Guest Post: Analyzing the Scope of Voluntary Forfeiture of Political Party Membership

[This is a guest post by Rohan Bhatnagar]

The Anti Defection Law under the Tenth Schedule of the Indian Constitution ensures that legislators maintain their allegiance towards their respective political factions. This article precisely analyzes the reasons behind members voluntarily forfeiting their party’s membership and provides solutions for curbing the same.

Introduction

Defection lures the Members of the Legislature to secure powerful berths. It is used as a bait for obtaining their services. Defection weakens the Opposition and India’s democratic foundations. The Tenth Schedule of the Indian Constitution specifies voluntary forfeiture of a political party’s membership as a basis for disqualifying a Member of the Legislature. The author purports to provide precise analysis and solutions regarding the issue in this article.

Analyzing Statutory Provisions to determine Voluntary Forfeiture of Party Membership

Paragraph 2 (1) (a) of the Tenth Schedule stipulates voluntary forfeiture of political party membership as a ground for defection. According to this provision:

“2. Disqualification on ground of defection— (1) Subject to the provisions of [paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House—

(a) If he has voluntarily given up his membership of such a political party. ”

The provision necessitates that members must adopt the principles of political dignity and morality for prohibiting defection within the Legislature. Diligently adhering to these principles preserves the Legislature’s reputation. Further, it affirms allegiance to one’s political affiliation. 

The expression ‘voluntarily gives up membership’ is wider than the term ‘resignation’. A member may forfeit his party membership expressly or impliedly. It is discernible through his conduct. It must be authentic and must not be made under coercion. It becomes effective upon the occurrence of such an event. 

Rival parties entice members into assessing and affirming considerations such as ministerial berths. Factors including offering pecuniary benefits, differences in ideological and policy-related affairs and a party’s functioning style constitute defections.

The Tenth Schedule also includes splits outside the floor of the House within its purview. When members form a separate faction within the same political party by voluntarily forfeiting its membership, it attracts disqualification proceedings. 

In Rajasthan, several members of the State Legislature allegedly visited Delhi to collude with the opposing faction. The Speaker disqualified them for attempting to topple the State Government. Similarly, in Madhya Pradesh and Karnataka, legislators voluntarily resigned and defected to the opposing faction, inviting disqualification under the Tenth Schedule. 

The onus of proving lies on the person alleging that such a faction created a split in the original party. The test is a split involving one third party member. The time for engineering such a split is immaterial. A floor test determines public confidence in a party’s leadership. 

Article 191 (1) disqualifies members under any one of the following heads, namely, “being chosen as” a member or for “being a member” of the House. Article 191 (2), on the other hand, uses the phrase “for being a member of the House”. Thus Article 191 (2) and Paragraph 2 of the Tenth Schedule employ the same language.  

It implies that disqualification under the Tenth Schedule differs from the other categories enunciated under Article 191 (1). Members are not barred from consequently contesting elections, thus avoiding subsequent prohibition from becoming members of the Legislature. Further, Section 36 (2) of the Representation of People Act, 1951 empowers the Returning Officer to reject a candidate’s nomination. 

The Speaker or the Chairman acts as a Tribunal in disqualification proceedings. He must act in a quasi-judicial capacity for determining the question. His decision must be based on objective facts. The 33rd Constitutional Amendment mandates that the Speaker must accept a member’s resignation. 

Thus members cannot resign unilaterally. He inquires about the resignation’s genuineness upon its receipt. ‘Genuineness’ refers to its authenticity and the members’ personal choice to resign. It may be rejected if forged or made under coercion. However, the Courts may review his decision.

The Court’s scope for judicial review under Articles 136, 226 and 227 respectively is confined to the grounds of mala fides, violation of constitutional mandate, perversity in the Speaker’s decision and non-compliance with the principles of natural justice.  

Consequently, it bars members from using privileges such as the right of publishing proceedings and its prohibition, the right of excluding strangers, disciplinary powers, the power for punishing for contempt and regulating internal proceedings if found guilty of defection. 

