Anti Defection Law

Anti Defection Law

Anti-defection law: when a nominated MP loses RS membership

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Anti-defection law

Mains level : Not Much

A nominated MP had to resign from Rajya Sabha before the completion of his term due to the Anti-defection law.

The story of Nominated Members

  • During the making of the Constitution, members of the Constituent Assembly felt that Rajya Sabha should have members who might not win elections but will bring knowledge and expertise to discussions.
  • It led to Rajya Sabha having 12 nominated members from different walks of life.
  • The broad criterion for their nomination is that they should have distinguished themselves in fields like literature, science, art, and social service.
  • The President nominates such individuals as recommended by the Centre.
  • Nominated members have the same rights and privileges as elected members, with one notable difference — they cannot vote in the election of the President.

Anti-defection law

  • In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution.
  • But its enactment was catalyzed by the political instability after the general elections of 1967.
  • This was the time when multiple state governments were toppled after MLAs changed their political loyalties.
  • The purpose of the 1985 Constitution Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected.
  • The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.

Try this PYQ:

Consider the following statements:

  1. The Chairman and the Deputy Chairman of the Rajya Sabha are not the members of that House.
  2. While the nominated members of the two Houses of the Parliament have no voting right in the presidential election, they have the right to vote in the election of the Vice President.

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

What invites defection?

The law covers three types of scenarios with respect to MP switching parties.

  1. The first is when a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House contrary to the wishes of the party.
  2. The second possibility is when an MP who has won his or her seat as an independent candidate after the election joins a political party. In both these instances, the MP lose the seat in the House on changing (or joining) a party.
  3. The third scenario relates to nominated MPs. In their case, the law specifies that within six months of being nominated to the House, they can choose to join a political party.

Why is a nominated member given 6month time?

  • The time is given so that if a nominated MP is not a member of a political party, they can decide to join one if they want.
  • But if they don’t join a political party during the first six months of their tenure, and join a party thereafter, then they lose their seat in Parliament.

Anti Defection Law

The absurdity of the anti-defection law

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Schedule 10

Mains level : Paper 2- Issues with anti-defection law

The article highlights the shortcomings of the anti-defection law and its failure in ensuring the stability of the government.

Background of anti-defection law

  • The anti-defection law was included in the Constitution as the Tenth Schedule in 1985.
  • The main purpose was to preserve the stability of governments and insulate them from defections of legislators from the treasury benches.
  • The law stated that any Member of Parliament (MP) or that of a State legislature (MLA) would be disqualified from their office if they voted on any motion contrary to the directions issued by their party.

Issues with the anti-defection law

1) Against the concept of representative democracy

  • The provisions of the anti-defection law is not limited to confidence motions or money bills.
  • It applies to all votes in the House, on every Bill and every other issue.
  • It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government.
  • Therefore, an MP (or MLA) has absolutely no freedom to vote their judgement on any issue.
  • They have to blindly follow the direction of the party.
  • This provision goes against the concept of representative democracy.

2) The act turns legislator to be an agent of  the party

  • There are two broadly accepted roles of a representative such as an MP.
  • One is that they are agents of the voters and are expected to vote according to the wishes and for the benefits of their constituents.
  • The other is that their duty to their constituents is to exercise their judgement on various issues towards the broader public interest.
  • In this, they deliberate with other MPs and find a reasonable way through complex issues.
  • The anti-defection law makes the MP neither a delegate of the constituency nor a national legislator but converts them to be just an agent of the party.

3) Broken chain

  • The legislator is accountable to voters, and the government is accountable to legislators.
  • In India, this chain of accountability has been broken by making legislators accountable primarily to the party.
  • This means that anyone from the party having a majority in the legislature is unable to hold the government to account.
  • This negates the concept of them having to justify their positions on various issues to the people who elected them to the post.

4) No incentive for MPs to understand policy choices

  • If an MP has no freedom to take decisions on policy and legislative proposals, there would be no incentive to put in the effort to understand the different policy choices and their outcomes.
  •  The MP becomes just another number to be tallied by the party on any vote that it supports or opposes.

