Need for Defection in Anti Defection | Important Acts and Laws for Judiciary Exams PDF Download

Introduction

• Defection Laws in India: In recent times, Defection Laws have been a significant concern due to the blatant violation of defection rules by leaders in the country. Since independence, defection has remained a contentious issue in India.
• Case Study: Madhya Pradesh Government Crisis (March 2020): In March 2020, a crisis unfolded in the Madhya Pradesh Government when Jyotiraditya Scindia and 22 Member Legislative Assembly (MLAs) resigned, leading to a severe setback for the Congress party. The Congress failed the floor test, allowing the BJP, with the majority of seats, to assume power. Subsequently, Shivraj Singh Chauhan was elected as the Chief Minister of Madhya Pradesh.
• Recent Developments in Rajasthan: Recently, the Deputy Chief Minister of Rajasthan, Sachin Pilot, and 18 other dissident leaders of the Congress party received notices for defection. The notices were issued for their disqualification from the state assembly due to defying the party whip by not attending two legislature meetings. The matter is currently under adjudication in the High Court of Rajasthan.

Defection Laws

• Recently, the Deputy Chief Minister of Rajasthan, Sachin Pilot, along with 18 other dissident leaders of the Congress party, received notices for defection. 
• The notices were issued to seek their disqualification from the state assembly due to their failure to attend two legislative meetings, defying the party whip. The matter is currently under adjudication in the High Court of Rajasthan.

Understanding Defection

• Defection is defined as the act of leaving one's own country or political party to join an opposing one.
• In a 1967 committee report on defection, a defector was described as an elected member of the legislature who had been allocated the reserved symbol of a political party. Such a person can be considered to have defected if, after being elected to a legislative body, they voluntarily renounce allegiance or association with the political party, provided that this decision is not due to the party's own actions.

Developments in Defection Laws

• Defection laws have evolved through various precedents to address instances of members switching political allegiances.
• These laws aim to maintain the integrity of the political process and prevent arbitrary party-switching for personal gain.

Punitive Sanctions for Defection

• Penalties for defection may include disqualification from holding office, loss of privileges, and other punitive measures.
• Such sanctions are essential to uphold the principles of democratic governance and ensure accountability among elected representatives.

Anti-Defection Laws

• Definition of Defector: A defector is described as an elected member of the legislature who has been allocated the reserve symbol of a political party. If the member voluntarily gives up allegiance or association with the party without the party's decision, they are considered to have defected.
• Understanding Anti-Defection Laws: Anti-defection laws outline the circumstances under which a Member of the Legislative Assembly or Parliament can lose their privileges as a party's elected representative and face disqualification. These provisions are detailed in the Tenth Schedule of the Indian Constitution.
• Role of the Judiciary: The Indian Judiciary has consistently intervened through judicial pronouncements to establish guidelines aimed at fostering healthy competition and improved political practices among parties.

Key Points of the Anti-Defection Law

According to the law, a Member of Parliament or Legislative Assembly can face disqualification if they:

• Voluntarily give up membership of their political party
• Vote or abstain from voting against the party's directives
• Defy the party's instructions regarding voting
• Join another party after being elected without resigning from their current party

Law of Anti-Defection in India 

When a Member of Parliament or Member of Legislative Assembly:

• Chooses to give up membership of their party voluntarily.
• Votes against party directions or abstains from voting, going against party instructions.
• Decides to join another political party.

 Being involved in any of the above actions leads to disqualification from the party, resulting in the loss of their elected position as an MP or MLA.  

Anti-Defection Framework in the Indian Constitution 

• The legislation regarding Anti-Defection was initiated by Rajiv Gandhi and received unanimous approval in both parliamentary houses. It officially became effective on 18th March 1985, following the president's endorsement.
• The inclusion of Anti-Defection provisions was made through the Tenth Schedule of the Constitution by the 52nd Amendment in 1985. These clauses outline the disqualification criteria for Members of Parliament as per Article 102(2) and Members of Legislative Assemblies in accordance with Article 191(2). Legislators risk disqualification if found violating the rules specified in the Tenth Schedule.