Other Provisions

  • The Constitution of India, 1950: Articles 75(1B), 164(1B) and 361B bar any person who is disqualified under the Tenth Schedule from being appointed as a Minister or from holding any political post from the date of disqualification till the date of expiry of his office term or his date of re-election to the legislature, whichever is earlier. 
  • The Representation of the People Act, 1951: Section 9(1) of the Representation of the People Act, 1951 mentions disloyalty to the State as a ground for disqualification. Such a Member may be disqualified for 5 years from the date of disqualification. 
  • The Members of Rajya Sabha (Disqualification on Ground of Defection) Rules, 1985: Rule 3(a) of the Rules stipulates that the ruling party’s leader must submit a written statement listing the names and particulars of his party members. Rule 4(2) states that Members must furnish information concerning their particulars as required by Form-III before the Secretary-General of the House. 
  • The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985: Rule 10 and Rule 11 are framed on identical lines as Rules 3(a) and 4(2) of the Rajya Sabha Disqualification Rules, requiring the Ruling Party’s leader to submit a written statement listing the names and particulars of his party members. Further, the members shall also furnish information concerning their particulars before the Secretary-General of the House.

Using Judicial Precedents for analyzing the Scope of Voluntary Forfeiture of Party Membership

Scope of the Tenth Schedule

In Kihoto Hollohan v. Zachillhu, the Supreme Court observed the role of political parties in the electoral process and remarked that the Tenth Schedule must exist to avoid tarnishing the society’s conscience and moral fabric. The Court further observed that Paragraph 2 (1) (a) of the Schedule provided for equal application of the principles of political propriety and morality across the vast spectrum of the Legislature. 

Thus, members of the Legislature must be prohibited from defecting to restore public faith in the electoral process. The Court also struck down Paragraph 7 which barred the Court’s jurisdiction to adjudicate matters concerning disqualification of members.

The 52nd Constitutional (Amendment) Act’s purpose was ensuring that Members of the Legislature do not change their sides easily, since these acts are capable of destabilizing the system. Explanation (a) to Paragraph 2 (1) creates a deeming fiction. Courts assume a grave situation and consider that such material facts exist. They pronounce their judgment accordingly. Fully enforcing it ensures that the defecting member cannot circumvent the legal provisions. 

Preserving Freedom of Speech and Expression

The Court in Kihoto Hollohan’s case observed that the provisions of the Tenth Schedule neither violated the freedom of speech and expression nor infringed the Parliamentary and the State Legislature proceedings stipulated under Articles 105 and 194.

The scope of the expression ‘Voluntarily Given Up Membership’ 

The term ‘voluntary’ implies that the resignation is not based on threat, force or coercion. The scope of the expression ‘voluntarily given up membership’ was examined in Ravi S. Naik vs. Union of India & Ors. The Court observed that ‘voluntarily giving up membership’ cannot be equated with ‘resignation’. It has a wider connotation. Further, a member’s conduct sufficiently infers that he has voluntarily forfeited his party’ membership. 

In G. Viswanathan vs. The Hon’ble Speaker Tamil Nadu Legislative Assembly, where members of the Legislature met the Governor and submitted him a letter requesting him to dissolve the Assembly, it invited disqualification under Paragraph 2 (1) (a) of the Tenth Schedule. It was held that voluntarily giving up party membership may be express or implied. The essential condition is a member joining an opposing political faction. 

Separate Factions within the same party and Coalition Governments 

Members can be disqualified under Paragraph 2 (1) (a) of the Tenth Schedule if separate factions exist within the same political party. The time gap of such a split is immaterial. It may occur through unilateral severance or detachment from party links. However, the provision is inapplicable where a member having a different political affiliation withdraws his support to the Chief Minister in a coalition government. Its rationale is that their allegiance lies to the people and not towards members of a particular political party. 