5) Weakening of the accountability mechanism

  • While introducing the draft Constitution, Dr. B.R. Ambedkar said that the presidential form (such as in the United States) had higher stability but lower accountability.
  • This is because the President is elected for four years, and cannot be removed except for proven misdemeanour.
  • In the parliamentary form, the government is accountable on a daily basis through questions and motions and can be removed any time it loses the support of the majority of members of the Lok Sabha.
  • The drafting committee believed that India needed a government that was accountable, even at the cost of stability.
  • The anti-defection bill weakens the accountability mechanism.

6) The act fails to provide stability

  • The political system has found ways to topple governments by reducing the total membership through resignations.
  • In other instances, the Speaker — usually from the ruling party — has delayed taking a decision on the disqualification.
  • The Supreme Court has tried to plug this by ruling that the Speaker has to take the decision in three months, but it is not clear what would happen if a Speaker does not do so.
  • The premise that the anti-defection law is needed to punish legislators who betray the mandate given by the voters also seems to be flawed.
  • We have seen many of the defectors in States such as Karnataka and Madhya Pradesh being re-elected in the by-polls, which were held due to their disqualification.

Way forward

  • The problem arises from the attempt to find a legal solution to what is essentially a political problem.
  • If stability of government is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal systems.
  •  If parties attract members on the basis of ideology, and they have systems for people to rise within the party hierarchy on their capabilities rather than inheritance, there would be a greater exit barrier.

Consider the question “How far has the anti-defection law succeeded in preventing the destabilisation of the governments? Give reasons in support of your argument.”

Conclusion

The anti-defection law has been detrimental to the functioning of our legislatures as deliberative bodies which hold the executive to account on behalf of citizens. It has turned them into fora to endorse the decision of the government on Bills and budgets. And it has not even done the job of preserving the stability of governments. The Tenth Schedule to the Constitution must be repealed.

Anti Defection Law

Governor’s role in calling an Assembly Session

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Governor’s Discretionary Powers

Mains level : Issues with the office of Governor in recent times

In yet another tug-of-war between Kerala Governor and CM, the Governor has turned down a request to summon a special sitting of the Assembly to debate the new three central farm laws.

Q.The political nature of the office of the Governor, especially in Opposition-ruled states, has been underlined in several instances by courts. Discuss.

Governor and Assembly Session

  • The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…” says Article 174 of the Constitution.
  • The provision also puts on the Governor the responsibility of ensuring that the House is summoned at least once every six months.
  • Although it is the Governor’s prerogative to summon the House, according to Article 163, the Governor is required to act on the “aid and advice” of the Cabinet.
  • So when the Governor summons the House under Article 174, this is not of his or her own will but on the aid and advice of the Cabinet.

Can the Governor refuse the aid and advice of the Cabinet?

  • There are a few instances where the Governor can summon the House despite the refusal of the Chief Minister who heads the Cabinet.
  • When the CM appears to have lost the majority and the legislative members of the House propose a no-confidence motion against the CM, then the Governor can decide on his or her own on summoning the House.
  • But the actions of the Governor, when using his discretionary powers can be challenged in court.

Precursors set by the Supreme Court

  • A number of rulings by the Supreme Court have settled the position that the Governor cannot refuse the request of a Cabinet that enjoys the majority in the House unless it is patently unconstitutional.
  • The latest in the line of rulings is the landmark 2016 Constitution Bench ruling in which the Supreme Court looked into the constitutional crisis in Arunachal Pradesh.
  • The Governor had imposed President’s Rule in the state of Arunachal.
  • In ordinary circumstances during the period when the CM enjoy the confidence of the majority, the power vested under Article 174 must be exercised with the aid and advice of the CM and his CoM.
  • In the above situation, he/she has precluded [from taking] an individual call on the issue at his own will, or in his own discretion, the verdict said.
  • The court read: the power to summon the House as a “function” of the Governor and not a “power” he enjoys.

What Sarkaria Commission had said?

