ANTI-DEFECTION LAW

This Article is written by Bharatee Preeya A.K. student of Alliance University.

Introduction:

India’s parliamentary system has been plagued by the politics of defection. A defected individual who defected from one party and joined another signifies that they crossed the floor. It is possible for a government to be toppled when supporters defect to the opposition, converting it from a minority party to a majority party. Defection is undemocratic as it negates the electoral verdict. A party that fails to get a majority through the election may yet be able to maneuver a majority in the house and form the government by inducing defection from other parties. Thus, the party which may have won a majority through an election and got the mandate from the people to form the government may yet fail to do so because few of its members defected from the party. It is one thing for a member to change his political affiliation out of conviction because he may conscientiously disagree with the policies of the party. In such case, if he leaves the party with whose support he has been elected to the house, he ought to resign his membership and seek fresh election to the house. But such principled of defection had become rare and most were happened due to selfish motives. There was an understanding that if political defections were not handled, the very foundation of democracy in India and the principles on which it is based would be undermined. It was therefore necessary to pass a law that would suppress the vice of defection. The purpose of the Anti- Defection Law is to curb defections but at the same time not to come in the way of democratic realignments of parties in the house by way of merger of two or more parties, or a split in an existing party.

52nd Constitutional Amendment :

The Constitution (Fifty-second Amendment) Act changed Four Articles of the constitution, viz Art101 (3) (a), 102(2), 190(3) (a), and 191(2), and additionally added the tenth schedule. This amendment is often referred to as the Anti-Defection Law. Under Article 102(2), a person is disqualified to be a member of either House of Parliament he is so disqualified under the Tenth Schedule.

Schedule X:

Under Para 2 of the X Schedule, if a member voluntarily gives up his membership of or votes or abstain from voting, in the house against the direction issued by, the party on whose symbol he or she was elected, then he or she would be liable to be disqualified from membership. In the plain language of Para 2 of schedule X, the disqualification comes into force or becomes effective on the happening of the event. If the member of the house has done any such act which comes within the purview of Para 2(1),(2), and (3) of the schedule X, the disqualification will apply. Under Para 6 the final decision on the question of disqualification of a member of the house vest on the chairman or the speaker of the house.

Under Para 3 of schedule X, no disqualification is incurred in case where a split from or merger of a party in, another party is claimed. Further, it was stated that from the time of the split, the breakaway faction will be deemed to be a separate political party for the anti-defection law. All that speaker is required to do is to ascertain whether the group consists of not less than one-third of the members of the legislative party. If the requirement is fulfilled, the speaker is bound to hold that member concerned cannot be disqualified.

Para 7 of Schedule X excludes the jurisdiction of the court in respect of any matter concerned with the disqualification of a member of a house under the schedule. That provisions being in the constitution itself unlike a statutory provision affect the judicial power conferred on the HC and the SC.

Para 8 authorizes the Chairman/speaker of a house to make a rule for “giving effect to the provisions of the schedule X”. However, a reasonable opportunity must be allowed to the member against whom a complaint has been made to represent his case and to be heard in person. At times the speaker may refer the case of defection to the committee of privileges for inquiry.

Kihota Hollohon vs. Zachilhu Case:

The constitutionality of the Anti-Defection law has been upheld by the SC in a 3:2 decision in this particular case. But at the same time, the court had ruled that the speaker’s order under the law disqualifying a member of a legislature on the ground of defection is subject to judicial review. Explaining the rationale underlying Schedule X, the SC had stated that provisions of the schedule give recognition to the role of the political parties in the political process. A political party goes before the electorate with a particular programme; it sets up a candidate at the election based on such programme: a candidate is selected based on that. The underlying premise of the schedule X is that political propriety and political morality.

Para 7 of Schedule X and Judgment analysis on Anti-Defection:

The majority view in the case is that the main provision of schedule X is intended to provide a remedy for the evil of the unprincipled and unethical political defection. Baring Judicial review by the Para 7 affects Article 136,226,227 of the constitution and thus is required to be ratified by half of the state legislature in accordance with article 368(2) of the constitution. As it has not been ratified it’s constitutionally Invalid. But part 7, contains a provision that is independent of and stands apart from the X schedule’s main provisions. The remaining provisions of the schedule X are severable from Para 7 as they could stand independently of para 7 and are complete in themselves, workable, and not truncated by excision of Para 7.

Even after the argument on the exclusion of Para 7, there is a contention that the entire schedule X would be still violative of the basic structure of the constitution. So the court held that disqualification proceedings under the schedule X the stand should only be concluded only after the final adjudication by speaker under Para 6. The court had the power to issue interim order restraining a member of the house from discharging his function as an elected representative of the constituent during the pendency of the disqualification proceedings, other than for expeditious disposal of disqualification proceedings by the speaker.

Prior to Final Adjudication judicial review is permissible only on two grounds carved out in Kihoto Hollohan case that is:

a)Speaker suspending or taking action against during the pendency of the disqualification proceedings and

b)grave immediate irreversible repercussion.

The majority decision had affirmed that the speaker’s order would be open to judicial review on the grounds of jurisdictional error based on violation of constitutional mandate, mala fide, and non-compliance with the rules of natural justice and perversity.

Conclusion:

The Anti-Defection Law and rules framed thereunder do not provide for the expulsion of a member from his party for his activities outside the house. A practice has however grown to declare such member which is expelled from a party as unattached but continues to be a member of the house notwithstanding the Anti-Defection law. Proceedings under Anti-Defection Law in respect of disqualification of a member are comparable neither to a trial in a court of law nor departmental proceedings for disciplinary action. Until 1985, there was no explicit reference in the constitution to political parties, although they have always been existing in the country. The Xth Schedule introduced in 1985 acknowledges the existence of the political parties and seeks to protect their integrity by banning defection from one party to the other.

 

REFERENCES:

[1] MP Jain, Indian Constitutional Law, Constitutional Amendments, 46-48(8th ed.2018)

[2] NARENDRA KUMAR, Constitutional Law, Constitutional Amendments,1215(Allahabad law agency),(10th ed.2018)

[3] Speaker Haryana Vidhan Sabha vs. Kuldeep Bishoni(2015) 12 SCC 381

[4] Rajendra Singh Rana vs. Swami Prasad Maurya, (2007) 4 SCC 270

[5] Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council,(2004)8 SCC 747, AIR 2005 SC 69

[6] KohotaHollohon vs. Zachilhu, AIR 1993 SC 412