. The question whether reasonable opportunity has been provided or not cannot be put in a strait-jacket and would depend on the fact situation of each case. While considering the plea of violation of principles of natural justice, it is necessary to bear in mind that the proceedings, under the Tenth Schedule, are not comparable to either a trial in a court of law or departmental proceedings for disciplinary action against an employee. But the

119

AIR 2007 SC 590

Anti-Defection Law in India- A Critical Analysis proceedings here are against an elected representative of the people and the judge holds the independent high office of a Speaker. The scope of judicial review in respect of proceedings before such Tribunal is limited. Howsoever limited may be the field of judicial review, the principles of natural justice have to be complied with and in their absence, the orders would stand vitiated. The yardstick to judge the grievance that reasonable opportunity has not been afforded would, however, be different. Further, if the view taken by the Tribunal is a reasonable one, the Court would decline to strike down an order on the ground that another view is more reasonable. The Tribunal can draw an inference from the conduct of a member, of course, depending upon the facts of the case and totality of the circumstances. The pattern that can be observed is though the prepositions of the Kihota Hollohon’s is very well applied in the subsequent case, the Custodian of Justice tries to look into the critical appraisals of its own judgment; viz in one of the case it observes that even though judicial review is seeked in cases of perversity, the parameters of determine the perversity is not highlighted. So it is applauded that a holistic view is taken on the scenario and the decisions of the Speakers must be made subject to judicial review.

6.5 Conclusion:
Instead of adhering to some semantic confusion that exists in the text of the Tenth Schedule, it is wise to clinch to the interpretation given in the Kihota Hollohon’s case by the Indian Judiciary. Though no attempt is made by the Legislature to change the law governing defection even after years of pronouncement of the decision which aborts the constitutional validity of the Tenth Schedule, only para 7 has been given the effective to by bringing the decision of the Speaker to judicial review as per Art 141 of the Indian Constitution. However with regard to para 2 (1) (b), the modus operandi of the provision still exists as it stood before the delivery of the decision in Kihota Hollohon. Even till date political

Anti-Defection Law in India- A Critical Analysis parties are exercising dominance over the members for violation of any order passed by it, which even though is considered unconstitutional, Art 141 of the Constitution is also rendered futile. It is thus commended that Tenth Schedule must be rigorously amended so as to fulfil the need of the hour.

Anti-Defection Law in India- A Critical Analysis CHAPTER VII

CONCLUSION
The 52nd Amendment to the Indian Constitution with regard to anti-defection law has been hailed as a bold step to clean public life in India, but, in course of time, certain defects therein have become apparent which have very much compromised the effectiveness of the law to achieve its objectives. Defections and splits in parties have always been a feature of Indian Politics. It is possible, however, to suggest from what is enacted in the Tenth Schedule that the party structure is now being pre-empted and treated as basic and fundamental, for upon breach of the party mandate in the matters of vote or abstaining from voting or resignation, the representative loses his seat itself. Party supremacy, thus, is accepted as a principle throughout, in the Tenth Schedule, which has wide ranging ramifications which do not appear to have been kept in view while enacting amendment to the Constitution. The possible merit or principle appears to be to instil discipline to erect and fortify party-system and stabilise it and avoid and discourage unethical conduct of cross-voting or floor-crossing for various inducements and consideration. With all these laudable objects, which are not very much explicitly in the text of the Schedule, inherently the scheme is in conflict with the initial scheme of our Constitution pattern that relies upon individual representative and confers unimpeded freedom upon him. Curtailment of liberty and shift in the point of reference is likely to raise not only intricate debates but direct and indirect questions of our basic philosophy. Similarly, institutions may undergo long range changes and even the democratic set-up may suffer erosion by emergence of autocratic apparatus of party machine. This is more so for penalty

Anti-Defection Law in India- A Critical Analysis follows by reason of incurring disqualification on the ground of what is called “defection” that cuts at the root of free dissent and independent judgment of an elected representative. That also puts Parliament under the shadow of party and its members echoing party views like puppets. Legislative discussion and its results may become farcical and counterproductive. Inherently, the good of liberty and freedom would always be at stake. This may foreshadow a rise of autocracy in the garb of democracy and loss of representation of people. However the anti-defection law has played a pivotal role in curtailing the defections in the democratic polity consisting of a huge number of political parties. The law being passed in as back as in the year 1985 has shown a new dimension and has created a new path in securing the dream of having a stable government keeping in mind the aspirations of the crores of people who have been striving hard to make our democratic polity work by exercising their right to vote and to reassure the faith in the single largest democracy of the world. It is well agreed that this portion of the Constitution of India is enacted in order to protect the privileges of the House, however as every other law is not static and require changes, the Tenth Schedule in the wake of securing the privileges of House and to ensure smooth conduct of Parliamentary affairs has slightly touched upon the corners of democracy and if it is properly amended to suit the changing circumstances it may assist in living the dreams of our Constitution drafters and the deciders of the faith of this great nation. 7.1 GUIDELINES:
1) In Para 2(1) (b) under the Tenth Schedule, the words “any order” must be removed so

as to make this provision in concurrence to the principles of democracy. Thus helping in glorifying the meaning of the term “representative government”. Instead clear indication must be given as to when a party can issue Whips.

Anti-Defection Law in India- A Critical Analysis 2) The term “subject based whips” must confine itself to issuing party mandates for discussion in the House with respect to important matters like Constitutional Amendment Bill, Finance Bill etc. Enough room must be provided for the Members to express their will in other matters other than those mentioned under the class of “subject based whips”. 3) The Whips so issued by the political parties must exist with respect to seeking attendance of the Members to the House where the whips is not classified under subject based whips.
4) In order to effectuate the ratio in Kihota Hollohon’s case with regard to the judicial

review of the Speaker’s decision, a time limit must be prescribed for the Speaker to deliver his decision.

7.2 SUGGESTIONS:
1) Instead of the words “any order” it may be replaced with “subject based whips”, so

that the objective of the Tenth i.e., to maintain healthy Parliamentary debate and concern of the Governing party can be better highlighted without prejudicing the freedom of speech and expression of the Members. In doing so the provision is rendered constitutional validity.
2) Even though the Speaker’s decision is brought under the watch glass of Judiciary after

pronouncement of the Kihota Hollohon’s case, it is suggested that a time limit must be prescribed for the Speaker to give his decision. If no time period is prescribed for the Speaker to give his decision, then the decision in the Kihota Hollohon’s case is

Anti-Defection Law in India- A Critical Analysis rendered futile. This is so because the Speaker will be under no obligation to give his decision and the scope of judicial review is again narrowed down. 3) After having an insight into the position of law with respect to anti-defection law in other Common Wealth countries, it is suggested that the Tenth Schedule should be amended in such a way to make it less complicated and keeping at bay all the ambiguities that exists in the current law on defection.

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