  • The Sarkaria Commission of 1983, reviewed the arrangements between the Centre and the states, had said that so long as the CoM enjoys the confidence of the Assembly, its advice in these matters, unless patently unconstitutional must be deemed as binding on the Governor.
  • It is only where such advice if acted upon, would lead to an infringement of a constitutional provision if the CoM has ceased to enjoy the confidence of the Assembly.

What happens if the Kerala government insists on holding the special session?

  • Since the Governor’s powers are limited with regard to summoning the House, there can be no legal ground to deny a request for summoning the session.
  • In such a political row, the Governor’s refusal can also be challenged in court.

Anti Defection Law

Merger of political parties under Tenth schedule

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Anti-defection law

Mains level : Issues over Anti-defection law

A political party is trying to win back its defected MLAs in Rajasthan. This has raised a new question- “Does the anti-defection law apply here?”

Try this question for mains:

Q.“Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.

What does “merger” mean a/c to Tenth Schedule?

  • The Tenth Schedule of the Constitution prohibits defection to protect the stability of governments but does not prohibit mergers.
  • Paragraph 4(2) of the Tenth Schedule, dealing with mergers, says that only when two-thirds of the members agree to “merge” the party would they be exempt from disqualification.
  • The “merger” referred to in Paragraph 4(2) is seen as a legal fiction, where members are deemed to have merged for the purposes of being exempt from disqualification, rather than a merger in the true sense.

The ‘merger’ Politics

  • The political party is arguing that a state unit of a national party cannot be merged without the party being merged at the national level.
  • However, the Tenth Schedule identifies this dichotomy between state units and national units.
  • As per Paragraph 4(2), “merger” of a party means merger of a legislative party of that House.
  • In this case, it would be the Rajasthan Legislative unit of the BSP and not the BSP at the national level.
  • Paragraph 1 of the Tenth Schedule which defines terms specified in the context of the anti-defection law states this clearly.
  • “Legislature Party” for the purposes of Paragraph 4 (which deals with mergers) means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions.

Role of Whip

  • Every legislative party identifies the party’s whip at the beginning of the Assembly’s term and conveys this to the Speaker.
  • A national leader’s direction cannot be considered a whip in the context of the anti-defection law.

On what grounds is the case-based?

  • The contention is that the merger is illegal and unconstitutional because, for a national party, such merger has to take place at the national level.
  • Supporting this argument, there are two decisions of the Supreme Court: the 2006 Jagjit Singh v State of Haryana, and the 2007 ruling in Rajendra Singh Rana and Ors vs Swami Prasad Maurya.
  • In these cases, the SC ruled that the split cannot be recognised primarily because not all these MLAs split at once.
  • The key aspect is that these cases deal with splits where when one-third of the members of a legislative party split; they could not attract disqualification as per Paragraph 3 of the Tenth Schedule.

Row over one-third

  • In 2003, through the 91st Constitutional Amendment, Paragraph 3 was deleted from the Tenth Schedule.
  • The amendment was made as the one-third split rule was grossly misused by parties to engineer divisions and indulge in horse-trading.
  • One-third was regarded as an easy target to achieve and the law now exempts defection only when it is at two-thirds (in a merger).

Are there any such precedents?

  • In July 2019, 10 of the 15 one party’s MLAs in Goa joined the other taking the ruling party’s tally to 27 in the 40 member House.
  • Since they formed two-thirds of the strength of the legislative party unit, they are exempt from disqualification.
  • However, the Speaker’s decision not to disqualify them is under challenge before the Supreme Court.
  • Similarly in Telangana in 2016, two years after the 12 out of 15 of MLAs joined the ruling party.
  • The Speaker recognised the defection as a merger since more than two-thirds had moved.

Anti Defection Law

When can a Governor use his discretion, how has the SC ruled?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Governor’s Discretionary Powers

Mains level : State legislature issues

Rajasthan Governor returning the fresh proposal by the state Cabinet – seeking to convene a session of the Assembly has raised fresh legal questions on the powers of the Governor.

