The Anti-Defection Law: Tenth Schedule of Constitution

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Context: Recently, the Supreme Court upheld the disqualification of 17 dissident legislators approved by the then Karnataka Assembly Speaker K.R. Ramesh Kumar under the Tenth Schedule (Anti-Defection law).

Relevance:
Prelims: Current events of national and international importance.
Mains: GS II- 

  • Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions, and basic structure.
  • Structure, organization, and functioning of the Executive and the Judiciary Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.

Background:

  • In 2019, a motion of no-confidence was to be considered in Karnataka Assembly against the ruling party. During this process, a few of the legislators resigned from their respective parties.
  • However, their resignation was not taken under consideration by the then Assembly Speaker in lieu of the confidence vote that was to be held within a few days.
  • As soon as the trust vote was not achieved during the floor test by the ruling party, the Speaker disqualified those rebellious members.
  • This raised the question of the disqualification of members under the Anti-defection law (Tenth Schedule) versus the role of Speaker to accept their resignation.
  • Also, the Speaker barred those MLAs from contesting elections till the time incumbent Assembly’s term gets over, i.e, by 2023.
  • This raised another question whether disqualification under Tenth Schedule can lead to a bar upon legislators to contest by-elections during the tenure of the incumbent Legislative Assembly.

What is defection?

  • Defection is the state of having rejected one’s own affiliation, religious or political beliefs, or principles often in favour of opposing beliefs or causes.

History of Anti-Defection Law:

  • Aaya Ram Gaya Ram (frequent floor-crossing by legislators) was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.
  • The anti-defection law sought to prohibit such defections which may happen because of the reward of office, money or other similar considerations.
  • The Tenth Schedule (Anti-defection law) was added in the constitution in 1985 which lays down the process by which legislators may be disqualified due to defection by the Presiding Officer of a legislature based on a petition filed by any other member of the House.

What is the anti-defection law?

  • The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act.
  • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
  • The decision on the question as to disqualification on ground of defection is referred to the Chairman or the Speaker of such House, and his decision is final.
  • The law applies to both Parliament and state assemblies.

 Features of anti-defection law :

  • Disqualification:
    • If a member of a house belonging to a political party:
      • Voluntarily gives up the membership of his political party, or
      • Votes, or does not vote in the legislature, contrary to the directions of his political party.  However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
      • If an independent candidate joins a political party after the election. 
      • If a nominated member joins a party six months after he becomes a member of the legislature.
  • Power to Disqualify:
    • The Chairman of the Speaker of the House takes the decision to disqualify a member.
    • If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the  House elected by that House shall take the decision.
  • Exception:
    • A person shall not be disqualified if his original political party merges with another, and:
    • He and other members of the old political party become members of the new political party, or
    • He and other members do not accept the merger and opt to function as a separate group.
    • This exception shall operate only if not less than two-thirds of the members of the party in the House have agreed to the merger.
  • Disqualification under anti-defection law also applies to independent and nominated members of the legislature:
    • Independent members would be disqualified if they join a political party.
    • Nominated members who are not members of a party; join a party after 6 months from the date of nomination, would be disqualified. In other words, they won’t get disqualified if they join a party within 6 months of nomination.
  • Anti-defection law is not only prevalent in India but also in several other countries such as Bangladesh, Kenya, South Africa, etc.

What are the important court judgments regarding anti-defection law?

  • Kihota Hollohon vs. Zachilhu and Others, 1993
  • Issue: Whether presiding officer’s decision subject to judicial review?
    • The law earlier mentioned that the decision of the Presiding officer is not subject to judicial review.
    • This condition was removed by the Supreme Court in 1993 (Kihoto Hollohan Case) thus permitting appeals against the Presiding Officer’s decision in the High Court or the Supreme Court.
    • But the Supreme Court maintained that there may not be any judicial intervention until the Presiding Officer gives his order.
  • Ravi S Naik vs. Union of India, 1994
  • Issue: Whether resignation constitutes “voluntarily giving up membership” of a party?
    • The SC interpreted the phrase ‘voluntarily gives up his membership’ and said that the phrase is not synonymous with ‘resignation’ and have a wider meaning.
    • A person may voluntarily give up his membership of a political party even though he has not submitted his resignation from the membership of that party.
  • Vishwanathan vs. Speaker, Tamil Nadu Legislative Assembly (1996)
  • Issue: What does it mean to be voluntarily giving up a membership?
    • The Court stated that a member can be said to voluntarily give up his membership of a party if he joins another party after being expelled by his old political party.
  • Rajendra Singh Rana vs. Swami Prasad Maurya and Others (2007)
  • Issue: Presiding officer failing to act on the petition.
    • The SC stated that if the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule.
    • The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties.

