Defection and its Deterrence – A Critical Examination of the Anti-Defection Law

Defection and its Deterrence – A Critical Examination of the Anti-Defection Law

Authors: Apoorva U Kumar & Lian C Joseph, 
3rd Year BA LLB,
 School of Law CHRIST (Deemed to be University).
Introduction
Defection in simple terms refers to floor-crossing by a member of one political party to another party.[1]Defection in most cases has resulted in the fall of several governments and incidentally political instability. The members of a party are elected based on the aspirations and mandate of the electorate, but the same is then negated by such actions. The phrase ‘aaya ram gaya ram’ became a popular phrase in the Indian political system after an MLA from Haryana, Gaya Lal changed his party thrice on the same day in 1967. The issue of defection became a topic that was soon heavily present in the national conscious of the people due to its devastating effects. The issue gained prominence from the Fourth General Elections and between January 1952 and 1982, defection resulted in the fall of 66 state Governments and one Central government, and necessitated the imposition of President’s Rule 70 times.[2]From 1967 to 1971, around 142 Member of Parliaments and over 1900 MLAs switched their political parties.[3]Governments in many states, like Haryana, collapsed. However, it took the Parliament almost 15 odd years to successfully frame a law to curb this practice. Several efforts were made in this regard to such as the introduction of private members bills and other bills but needless to say none of them were passed successfully. The most commonly stated reasons for the same were; (a) members could not come to a consensus as to the exact meaning of the term and (b)they felt that the law might be too restrictive and would encroach on their right to freedom of speech and expression.
Anti-Defection Laws in India
On 11th August 1967, P. Venkatasubbiah, Secretary of the Congress Party moved an unofficial resolution in the House seeking the appointment of a Committee on Anti-Defection. The resolution was later adopted by the House with an amendment moved by the S.S.P. leader Madhu Limaye. The Committee which was constituted by the Houses consisted of the Union Home Minister Shri Y. B Chavan as Chairman, the Union Law Minister, and the Union Minister for Parliamentary Affairs, the representatives of eight political parties and three independent groups recognized by the Speaker in the Lok Sabha. The other members were, Shri P. Venkatasubbaiah, Shri Jaya Pakash Narayan, Shri H.N. Kunzru, Shri C.K. Daphtary, Shri H.M. Seervai, Shri M.C. Setalvad and Shri Mohan Kumarmangalam.
The Committee held six meetings in 1968 and its report on Defections was signed on January 7, 1969 and was presented to Parliament on February 18, 1969. The committee had various considerations placed before it. They observed that in cases of political gain and opportunism, there can be no adequate deterrent, that any remedial measure to be imposed must balance a myriad of factors such as organic growth of parties, change in ideologies and curb of genuine and honest dissent. The Committee then released a series of recommendations to this effect which included; (a) political parties themselves must create a code of conduct which does not allow for a defector to be accepted into another party, (b) a person who was not initially appointed as a member of the Lower House can be given the post of Prime Minister or Chief Minister, (c) defectors must not be allowed to hold the post of Prime Minster, Chief Minister or any other Ministerial position, (d) a ceiling on the number of people in the Council of Ministers and (d) amendments to Articles 102(1) (e) and 191 of the Constitution.
The Constitution (Thirty-Second Amendment) Bill, 1973 was introduced in the Lok Sabha on 16th May, 1973, seeking to amend Art. 102 and 191 of the Constitution and to provide, inter alia, for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on
his voluntarily giving up of the membership of the political party by which he was set up as a candidate at such election or of which he became a Member after such election, or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or by any person or authority authorized by it in this behalf without obtaining prior permission of such party, person or authority. The Bill had provisions which were not enumerated in the recommendations of the Committee. The Bill was then referred to a Joint Committee but before the committee could finish its deliberations, the Lok Sabha was dissolved and the Bill subsequently lapsed.
Another significant report was the Report of the Election Commission of India in 1977, where the main recommendation centered around providing some form of disqualification due to defection. The Commission expressed great distress and dissatisfaction over unethical practices that had occurred un the previous elections. It however concluded that no amendment to the Representation of People’s Act 1951 was required for that purpose. The matter was then referred to a Committee headed by the then Union Home Minister, Choudhary Charan Singh, and on the basis of the recommendations of the Choudhary Charan Singh Committee, another Bill viz, the Constitution (Forty-Eight Amendment) Bill 1978 was introduced in the Lok Sabha on 28th August, 1978. Unlike the earlier Bill, this Bill sought to specify defection from a Member’s original political party as a disqualification under Art. 102 or 191, as the case may be. A schedule to be called as the ‘Tenth Schedule’ was also proposed to be inserted in to the Constitution for making detailed provisions as to disqualification on the ground of defection. The Bill was heavily contended by members from other sides and subsequently lapsed.