Try this question for mains:

Q. “Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.

Who has the powers to summon the House?

  • It is the Governor acting on the aid and advice of the cabinet.
  • Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…”
  • However, the phrase “as he thinks fit” is read as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the cabinet.
  • Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.

What has the Supreme Court said in the past about the Governor’s power to summon the House?

  • It is settled law that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority.
  • In fact, on numerous occasions, including in the 2016 Uttarakhand case, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
  • In 2016, the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker expressly said that the power to summon the House is not solely vested in the Governor.

What did the SC say in the Arunachal case?

  • Referring to discussions in the Constituent Assembly, the court noted that the framers of the Constitution expressly and consciously left out vesting powers to summon or dissolve the House solely with the Governor.
  • It said that the powers of the Governor were substantially altered to indicate that the framers did not want to give Governors the discretion.
  • The Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of Ministers (CoM) with the Chief Minister as the head and not at his own, said the Court.

When can a Governor use his discretion?

  • Article 163(1) of the Constitution says that “there shall be a CoM with the CM at the head to aid and advice the Governor in the exercise of his functions, except some conditions for discretion.
  • However, in the 2016 case, the apex court has defined the circumstances if the aid and advice of CoM are binding on the Governor.
  • When the chief minister has lost the support of the House and his strength is debatable, then the Governor need not wait for the advice of the CoM to hold a floor test.

Novel situations are created these days

  • Generally, when doubts are cast on the chief minister that he has lost the majority, the opposition and the Governor would rally for a floor test.
  • The ruling party may attempt to stall the process to buy time and keep its flock together.
  • In a puzzling situation, in Rajasthan’s case, despite requests from CM, the Governor has returned requests to call for a session.
  • However, in the current case, the rebel MLAs have not defected from their party but have repeatedly stated before the Rajasthan HC that they are merely expressing their dissent within the party.

Back2Basics: Governor’s Discretionary Powers

The governor can use his/her discretionary powers:

  • When no party gets a clear majority, the governor has the discretion to choose a candidate for the chief minister who will put together a majority coalition as soon as possible.
  • He can impose president’s rule.
  • He submits reports on his own to the president or on the direction of the president regarding the affairs of the state.
  • He can withhold his assent to a bill and send it to the president for his approval.
  • During emergency rule per Article 353, he can override the advice of the council of ministers if specifically permitted by the president.

Anti Defection Law

Governor’s Discretionary Powers in Assembly Deadlock

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Discretionary powers of Governor

Mains level : Speaker vs Governor Tussle

A Constitution Bench judgment of the Supreme Court has held that a Governor is bound to convene a meeting of the Assembly for a floor test on the recommendation of the Cabinet.

Try this question for mains:

Q. “Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.

Resolving the deadlock

  • The judgment is significant in the present deadlock between the CM and the Governor over the summoning of an Assembly session for a floor test.
  • The Governor can summon, prorogue and dissolve the House only on the aid and advice of the Council of Ministers with the Chief Minister as the head.

The Nabam Rebia Case

  • The five-judge Constitution Bench judgment of the Supreme Court cited the Nabam Rebia versus Deputy Speaker on July 13, 2016.
  • It held that a Governor cannot employ his ‘discretion’, and should strictly abide by the “aid and advice” of the Cabinet to summon the House.
  • It held that the discretionary power of the Governor is extremely limited and entirely liable to judicial review.
  • The judgment was a consequence of then Arunachal Pradesh Governor J.P. Rajkhowa’s decision to advance the Assembly session, a move which led to unrest in the State and resulted in the President’s rule.
  • The Constitution Bench held Mr. Rajkhowa’s decision to be a violation of the Constitution.

Governor’s discretion: Limited to specified areas

  • The Supreme Court highlighted that Article 163 of the Constitution does not give the Governor a “general discretionary power to act against or without the advice of his Council of Ministers.
  • The court said the Governor’s discretionary powers are limited to specified areas like giving assent or withholding/referring a Bill to the President or appointment of a CM or dismissal of a government which has lost of confidence but refuses to quit, etc.