Key Points on Anti-Defection Laws

• Introduction: The Anti-Defection provision was introduced through the Tenth Schedule of the Constitution by the 52nd Amendment in 1985. It allows for the disqualification of Members of Parliament under Article 102(2) and Members of the Legislative Assembly under Article 191(2) if found guilty of defection.
• History and Importance: The term "Aaya Ram Gaya Ram" originated in 1967 when Gaya Lal, a Congress leader, switched between Congress and the Janata Party multiple times. This led to a significant number of defections and instability in the political system.
• Extent of Defections: According to a journal titled "Aya Ram Gaya Ram - The Politics of Defection" by the Indian Law Institute in 1979, between 1967 and 1969, over 1500 party defections and 313 independent candidate defections occurred across 12 states in India. By 1971, more than half of the legislature had changed party affiliations.
• Defection Statistics in India: In the publication "Aya Ram Gaya Ram - The politics of defection" by the Indian Law Institute in 1979, it was highlighted that between 1967 and 1969, over 1500 party defections and 313 independent candidate defections occurred across 12 states. By 1971, over 50% of the legislature had switched party affiliations.
• Understanding "Horse Trading": "Horse Trading" is a common term associated with defection, indicating the practice of legislators moving from one party to another in exchange for monetary benefits. Various reasons prompt such party shifts.
• Need for Legislative Provisions: The prevalent circumstances necessitated the government to introduce statutory measures within the constitution to impose punitive actions against individuals engaged in such actions.
• Exceptions to Anti-Defection Rules:
  • Split/Merger Clause: The Anti-Defection law does not apply in cases where 1/3rd or more of a party's members split or merge with another party.
  • Amendment Details: The 91st constitutional amendment revised this provision, changing the requirement from 1/3rd to 2/3rd of a party's members for a merger. The amendment aimed to curb mass defections by legislators by removing the split provision and increasing the threshold for a valid merger.

Disqualification under Anti-Defection Laws

• Anti-Defection laws do not apply when 1/3 or more members of a party split/merge with another party.
• Previously, only 1/3 members were needed for a split, but the 91st amendment changed this to require 2/3 members for a merger.
• The amendment aimed to prevent mass defections by legislators.
• Sanctions were introduced for those violating the rules.

Bar on Court Jurisdiction under Defection Laws

• Para 7 of the Tenth Schedule restricts court jurisdiction in member disqualification cases.

Jurisdiction of Court and Basic Structure Doctrine

• Parliamentary Limitations: The Tenth Schedule restricts the court's authority concerning the disqualification of a house member. This rule clashes with the basic structure doctrine, established in the landmark "Kesavananda Bharati" case. According to this doctrine, certain fundamental aspects of the Constitution are immutable, including Judicial Review.
• Judicial Review Importance: Courts must interpret the Tenth Schedule liberally to retain review powers over the Speaker's decisions. Review authority is crucial to ensure the accuracy of disqualification rulings, especially when the Tenth Schedule limits court intervention.
• Legal Precedent: In the case of "Kihoto Hollohon v Zachillu" (1992), the Supreme Court clarified that the Tenth Schedule's Paragraph 7 overly restricted legal remedies under Article 136, 226, and 227. To address this, Article 368(2) was invoked, allowing judicial review over the Speaker's decisions on member disqualification.

The Context of Jurisdiction under the Tenth Schedule

• In the case of "Kihoto Hollohon v Zachillu" in 1992, the Supreme Court deliberated on the restrictions imposed by the Tenth Schedule on court jurisdictions.
• It was clarified that Paragraph 7 of the Tenth Schedule excluded remedies available under Articles 136, 226, and 227 of the Constitution, rectified by invoking sub clause 2 of Article 368.
• The Chairman and Speaker's decisions on member disqualification were deemed valid but subject to judicial review.
• The Speaker's decisions were acknowledged as legal and binding but open to scrutiny by the courts.

Examination of Freedom of Speech and Expression

• The Constitution guarantees the right to freedom of speech and expression under Article 19, subject to specified restrictions.
• This right extends to all citizens, including legislators, providing a basis to question the validity of Paragraph 2 of the Tenth Schedule.
• In the Kihoto Hollohon case, the Supreme Court affirmed that the Tenth Schedule does not infringe upon the rights of elected members, safeguarding Article 105 and 195 of the constitution.
• The provisions of the Tenth Schedule were deemed beneficial, aiming to fortify the foundation of Indian parliamentary democracy by discouraging unethical political defections.

Regarding Disqualification on the Ground of Voluntary Giving Up of Membership

• Disqualification Criteria: This section of the Anti-Defection law focuses on voluntary giving up of membership by the members.
• Legal Interpretation: In the case of Ravi S Naik v Union of India (1994), the Supreme Court broadened the understanding of "resignation by voluntarily giving up the membership".
• Interpretation by the Supreme Court: The court ruled that a member can be deemed to have voluntarily given up party membership based on their actions, even without a formal resignation.
• Behavioral Indicators: Even in the absence of a written resignation, a member's conduct can indicate a voluntary relinquishment of party membership.

Resignation from Political Party Membership

• Legal Perspective on Resignation: In the legal case of Ravi S Naik v Union of India (1994), the Supreme Court emphasized a broad view of "resignation by voluntarily giving the membership." The court stated that a person can voluntarily relinquish their membership of a political party even without formally resigning. It can be inferred from a member's conduct that they have given up their party membership.
• Express or Implied Resignation: As seen in the case of G. Viswanathan & Ors. v. Hon'ble Speaker Tamil Nadu Legislative Assembly & Ors in 1996, the act of resigning from a political party can be expressed or implied. For instance, if a person who was expelled from the party that nominated them as a candidate joins a new party, it signifies a voluntary resignation from the former party.