Seven years after the lapse of the previous Bill, the Constitution was amended vide the Constitution (Fifty-Second Amendment) Act in 1985 which amended four articles of the Constitution namely; Articles 101(3)(a), 102(2), 190(3)(a) and 191(2) and added the Tenth Schedule as well. This amendment is commonly referred to as the Anti Defection Law. The Tenth Schedule provides the following;
(i) an elected member who is elected as a candidate of one particular political party would be disqualified if he voluntarily relinquishes his membership of such political party or votes or abstains from voting in the House contrary to any direction of such party. An independent member would be disqualified if he subsequently joins a political part after he is elected. A nominated member who is not a member of a political party at the time of his nomination and who has not become a member of a party before the expiry of six-months after taking his seat shall be disqualified if he joins any party after the expiry of six-months.
(ii) the law recognizes splits and mergers to form exceptions to the rule of defection. A split occurs when one-third of the members of a political party form a group of their own while a merger occurs when two-thirds of the member support the move for a merger.
(iii) the question as to whether or not a member is disqualified will be determined by the Speaker or Chairman as the case may be. All proceedings in this regard will be deemed as proceedings in Parliament as defined under Article 122 or within a State Legislature as prescribed under Article 212. The Constitution (Ninety-First) Amendment Act 2003, inserted Article 361 B and Articles 75 and 164 were also amended. This was a result of various reports including the 170th Report of the Law Commission of India.
As mentioned, before, the Indian Polity has continued to witness an increase in the number of cases regarding defection. More recently, the law was put to a test in the case of Shrimanth Balasaheb Patil and Ors. Vs. Hon’ble Speaker, Karnataka Legislative Assembly and Ors[4]. Around 10 Writ petitions were filed challenging five different order of the Speaker of the Karnataka Legislative Assembly. These orders disqualified 17 MLA’s from the Karnataka Assembly on the ground of defection. Brief facts of the case are as follows –
The petitioners were elected as members to the 15th Karnataka Legislative Assembly. They belonged to the Indian National Congress and the Janata Dal (Secular) while one member was an independent candidate. The Bhartiya Janata Party was the single largest party pursuant to the 2019 elections but could not form a government. A coalition government between the JDS and the Congress was then formed and assumed power. The government lasted for a period of 14 months. Subsequently, disqualification petitions were instituted against a few members while some of the petitioners contest that they had submitted their resignations between 01.07.2019 to 11.07.2019.
The Speaker had not taken a decision on these resignations and given that a trust vote was about to take place, most of the petitioners approached the Supreme Court by way of a Writ Petition. On 12.07.2019, the Court passed an order stating that the status quo must be maintained until the matter was subsequently heard on 16.07.2019. On 17.07.2019, the Court held that the Speaker cannot be burdened by an order or direction of the court and that they should be left free to decide the matter in accordance with Article 190 read with Rule 202 of the Rules of Procedure and Conduct of Business in Karnataka Legislative Assembly. The trust vote occurred on 23.07.2019 and the 17 MLAs did not attend the same which resulted in the fall in the Kumaraswamy led government which lacked the numbers required and he resigned as the Chief Minister. Subsequently on 25.07.2019 and 28.07.2019, the Speaker passed orders rejecting the resignations of the petitioners on the ground that it was not true or genuine and disqualified all the petitioners until the end of the 15thLegislative Assembly.
The Court framed the following issues namely;
1. Whether the Writ Petition challenging the order of the Speaker Under Article 32 is maintainable?
2. Whether the order of the Speaker rejecting the resignation and disqualifying the Petitioners i
s in accordance with the Constitution?
3. Even if the Speaker’s order of disqualification is valid, does the Speaker have the power to disqualify the members for the rest of the term?
4. Whether the issues raised require a reference to the larger Bench?
With regards to the aforementioned issues the Court concluded that the Speaker while adjudicating a disqualification petition acts as a quasi-judicial authority and the validity of the orders so passed can be questioned by the Court. However, the first point of recourse would be with the High Court as it would be appropriate and expeditious. The Speaker’s scope of inquiry with regards to resignations tendered is limited only to examine whether it was tendered on voluntary and genuine grounds. Once the same is proved the Speaker must accept the resignations and cannot look at other factors to determine the same. Resignation and disqualification under the Tenth Schedule results in the vacancy of the seat but subsequent consequences are different. Disqualification related back to the date when such act of defection tales place and the mere tendering of resignation does not impede any subsequent disqualification action that is taken for the acts done prior to the resignation. The grounds for challenging the order of the speaker was laid down in the case of Kihoto Hollohan[5]and included malafide, perversity, violation of constitutional mandate and order passed in violation of principles of natural justice. The Speaker is not entitled to disqualify a member until the end of the term, other action as envisaged under Articles, 75(1B), 164(1B) and 361B can be instituted. Finally, there exists no substantial question of law which requires redressal by a larger bench and hence it shall not be referred to a larger bench.