Committee interpretations on anti-defection law:

  • Following demands that disqualification not be decided by speakers as they failed to be impartial, the Dinesh Goswami Committee and the Constitution Review Commission headed by Justice MN Venkatachaliah (2002) had recommended such a decision be made by the President or the Governor on the Election Commission’s advice, as in the case of disqualification on grounds of office of profit. 
  • Dinesh Goswami Committee on electoral reforms (1990)
    • Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence. 
  • Law Commission (170th Report, 1999)
    • Pre-poll electoral fronts should be treated as political parties under anti-defection law.
    • Political parties should limit the issuance of whips to instances only when the government is in danger.

What is the Need for the anti-defection law? / Merits

  • Provides a stable government by making sure that legislators do not change sides.
  • It ensures that candidates elected with party symbols and on the basis of party manifestos stay loyal to the policies of the party.
  • It enables political parties to prevent its members from voting for the lure of office or money by opposition parties.
  • Promotes party discipline.
  • Facilitates merger of political parties without attracting the provisions of Anti-defection
  • Expected to reduce corruption at the political level.
  • More concentration on governance is possible.
  • Provides for punitive measures against a member who defects from one party to another.

Challenges posed by anti-defection law:

  • Resignation v/s Disqualification as seen in Karnataka politics:
    • The incident calls for an interpretation of the three provisions of the Constitution:
      • Article 190 (vacation of seats), Article 164 (1B), and the Xth schedule of the Constitution.
    • The Speaker has the power to not accept resignation if s/he comes to the conclusion that there are grounds to believe that the resignation is a consequence of coercion or any other kind of undue influence or inducement. Inducement could also mean some kind of post/position elsewhere.
    • If the speaker comes to the conclusion that resignation is effectively connected and linked to the aspect of defection, then perhaps that particular resignation can be kept on hold and it need not be accepted.
    • The defection is happening due to the lure of money and ministerial offices.
    • The decision to resign before disqualification is taken because it allows one to become a minister in the current House otherwise one cannot become a minister in the current House until one’s re-election or the expiry of the term, whichever is earlier.
    • In this case, the court observed, 
      • On the one hand, resignation does not take away the effect of a prior act that amounts to disqualification. On the other, Speakers are not given a free power to sit on resignation letters indefinitely.’
      • Under Article 190(3) of the Constitution, the Speaker has to ascertain the voluntary and genuine nature of resignation before accepting it.
      • It is a limited inquiry process only to check if the letter is authentic and if the intent to quit is based on free will. Once it is clear, the Speaker has no option but to accept the resignation.
      • The Court also observed that a pending disqualification action does not become nonfunctional by mere submission of the resignation letter. This would defeat the purpose of the Tenth Schedule if it was held that disqualification proceedings would become unfruitful upon tendering resignation.
  • Tenth Schedule versus Re-contesting elections:
    • The Supreme Court upheld the disqualification of the dissident legislators however it also held that their ouster does not put any bar upon them from contesting by-polls.
    • According to the Court, ‘neither under the Constitution nor under the statutory scheme (i.e, Representation of the People Act, 1951 or the Anti-Defection Law) it is mentioned that disqualification under the Tenth Schedule would lead to a bar for contesting re-elections.’
    • The court also remarked that even the 91st Amendment Act, 2003 which did not allow a disqualified member to be appointed as a minister, did not give Speaker the power to put a ban upon them to contest elections till the end of the term.
  • The law impinges on the right of free speech of the legislators:
    • This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). The court said that “the anti-defection law seeks to recognize the practical need to place the proprieties of political and personal conduct…above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.
  • Doubts regarding “voluntarily” resigning from a party:
    • According to a Supreme Court judgment, “voluntarily giving up the membership of the party” is not synonymous with “resignation”.
    • It has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.
    • In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned
  • Regarding Whips:
    • Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue.
    • It restricts a legislator from voting in line with his conscience, judgment, and interests of his electorate.
    • Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
  • Challenging the decision of the presiding officer in the courts:
    • The law states that the decision is final and not subject to judicial review. There are several instances that presiding officers take a politically partisan view.
    • The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.
  • The law doesn’t touch on the time period for the speaker to decide on disqualification.
  • The anti-defection law raises a number of questions, several of which have been addressed by the courts and the presiding officers.