 Powers of court to review the decision of the speaker

• The Speaker is not completely shielded from judicial review, as the immunity is granted by Para 6 of the Tenth Schedule, as confirmed in the case of Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors. (2007).
• In the mentioned case, the speaker did not investigate the split and acknowledged it based on a claim by the members. The court emphasized that neglecting a disqualification petition is not just an irregularity but a breach of constitutional obligations.

 Defiance of party whip

What is a Party Whip?

• A party whip is an instruction given by political parties to vote in line with the party's stance in a legislature.

In the case of Shri Rajeev Ranjan Singh (Lalan) v Dr PP Koya JD(U)(2009):

• Dr. Koya contravened a party whip that mandated him to vote against a motion of confidence. He abstained from voting by being absent, and his purported illness was not considered sufficient justification for his absence from the house. Therefore, there must be a valid reason to convince the speaker regarding a member's absence from the house when obligated by the whip.

Case: Shri Rajeev Ranjan Singh (Lalan) v Dr PP Koya JD(U)(2009)

• In this case, Dr. Koya violated a party whip by abstaining from voting, leading to his absence being questioned.
• Evidence of his illness was deemed insufficient to justify his absence without voting.
• It emphasizes the importance of providing a valid reason for absence when bound by a party directive.

Burden of Proof

• When allegations are made against a member's loyalty to the party, the burden of proof lies on the accused legislator.
• Referenced in the Ravi S Naik case by the Supreme Court.

Limitation on Scope of Inquiry of the Speaker

• Illustrated in the Shrimanth Balasahib Patil v Hon'ble Speaker of Karnataka Legislative Assembly case.
• 15 MLAs resigned from their parties, leading to government dissolution and subsequent MLA disqualification.
• The Speaker's authority was limited to disqualifying the MLAs until the assembly's term ended in 2023.

Supreme Court Observations on MLA Disqualification

In this case, 15 MLAs resigned from the Congress and Janata Dal Secular from their respective seats, leading to the collapse of the government. The Speaker disqualified the MLAs until the assembly's expiry in 2023.

Observations by the Supreme Court

• The Speaker's role is limited to verifying if a resignation was voluntary or genuine, without considering external factors. The Speaker's decision can be reviewed judicially. The Speaker cannot set the disqualification period.
• The resignation does not prevent the Speaker from disqualifying a member. The Speaker lacks the authority to stipulate the disqualification duration.
• Horse trading and corrupt practices associated with defection and change of loyalty for allure of office or inappropriate reasons persist, leading to unstable governments and depriving citizens of reliable governance. To curb such undemocratic actions, specific measures need reinforcement to discourage and prevent them.

Grounds for Review of the Decision of the Speaker

• Supreme Court guidelines highlight the grounds for reviewing the speaker's decision.
• If the decision violates constitutional mandates.
• If the decision is made in bad faith (mala fide).
• If the speaker's decision is biased or unreasonable (perverse).
• If the decision disregards principles of natural justice and demonstrates perversity.

Lacunas in Defection Machinery

• Internal party conflicts can trigger disputes among members, stemming from disagreements with senior leaders or power struggles. Such disputes often prompt elected members to defect to the opposition, jeopardizing the essence of democracy. A stable government is crucial for the democratic fabric of a nation. Frequent governmental crises foster public distrust and pose significant challenges.
• The Causes of Intra-Party Rivalry: The competition within a political party can stem from various factors, such as disagreements with senior leaders' viewpoints or power struggles. This internal discord often leads elected representatives to defect to the opposition, jeopardizing the stability crucial for a functional democracy.
• Significance of Anti-Defection Laws: The Anti-Defection laws were introduced in the Indian Constitution to uphold fairness and integrity within the parliamentary system. Elected officials are expected to remain loyal to the party that nominated them, as switching sides frequently can result in governmental collapse and political turmoil.
• Importance of Adherence to Party Principles: It is imperative for legislators to adhere to party directives and values to maintain political stability and foster a functional democracy. Disregarding party loyalty can lead to governmental upheaval and a loss of public trust.
• Proposed Measures for Strengthening Anti-Defection Laws: Enhancing the Anti-Defection laws could involve the establishment of dedicated committees to investigate instances of party-switching for personal gain. Those found guilty of such actions should face punitive measures, including electoral disqualification, to safeguard the integrity of the democratic process.

Conclusion

• The Anti-Defection laws should be reinforced with provisions for specialized committees to probe instances of political horse-trading. Punitive actions, such as electoral bans, should be imposed on offenders to preserve the active democratic fabric of the nation.
• Anti-defection laws must include provisions for separate committees to investigate cases of horse trading between political parties.
• If members are found guilty, they should face punitive sanctions, including a ban on contesting elections to preserve the integrity of the democratic process.