The Differing Motives behind Defection and the Good Faith-Bad Faith Dichotomy
Under Para 2(1)(b) of the Tenth Schedule, a Member of a House may be disqualified if he votes or abstains from voting contrary to any direction issued by the political party he belongs to, without obtaining the party’s prior permission, or if this aforementioned act is not condoned subsequently by the party within fifteen days. Hence, if a whip is issued by a political party directing its party members to vote in a specific manner, going against the same makes Members of the House susceptible to disqualification under Para 2(1)(b). It is a recurring contention that enshrining the aforementioned as a ground under the Tenth Schedule violates the fundamental right to freedom of speech and conscience of the Members of a House, and their constitutional rights as enshrined under Article 105 and 194 of the Constitution of India.
However, it has been observed by the Courts that this aforementioned provision by itself does not compel Members to always abide by the party whip or direction. In the case of Yitachu v. Union of India and Ors.[6], the Court observed that –
“The Tenth Schedule itself does not prohibit any member of a Legislature from violating the direction/whip issued by a political party to legislators belonging to that political party. All that Paragraph 2(1)(b) of the Tenth Schedule prescribes is that when such a direction/whip issued by that political party is violated by a legislator either without the prior permission of the political party or without such violation having not been condoned subsequently by the political party, the legislator incurs disqualification for continuing as a Member of the House.”
Hence, they may disobey the direction issued by their party whip, at the risk of incurring disqualification. The judiciary has consistently reiterated that this tradeoff does not violate the right to freedom of speech and conscience of the Members as these are not absolute rights, and are subject to the restrictions of the Tenth Schedule. This was laid down in the case of Kihoto Hollohan v Zachillhu[7]wherein the Supreme Court observed that the provisions of Paragraph 2 of the Tenth Schedule do not violate any rights or freedoms of the elected members of Parliament or State Legislatures under Article 105 or 194 of the Constitution, and is thus constitutionally valid. Further, the Court also observed that the disqualification must be so construed so as to not unduly impinge on the freedom of speech of a member, which would be possible if the paragraph is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb the veil or mischief of political defections.
The legislative intent behind incorporating the provision under Paragraph 2 can be highlighted from another portion of the Kihoto Hollohan judgement[8]wherein the Supreme Court observed-
“To abstain from voting when required by the party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side is conspiracy. Paragraph 2(1)(b) 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.”[9]
While the judiciary’s stance on the constitutional validity of Paragraph 2(1)(b) is a settled principle, it is suggested that a balance between the freedom of speech of Members and curbing the evil of defection must be struck. In a representative democratic system such as India’s, the Members of Parliament or of a State Legislature are not merely representatives of the party they belong to, but are also representatives of the people of the constituency they belong to. Hence, they should be ideally allowed to freely vote in order to best represent their interests, as at the end of the day, the purpose of having a multi-party polity is to best represent the interests of the voters. Hence, when obeyance of a party direction becomes necessary lest they incur disqualification, the freedom of voting in the best interest of the voters of the constituency they represent becomes subservient to the political interests and ambitions of the party.
Therefore, it becomes an important task to unearth the various motivations for defection, and to differentiate in the varying degrees of its evilness on the basis of the severity of the consequences caused. A Member incurs disqualification on the grounds of defection if he disobeys the party whip, or voluntarily gives the membership of the party by his resignation or actions. He may disobey the direction issued by the party whip in order to best represent the interests of his constituency. He may also voluntarily give up the membership of his party for monetary gain, or to satisfy his political ambitions (ministerial posts are often used to incentivize defection). There is a clear difference in the integrity of these two aforementioned motivations. One can be said to be done in good faith for satisfying the representative role of a Member, whereas the other is a purely self-motivated act of bad faith. For instance, in the case under consideration, Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly and Ors.