Back2Basics: Governor’s Discretionary Powers

The governor can use his/her discretionary powers:

  • When no party gets a clear majority, the governor has the discretion to choose a candidate for the chief minister who will put together a majority coalition as soon as possible.
  • He can impose president’s rule.
  • He submits reports on his own to the president or on the direction of the president regarding the affairs of the state.
  • He can withhold his assent to a bill and send it to the president for his approval.
  • During emergency rule per Article 353, he can override the advice of the council of ministers if specifically permitted by the president.

Anti Defection Law

Time to revisit the practice of floor test

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Provisions under 10th Schedule

Mains level : Paper 2- Anti-defection law, 10th Schedule

The growing trend of the toppling of the government by luring the MLAs of ruling party. The SC needs to reconsider the floor test usually ordered in such cases. The article analyses this issue here.

Reading Article 191(2) and 10th Schedule

  • Article 191(2) declares that a person shall be disqualified from being a member of the legislative assembly or legislative council of a state if he is so disqualified under the Tenth Schedule.
  • The Tenth Schedule to the Constitution contains “provisions as to disqualification on ground of defection”.
  • Tenth Schedule also fixes the relationship between a member and a political party which selected him as a candidate.
  • It also provides one of the grounds for disqualification: “If he voluntarily gives up his membership of such political party”.
  • The decision as to disqualification is left to the absolute discretion of the Speaker.

Constitutional morality and 10th Schedule

  • Tenth Schedule brings to the fore the need to emphasise “constitutional morality”.
  • Constitutional morality means “strict adherence to the core principles of constitutional democracy”.
  • So, Constitutional transgressions by MLAs coming through a “party platform” to serve the people for five years (Article 172), cannot be accepted.
  • In so doing, these MLAs forget the oath, taken under Article 188 of the Constitution to bear true faith and allegiance to the Constitution of India as established by law.
  • Legislators do not have absolute freedom to behave in any way they like.

Issues with the floor test

  • When ruling party MLAs are lured with rewards, political or otherwise, then the “floor test” becomes constitutionally immoral and unjust.
  • This will amount to circumventing the Tenth Schedule through engineered defections through the judicial process.
  • It is high time the judiciary revisited the use of a “floor test” to prove a majority in a legislature.

Consider the question “Examine the ways in which a member of the house is deemed to have given up his membership under the 10th Schedule as interpreted in the various judgements. Also, analyse the implications of conducting a floor test in a situation when members of the ruling party are lured with rewards.”

Conclusion

Judiciary must take note of the toppling of the majority government through luring of the MLAs and subsequent floor test by the courts. The floor test in such a situation needs reconsideration.

Anti Defection Law

Judicial intervention in Anti-defection Proceedings

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Tenth Schedule

Mains level : Issues over Judicial discretion in Anti-defection

A Supreme Court Bench is scheduled to hear an appeal filed by the Rajasthan Assembly Speaker’s office challenging the State High Court order to defer anti-defection proceedings against former Deputy CM.

Try these questions:

Q. “The anti-defection law works best as an insurance against violation of the people’s mandate for a party, but it cannot be made a tool to stifle all dissent.” Discuss.

—–

Q.Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (CSP 2014)

(a) Second Schedule

(b) Fifth Schedule

(c) Eighth Schedule

(d) Tenth Schedule

What is the issue?

  • The petition said the HC has crossed its jurisdiction by asking the Speaker to put off his decision on the disqualification notices issued to dissident MLAs.
  • The HC order was an affront to the powers of the Speaker.
  • The High Court’s interim order granting extended time to rebel MLAs to file their replies to anti-defection notices amounted to a violation of Article 212 (courts not to inquire into the proceedings of the legislature).

Backed by Tenth Schedule

  • The petition said that judicial review of ongoing anti-defection proceedings was limited.
  • Notice is much prior to any final determination or decision on disqualification.
  • The proceedings, including the notice, are in the realm of the legislative proceedings under Paragraph 6(2) of the Tenth Schedule, the Speaker’s office argued.