Loopholes:

  • The 10th schedule provides an exemption for disqualification if 2/3rd members agree to join another party = mass defection happens across the country.
  • In 2016, the Arunachal Pradesh chief minister PemaKhandu, along with 43 MLAs defected from the Congress Party to join People’s Party of Arunachal.
  • In recent years, opposition MLAs in some states like Andhra Pradesh and Telangana, have broken away in small groups gradually to join the ruling party. In some of these cases, more than 2/3rdof the opposition has defected to the ruling party.
  • he anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. The true objective to enhance the credibility of the country’s polity by addressing rampant party-hopping by elected representatives should be pursued rather than using it as a political tool to pursue narrow interests of the party.

Can MLAs facing disqualification be tried under the Anti-Defection Law even after they resign?

  • One way is to go with the way judges are removed i.e. wherein, if removal proceedings are going against a judge and the judge chooses to resign, immediately that proceeding ends. Going by that, in such cases, once the resignations are accepted, the disqualification proceedings will be over automatically.
  • Another way is to take some kind of inspiration from the Company Law where even after a person has resigned from his post as a director, he can be held accountable for actions that he took as a Director under Section 168 (2) of the Companies Act.
  • It can happen that the Speaker accepts the resignation when it is tendered, on the belief that the same has been tendered in a bonafide fashion but after some time if s/he comes to realize that there has been malafide reason behind the resignation, due action can be taken.
  • The fact is that the Speaker does not have a legal tool in his hand to actually hold that particular person accountable and to return that particular resignation. Presently, if the resignation is accepted, the Speaker has to necessarily declare that the particular seat has been rendered vacant.
  • The disqualified MLAs have an option to challenge the disqualification before the courts as the Speaker’s decision is subjected to judicial review.

Speaker should not be the final decider because:

  • The Speaker has been assigned the role of an impartial arbiter. But the conduct of speakers has left much to be desired.
  • A lawmaker elected as Speaker/Chairman is allowed to resign from his/her party, and rejoin it if he/she demits office. But speakers have invariably allowed themselves to be used for the gain of their party or leader.
  • There have been many instances which show there is a need for more clarity:-
  • The Uttarakhand Assembly Speaker disqualified nine MLAs from the ruling party in 2016, despite the MLAs not leaving the Congress or voting against it in the Assembly. Furthermore, while the MLAs had voiced dissenting notes against the Budget, the Budget itself was declared passed without voting by the Speaker.
  • Such instances highlight the need for greater clarity in the interpretations associated with the Anti-Defection Law. Perhaps, it might be better for such critical decisions, associated with representative disqualification, to be determined by the President instead, with inputs from the Election Commission.

What is the way forward?

  • Disqualification by President/Governor:
    • Instead of Presiding Officer, the decision to disqualify a member should be taken by the President (in case of MPs) or the Governor (in case of MLAs) on Election Commission’s advice.
    • This would be similar to the disqualification of persons holding Office of Profit.
    • It is because unlike British Parliament, where a Presiding officer is a non-party person, in India, Presiding Officer in the lower house (Speaker) must be the member of the Ruling Party, there would be a conflict of interest in taking decisions disqualifying a person for defection.
  • Bring clarity:
    • The phrase “voluntarily giving up membership” is too vague and requires comprehensive revision.
  • Restricted application:
    • As suggested by Dinesh Goswami Committee and Law Commission, the law should apply only to votes that determine the stability of the government like the passage of the annual budget or no-confidence motion.
  • Free votes:
    • In the UK, parties sometimes announce a ” free vote” which means that for a specific legislative agenda, MPs are free to vote as they desire and are not controlled by whips issued by parties.

Conclusion:

  • The Speaker needs to strike a distinction between bonafide political reasons and malafide political reasons.
  • Politicians found loopholes in this law and have been utilizing it for their own benefit. It is high time that a watchdog should be created in our Parliament and our constitutional pundits need to revisit this issue in order to counter the menace of corruption and defection which has worn away the values of democracy.

 



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