[10], the disqualified MLAs caused the dissolution of the duly constituted Legislative Assembly itself as by virtue of their defection the incumbent coalition government failed the trust vote. Further, all of them were allowed to stand for re-election by the Hon’ble Supreme Court under the opposition party’s banner. Most of these disqualified MLAs were re-elected, and some were even appointed as Ministers. Their motivations must at least be suspected for dubiousness. Their acts of defection caused the dissolution of a duly constituted Legislative Assembly and resulted in a subversion of the people’s mandate. Hence the degree of this purported offense is more aggravated in nature as compared to a disqualified MLA who was merely exercising his freedom of conscience. The former is an act of questionable morality while the latter is a reasonable exercise of dissent. Hence, the punitive measures adopted must be of varying degrees. The anti-defection law is toothless in a situation like that of the Karnataka MLAs, as they were immediately able to realize their political ambitions due to the immediate dissolution of the Assembly. They were disqualified till the dissolution of the Legislative Assembly, which occurred soon after, and as a direct cause of their defection. The term of their disqualification which was rather short, is not a sufficient deterrent against the evil of defection. Hence there exists a need for reform in order to add some element of deterrence in the anti-defection law as enshrined under the Tenth Schedule.
Conclusion
In the Statement of Objects to the Constitution (Fifty-Second Amendment) Act 1958, the potential to cause grave damage to our democracy due to defections was highlighted. It was observed that the evils of political defection are a matter of national concern and if not combated it has the ability to undermine the very foundations of our democracy and the principles that sustain it. As mentioned before, defection has two serious consequences; (a) the creation of unstable political systems, and b) disregard of the people’s mandate and subversion of the democratic ethos. In the Shrimanth Balasaheb case, the defection of the 17 MLAs and their subsequent failure to attend the floor test resulted in the collapse of the duly elected JDS and Congress led coalition Government which lasted for merely 14 months. In a country like India that thrives on having a vibrant and participatory civil society, the blatant disregard for the people’s choice and voice threatens the very foundations of our democracy. Each election also imposes a large burden on the state exchequer which is ultimately borne by the citizens. Each of the 17 MLAs represent the larger goals and aspirations of the people who voted for the. In the subsequent re-election in 2019, BJP won 12 out of the 15 seats. Some defectors
were even given Cabinet positions in the new Government- Shri Ramesh Jarkiholi was appointed as the Minister of Major and Medium Irrigation from Water Resources Department, Shri Shrimanth Balasaheb Patil as the Minister of Textiles from Commerce and Industries Department and Minister of Minority Welfare, Shri B C Patil as the Minister for Agriculture and Shri Arbail Shivaram Hebbar is the Minister of Labour Department and Minister of Sugar from Commerce & Industries Department. In Para 116 of the judgement, the Court observed that the existence of ‘corrupt praises’ such as horse trading, etc., result in the denial of the basic necessity of stable governments to the people. The Court also noted that the scope of their interference is limited and called for the Parliament to re-consider strengthening certain aspects of the Tenth Schedule so as to ensure that such corrupt practices are curbed and discouraged.
Firstly, differentiation must be made in the degree of offensiveness of the defection. For this the motives of the Members of a House should be examined till an extent. It is recommended that various there be a categorization of deterrence measures on the basis of the egregiousness of the defection. For example, if a Member merely disobeys the party whip without any apparent monetary or political motive, a milder form of deterrence may be applied. But in instances such as that occurred in the Shrimanth Balasaheb case[11], wherein the defection of the MLAs led to the dissolution of the Legislative Assembly itself, and in cases where MLAs unprincipledly defect for monetary a higher form of deterrence, such as barring the disqualified MLAs from contesting in the subsequent elections for the period of one term, may be considered.
The menace of defection still runs rampant decades after the institution of the Tenth Schedule. In order to preserve the people’s mandate and the fabric of democracy, a necessary reexamination of the efficacy of the aforementioned law is pertinent.
BIBLIOGRAPHY
1.     P Chakraborty, Office of Profit Disqualification and Anti Defection, Capital Law House
2.     MP Jain, Indian Constitutional Law, 2018, LexisNexis
3.     Political Defections – A Historical Perspective, https://shodhganga.inflibnet.ac.in/bitstream/10603/127653/14/10_chapter%202.pdf
4.     Anti-Defection Laws in India, Legal Edge, https://legaledge.in/blog/anti-defection-laws-in-india

[1] Mahabir Prashad Jain et al., Indian Constitutional law (LexisNexis 8) (2018)
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[2] Shodhganga.inflibnet.ac.in, https://shodhganga.inflibnet.ac.in/bitstream/10603/127653/14/10_chapter%202.pdf (last visited Feb 29, 2020)

[3] Anti-Deflection Laws in India Legal Edge, https://legaledge.in/blog/anti-defection-laws-in-india (last visited Feb 29, 2020)

[4] 2019 (15) SCALE 533

[5] Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412

[6] Yitachu v. Union of India and Ors., AIR 2008 Gau 103

[7] Supra 5

[8] Id.

[9] Id.

[10] Supra 4

[11] Supra 4

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