Citing the Kihoto Hollohan case

  • The petition referred to the Constitution Bench judgment of the top court in the Kihoto Hollohan case in 1992 in this context.
  • Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a prior action would not be permissible.
  • Nor would interference be permissible at an interlocutory stage of the proceedings, the verdict says.

Must read:

Kihoto Hollohan Order (1992)

What does the dissident MLAs have to say?

  • The dissident MLAs had challenged the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification.
  • The MLAs had argued that the provision infringed their right to dissent.
  • But the Speaker’s office countered that Paragraph 2 (1)(a) of the Tenth Schedule was the law of the land.
  • A mere challenge to its constitutionality cannot efface it from the statute book.

 


Back2Basics

Explained: Anti-defection law and its evolution

Anti Defection Law

The Kihoto Hollohan Judgment and its Significance

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Highlights of the Judgment

Mains level : Issues over Speaker's discretion in Anti-defection

The 28 YO Kihoto Hollohan judgment has found its relevance in the case of ousted Rajasthan Dy. CM and some MLAs who were issued a notice under the anti-defection law.

Try this question from CSP 2019:

Q.The Ninth Schedule was introduced in the Constitution of India during the prime-ministership of:

(a) Jawaharlal Nehru

(b) Lal Bahadur Shastri

(c) Indira Gandhi

(d) Morarji Desai

Under debate: Speaker’s power

  • The power for this disqualification is vested in the Speaker, who is usually a nominee of the ruling party.
  • Since no action was taken by the Speaker on the disqualification petitions, a writ petition was filed before the High Court of Manipur in Imphal seeking directions to decide on the petition.
  • However, the court did not pass an order.
  • It said that the larger issue of whether a High Court can direct a Speaker to decide a disqualification petition within a certain timeframe is pending before a Constitution Bench of the Supreme Court.
  • The parties are left with the option to move the apex court or wait for the outcome of the cases pending before it.

The Kihoto Hollohan Judgment

  • The 1992 judgment of the Supreme Court in the Kihoto Hollohan versus Zachillu and Others has said that “judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman.
  • Nor would interference be permissible at an interlocutory stage of the proceedings said the Supreme Court.
  • The only exception for any interlocutory interference can be cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.

Free speech

  • The ruling party in Rajasthan has challenged the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification.
  • The MLAs have said the provision infringes into their right to express dissent and is a violation of their fundamental right to free speech as a legislator.
  • The Rajasthan HC Bench explained that the reason for limiting the role of courts in ongoing defection proceedings is that the “office of the Speaker is held in the highest respect and esteem in parliamentary traditions.

Exceptions to the Kihoto Judgment

  • The judgment had said that even the scope of judicial review against an order of a Speaker or Chairman in anti-defection proceedings would be confined to jurisdictional errors.
  • That is if its infirmities are based on a violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

Back2Basics

Explained: Anti-defection law and its evolution

Anti Defection Law

How Manipur defections put focus on Speakers’ powers to disqualify?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Tenth Schedule

Mains level : Issues over Speaker's discretion in Anti-defection

Manipur Speaker’s decision to disqualify some MLAs ahead of the Rajya Sabha election has raised questions once again on the Speaker’s powers to disqualify under the tenth schedule of our Constitution.

Try this question from CSP 2019:

Q.The Ninth Schedule was introduced in the Constitution of India during the prime-ministership of:

(a) Jawaharlal Nehru

(b) Lal Bahadur Shastri

(c) Indira Gandhi

(d) Morarji Desai

What is the Tenth Schedule?

  • The anti-defection law, referred to as the Tenth Schedule, was added to the Constitution through the Fifty-Second (Amendment) Act, 1985 when Rajiv Gandhi was PM.
  • 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.
  • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
  • This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
  • The law applies to both Parliament and state assemblies.

Exceptions under the law

  • Legislators may change their party without the risk of disqualification in certain circumstances.
  • The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
  • In such a scenario, neither the members who decide to merge nor the ones who stay with the original party will face disqualification.

