A CRITICAL ANALYSIS OF ANTI-DEFECTION LAWS IN INDIA

A CRITICAL ANALYSIS OF ANTI-DEFECTION LAWS IN INDIA

– Manish Kumar S
3rdYear BA. LLB.,
School Of Law, Christ (Deemed To Be University).

INTRODUCTION
Anti-Defection law is stated under the Tenth Schedule of the Constitution of India[1]. Defection has been a cause of distress for the Indian parliamentary system for quite some time, especially with respect to the state level. Defection basically means shifting of a member of parliament from one political party to another and this causes instability in the government as it may topple the entire government as the supporters of the government shift to   an opposition party which may convert the party from a minority party to that of a majority. The practice of defection is undemocratic in nature as it affects the electoral verdicts as the members of parliament are elected on the basis of their ideology or the political parties they represent, and due to defection the political parties that gained less number of seats in the election are going on to gain majority and this is in violation of the mandate of the people, thus defection is undemocratic in nature.
In 1997 in the case of Mayawati v Markendeya Chand[2]in Uttar Pradesh the existing government was collapsed by the BJP with support of ministers belonging to the Samajwadi party and the Indian National Congress and formed a government wherein Kalyan Singh was appointed as the Chief Minister of the state. This was an unprecedented event as the council of ministers consisted of 94 members of parliament where in almost all the defectors were appointed as ministers. This particular event brought notice to the concept of defection as this particular act which is morally wrong, done for the lust of power and it completely disrespected the decision of that of the electorate. Thus, it was essential to contain the undemocratic act of defection as it undermines the entire foundation of democracy of India and thus particular laws have to be enacted to prevent defection.
TENTH  SCHEDULE
Thus, in 1985 The Constitution (Fifty second Amendment) Act[3]was passed where four articles of the constitution of India were changed which are Article 101(a)(3)[4], Article 102(2)[5], Article 190(3)(a)[6]and Article 191(2)[7]and the Tenth schedule of the constitution was added and thus this was referred to as Anti-Defection laws. In the Tenth Schedule if a member of parliament voluntarily gives up his or her membership in the parliament or abstains from voting or votes in the house against his or her political party  or against any direction prescribed by it then he or she is said to be liable to disqualified from their membership. Under Article 102(2) a person is said to be disqualified from their membership from either houses of the parliament is they are said to be disqualified under the Tenth Schedule. Under this schedule it gives the Chairman and the speaker of the assembly the powers to set up a tribunal. Thus, the final authorities to make the decision with respect to disqualification of the Member of Parliament are the Speaker or the Chairman of the house. The role of the speaker or the chairman is merely ascertain the facts and all the relevant facts are gathered where it states that a particular member or a group of members of the parliament have collectively committed a particular act which comes within the purview of the Tenth Schedule then the disqualification of the member will be held valid and the speaker and the chairman have to make a decision to that effect. The speaker or the chairman has to be involved in the adjudication process, fairness to the member in fault as that particular member should be given an opportunity to explain their position and if they are not allowed to then it is said to be a violation of the principle of Natural Justice.
In Mahachandra Prasad Singh v Chairman, Bihar legislative council[8]a Legislative Council who belonged to the Indian National Congress was disqualified under the Tenth Schedule as he was contesting the Parliamentary Elections as an Independent candidate. The chairman took into consideration a letter from the leader of the congress stating that the said Member of Legislative  Council was disqualified due to the violation of discipline as he contested for the elections as an a independent candidate. Here, the candidate did not disagree with this fact and thus the not supply of the copy of the letter to the MLC was not held to have been a violation of his natural justice.
Under paragraph 3 of the Tenth Schedule it provides that no disqualification would be incurred in case where there is a split and where at least one third of the members of the party. Paragraph 4 of the Tenth Schedule provides for the protection of mergers of parties provided that the decision to merge is supported by not less than a minimum of two thirds of the political party. Paragraph 6 provides that the decision of the Speaker or the Chairman of the house are said to be final.
Under paragraph 7 of the Tenth Schedule it states that no court has the jurisdiction to decide the question of disqualification of a member of parliament as the Speaker or the Chairman of the house have full jurisdiction with respect to issues pertaining to disqualification.
Paragraph 8 gives the Speaker and the Chairman the powers to make rules for giving effects to the provisions of the Tenth Schedule. It also provides for the procedure that should be followed by the Speaker shall be the same as adopted in privilege cases by the committee of privileges.
In Rajendra Siingh Rana v Swami Prasad Maurya[9] the supreme court constructing paragraph 3 of the Tenth Schedule of Article 102 and Article 191, does no
t permit the determination of the question to split or merger separately from a motion before the speaker seeking a disqualification of members or members concerned nor does the speaker have an independent power to decide that there has been a split or merger of a political party as contemplated by the paragraphs 3 and 4 of the tenth schedule.
In Kihota Hollohan v Zachilhu[10]where the Supreme Court in 3:2 ratio upheld the constitutionality of Anti- Defection law. This case is said to be a landmark judgment as the court in here stated that the speaker’s orders under the law to disqualify a member of parliament on the grounds of defection is subject to judicial review. The court laid down two grounds where in judicial review is permissible: (a). Speaker suspending or taking action during the pendency of the disqualification proceedings (b). Grave immediate irreversible repercussions, these grounds were also considered in the case of Speaker Haryana Vidhan Sabha v Kuldeep Bishnoi.[11]Paragraph 7 of the Tenth Schedule barring judicial review affects Article 226[12], Article 227[13]and Article 136[14]of the constitution of India and thus it requires to be ratified by half the state legislation as prescribed in Article 368(2)[15]. The majority has also affirmed that the orders of the speaker will be open to judicial review on the grounds that there is a judicial error based on the violation of the constitutional mandate, mala fides and noncompliance with rules of natural justice and perversity.
In Ms. Sundaram Finance Ltd. v Regional Transport officer[16]it was stated that the speaker cannot be the sole arbitrator as it would be a clear violation of the basic structure of the constitution as the speaker is someone who is appointed by the majority of the house and thus the speaker cannot be considered as the sole arbitrator.
 In 2007, in the case of Rajendra Singh Rana v Swamy Prasad Maurya[17]the speaker has decided that certain members of the assembly are not disqualified on the grounds of defection but the Supreme Court in this case stated that the decision is unconstitutional and inter alia as the decision given by the speaker was not based on any evidence. Thus, Under Schedule 10 the speaker of the house are granted with powers of that of a sole arbitrator and thus since the speaker is appointed by the majority party there are certain instances where the speaker of the house have misused their power and this is violation of the principle of representative democracy.
In B.S. Yeddyurappa Case[18]the court stated that the “Speaker acted in ‘hot haste’ and in violation of the principles of natural justice while disposing off the disqualification petition, even though there was no conceivable reason for the Speaker of the Karnataka Legislative Assembly to have taken up the matter in such a hurry.  A similar situation was seen in A.K. Bose, MLA v. Tamil Nadu legislative assembly[19]where the madras High Court held that he should have been given an opportunity to state his case and no such opportunity has been given to him and instead, he has been thrown out of the House which is arbitrary, unreasonable and violative of Articles 14[20]
VIOLATION OF THE PRINCIPLE OF REPRESENTATIVE DEMOCRACY:
The powers given to the Speaker under Tenth Schedule are violative of the principle representative democracy also known as Parliamentary democracy because the powers granted under Tenth Schedule, gives the Speaker the power to make decisions regarding the disqualification of the members of parliament which affect the aforementioned feature of the basic structure.
A representative democracy is a system of appointing ministers in the Parliament by electing a member of the Council of Ministers. In such a situation, the voting rights are given only to the Council of Ministers but the power of choosing their representative is always given to the people directly or indirectly. The Speaker or the Chairman of the house have the power to adjudicate disputed defections would violate a basic feature of the Constitution, and Parliamentary Democracy.
The powers given to the Speaker are against the concept of representative democracy because it gives the Speaker complete authority to disqualify ministers who “voluntarily give up their position”, such a decision is also within the powers of the Speaker. This power to disqualify the actual representatives of the people with mala fide intentions coupled with bar on judicial review as well as courts’ jurisdiction under Paragraph 6 and 7 of the Tenth Schedule leads to improper representation and lack of accountability of the Speaker. Thus, it is concluded that Speaker’s authority given to him under Tenth Schedule does not fulfill the essentials of a representative democracy which is a part of the basic structure doctrine.
VIOLATION OF THE PRINCIPLE OF JUDICIAL REVIEW UNDER ARTICLE 32 AND 226 OF THE CONSTITUTION:
Article 32[21], 136[22], 226[23]and 227[24]of the constitution guarantee judicial review of legislative and administrative actions and protection of fundamental rights. In Kesavananda Bharati[25]case where judicial review has been declared as a basic feature. Justice Khanna stated “as long as fundamental rights are a part of the constitution, the power of judicial review has to be exercised with a view to see that the guarantees afforded by those rights are not contravened.”  The powers conferred upon the Speaker/Chairman under Tenth Schedule grant them the immunity from judicial review or any sort of judicial scrutiny in the light of Paragraph 6 and Paragraph 7.
The basic structure doctrine laid down in Kesavananda Bharati case[26]explicitly states that judicial review is a basic feature and therefore any decision made as per the discretion of an authority will be subject to it and therefore such statutory finality cannot abrogate the concept of judicial review.