Is there any time limit to decide on the matter?

  • The law does not specify a time period for the Presiding Officer to decide on a disqualification plea.
  • Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

Under debate: Speaker’s power

  • The power for this disqualification is vested in the Speaker, who is usually a nominee of the ruling party.
  • Since no action was taken by the Speaker on the disqualification petitions, a writ petition was filed before the High Court of Manipur in Imphal seeking directions to decide on the petition.
  • However, the court did not pass an order.
  • It said that the larger issue of whether a High Court can direct a Speaker to decide a disqualification petition within a certain timeframe is pending before a Constitution Bench of the Supreme Court.
  • The parties are left with the option to move the apex court or wait for the outcome of the cases pending before it.

The apex court’s reluctance to intervene

  • In 2018, however, the High Court, refusing the preliminary objections of the Speaker, decided to hear the case on merits.
  • It reasoned that since the remedy under Tenth Schedule is an alternative to moving courts.
  • It said that if the remedy is found to be ineffective due to deliberate inaction or indecision on the part of the Speaker, the court will have jurisdiction.
  • However, the High Court again did not pass orders since the larger issue is pending before the Supreme Court.

The apex court recommends-

  • The apex court has expressed its displeasure with the Speaker’s lack of urgency in deciding the disqualification petitions.
  • A three-judge bench of the Supreme Court ruled that Speakers of assemblies and the Parliament must decide disqualification pleas within a period of three months except in extraordinary circumstances.
  • This settled the law for situations where the timing of the disqualification is meddled to manipulate floor tests.
  • The court also recommended that the Parliament consider taking a relook at the powers of the Speakers citing instances of partisanship.
  • The court suggested independent tribunals to decide on disqualification.

Also read:

Explained: Anti-defection law and its evolution

Anti Defection Law

Institutional fixes and the need for ethical politics

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Anti-defection law.

Mains level : Paper 2- What are the solution to the issue of bypassing of the anti-defection law by the political parties?

The article discusses the recent event in Madhya Pradesh where a group of legislature resigned bringing down the government. A most important issue arising out such incidents is circumventing of the laws made to avoid such things from happening. Several such issues along with their solutions are described here.

New method to bypass the anti-defection law

  • The political activities in Madhya Pradesh represent a new method of bypassing the anti-defection law and toppling elected governments.
  • The government in Karnataka was brought down in July last year in a similar manner with 17 MLAs of the ruling coalition resigning and joining the BJP.
  • What method was used? Under this novel method, a set of legislators of the party in power is made to resign from the Assembly to reduce the total strength of the House enough for the opposition party to cross the halfway mark to form the government.
  • In the ensuing by-elections, the members who resigned were then fielded as ruling party candidates (most of whom have been re-elected in the case of Karnataka).
  • The same practice is likely to be repeated in Madhya Pradesh soon.

A question based on anti-defection law and its implication for healthy debate in the parliament was asked in 2013. And that issues still persist. So, take note of these issues.

Exploiting the loophole in the Tenth Schedule

  • This method of mass defection circumvents the provisions of the Tenth Schedule of the Constitution (better known as the anti-defection law)
  • What is the Tenth Schedule? The tenth schedule prescribes the grounds for disqualification of legislators: voluntarily giving up party membership and voting or abstaining to vote against party directions.
  • Resignation is not mentioned as a ground for disqualification.
  • However, the Speaker in Karnataka disqualified them for the rest of the Assembly’s term, thereby barring them from contesting the by-polls.
  • While the Supreme Court upheld the disqualification.
  • It stuck down the bar from contesting by-polls.
  • In Madhya Pradesh, since the Speaker has accepted the resignation of the MLAs, the defectors can in any case contest the by-polls.

Damaging the underpinnings of democracy

  • The recurrence of this model of defection signals the exploitation of the inherent weaknesses of the anti-defection law.
  • While solo legislators jumping ship might have reduced now, “horse-trading” seems to have gone from retail to wholesale.
  • This threatens the underpinnings of India’s electoral democracy since such surreptitious capture of power essentially betrays the people’s mandate in a general election.

Kihoto case is an important case in relation to the anti-defection law.

Time to reframe the anti-defection law

  • In this context, it is important to examine whether the anti-defection law fulfils any purpose.
  • This law raises fundamental concerns regarding the role of a legislator in a parliamentary democracy.
  • Issues with the law: It denies the legislator the right to take a principled position on a policy matter and reduces her to an involuntary supporter of the whims of party bosses.
  • Challenge to the constitutionality: The constitutionality of the Tenth Schedule was challenged for violating the Basic Structure of Constitution with regard to parliamentary democracy and free speech.
  • Judicial review of the Speaker’s decision: The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) in a 3-2 verdict upheld the law while reserving the right of judicial review of the Speaker’s decision.

What are the shortcomings in the anti-defection law?

  • Restriction on the freedom of legislator: The anti-defection law, on the one hand, severely restricts the freedom of a legislator and makes her a slave of party whips.
  • Failure in preventing the horse-trading: On the other hand, it has not been able to meet its primary objective of preventing horse-trading and continues to be circumvented to bring down elected governments.
  • This calls for reforms that address concerns at both ends of the spectrum.

Following two are the solutions offered here. They are important from Mains point of view. As solutions are often asked for the pressing issues.

Dinesh Goswami Committee and other suggestion

  • Restrict the scope of the binding whip: For addressing the first issue, as the Dinesh Goswami Committee also suggested, the scope of the binding whip should be restricted to a vote of confidence.
  • For addressing the second issue, it is best to institutionalise the Karnataka Speaker’s decision to bar the defected members from contesting in the ensuing by-poll, if not for a longer period.
  • This will disincentivise MLAs from jumping ship.
  • These reforms would require a constitutional amendment to the Tenth Schedule, an uphill task under the current circumstances.

Conclusion

We are facing a deeper challenge of the corrosion of India’s parliamentary system, for even in jurisdictions without such anti-defection laws, we do not see “horse-trading” and “resort politics”. Hence, beyond institutional fixes, we also need a popular articulation of an ethical politics that causes the public to shun such political manoeuvres.


Back2Basic: What is the Tenth Schedule?

  • The Tenth Schedule was inserted in the Constitution in 1985.
  • 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.
  • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
  • This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
  • The law applies to both Parliament and state assemblies.
  • Exceptions under the law: Legislators may change their party without the risk of disqualification in certain circumstances.
  • The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
  • In such a scenario, neither the members who decide to merge nor the ones who stay with the original party will face disqualification.
  • Is there any time limit to decide on the matter? The law does not specify a time period for the Presiding Officer to decide on a disqualification plea.
  • Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

Anti Defection Law

Supreme Court Removes Manipur MLA Under The 10th Schedule

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Discretionary powers of the Supreme Court

Mains level : Executie and Judiciary

The Supreme Court has removed a Minister against whom disqualification petitions were pending before the Speaker since 2017.

  • The court invoked its discretionary powers under Art. 142 of the Indian Constitution.

What is Article 142?

  • Article 142 of the Constitution empowers the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
  • Any decree so passed or orders so made shall be enforceable throughout the territory of India.
  • The phrase ‘necessary for doing complete justice’ encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome.
  • The power under Article 142 can be exercised when the SC has to decide difficult cases where adequate laws may not exist, or existing laws may not be adequate, in order to deliver complete justice.

Scope and limitations

  • Supreme Court in State of Punjab v Rafiq Masih (2014) has opined that- Article 142 of the Constitution of India is supplementary in nature and cannot supersede the substantive provisions, though they are not limited by the substantive provisions in the statute”.
  • Article 212 of the Constitution bars courts from inquiring into proceedings of the Legislature.
  • In this case, however, prompted by the fact that the Speaker’s conduct has been called into question on several occasions, the court invoked Article 142.
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Laxman Naik
Laxman Naik
1 year ago

Good content

vicky hooda
vicky hooda
1 year ago

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