READ  Constitution and Legislature of India

[1] INDIA CONST., Xth  Sch.
[2] Mayawati v. Markandeya chand and ors., (1998) 7 S.C.C. 517 (India).
[3] Constitution (Fifty second Amendment) Act, 1985.
[4] INDIA CONST., Art. 101.
[5] INDIA CONST., Art. 102.
[6] INDIA CONST., Art. 190.
[7] INDIA CONST., Art. 191.
[8] Mahachandra Prasad Singh v Chairman, Bihar legislative council, (2004) 8 S.C.C. 747 (India).
[9] Rajendra Siingh Rana v Swami Prasad Maurya, A.I.R. 2007 S.C. 1305 (India).
[10] Kihota Hollohan v Zachilhu, A.I.R. 1993 S.C. 412 (India).
[11] Speaker Haryana Vidhan Sabha v Kuldeep Bishnoi, A.I.R. 2013 S.C. 120 (India).
[12] INDIA CONST., Art. 226.
[13] INDIA CONST., Art. 227.
[14] INDIA CONST., Art. 136.
[15] INDIA CONST., Art. 368.
[16] Ms. Sundaram Finance Ltd. v Regional Transport officer,  AIR 1992 SC 117 (India).
[17] Rajendra Singh Rana v Swamy Prasad Maurya, (2007) 4 S.C.C. 270 (India).
[18] Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors.,(2011) 10 S.C.R. 877 (India).
[19] A.K. Bose, MLA v. Tamil Nadu legislative assembly, 2008 (2) L.W. 1001 (India).
[20] INDIA CONST., Art.14.
[21] INDIA CONST., Art.32.
[22] INDIA CONST., Art.136.
[23] INDIA CONST., Art.226.
[24] INDIA CONST., Art.227.
[25] Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., A.I.R. 1973 S.C. 1461 (India).
[26] Id.
READ  Defection and its Deterrence – A Critical Examination of the Anti-Defection Law

Leave a Comment