Conclusion

Defection is a social evil striking at the foundation of the Indian democracy. It is anti-democratic and corrupt as it involves only a personal gain and not a conscientious change of heart of the legislator. Political parties must lead the way in ethical governance by not indulging such practices. Defecting members should be eternally barred from contesting elections. Intraparty splits must also be prohibited. Further, the Election Commission’s opinion in disqualification proceedings as a sine qua non in disqualification proceedings before the President or the Governor advert to their final decision restores public faith in the electoral mechanism. 

Keshav Singh’s Case-I: A pamphlet which led to a Constitutional Crisis

In this post, I would be discussing the facts and incidents which led to paralysation of administrative machinery and a constitutional crisis.  Interestingly, due to these facts and circumstances, the largest bench of 28 judges was constituted—even more than the 13-judges bench in the landmark case of Kesavananda Bharti v. the State of Kerala.

Keshav Singh, resident of Gorakhpur (U.P.) and a worker of an opposition party [Socialist Party] published a pamphlet along with his two colleagues—titled Shri Narsingh Pandey ke Kale Karnamon ka Bhanda-Fod. In that pamphlet, they alleged that Narsingh Pandey, Congress party’s MLA, was corrupt. The pamphlet was distributed in Gorakhpur and the vicinity of the legislative assembly in Lucknow. The Congress party MLAs including Pandey were offended by the act, hence, they complained to the Speaker that the pamphlet ‘breached the rights and immunities enjoyed by the assembly and its members’. Keshav Singh and his two colleagues were summoned to appear before the House in Lucknow to receive a reprimand.

While the other two colleagues accepted a reprimand on 19th February 1964, Keshav Singh failed to appear before the House citing ‘lack of funds’ to travel from Gorakhpur to Lucknow. Subsequently, the Assembly ordered to arrest Singh and brought him to the assembly on 14th March. After he arrived at the assembly, he was ‘expected’ to be reprimanded just like his other colleagues, but he had other ideas. He refused to answer when the speaker of the assembly repeatedly asked him to confirm his name. He turned his back towards the Speaker and stood silently after every question was posed to him. Another incident happened which worsened the matter was that- Singh had written wherein he protested against the reprimand as statements in the pamphlet were true, and condemned the warrant of his arrest as ‘Nadirshahi’ (tyrannical). Then, the first woman Chief Minister Sucheta Kripalani moved a motion in the assembly for Singh to be imprisoned for 7 days and he was sent to prison. Until now, it was just gossip of the town.

On the 6th day of his imprisonment, an advocate filed a petition on behalf of Singh at the Allahabad High Court, seeking immediate release. It was contended that Natural justice principles were not followed as Singh was not allowed to defend himself and assembly lacked the jurisdiction to commit him to prison. The matter was placed before Justices Nasirullah Beg and G.D. Sehgal at 2 p.m. wherein Singh was represented by Advocate Solomon and assistant advocate general, K.N. Kapur, appeared on behalf of the state government. Kapur sought a pass over and requested the matter to be placed at 3 pm. However, at around 3 pm, when the case was called Kapur was not present, due to some reasons [whether deliberate or not—we never know]. Solomon argued the case and based on the arguments and facts, the High Court ordered that Singh to be released on bail subject to a condition that Singh should be present in court at every future hearing.

After this usual course would have been that state government should have filed an affidavit, but the Speaker, Madan Mohan Varma, a lawyer by profession thought this as a violation of the doctrine of separation of power and he had read the Mayne’s Parliamentary Practices– an authoritative book on Parliamentary procedures and practices. In his view, the order of the High Court “undermined the assembly’s exclusive authority to address a breach of its own privilege”. Surprisingly, after two days of the order, the House passed a resolution with a majority that Singh, Solomon and two High Court judges be bought “in custody” before the assembly to explain their acts. Imagine a judge of a constitutional court being summoned before the legislative house to justify his acts in the judicial capacity. Isn’t this violation of Article 211 which states that “[N]o discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties”?

From a mere political issue, the whole incident became a clash between constitutional institutions. It became more of a power game between the Hon’ble High Court and the Hon’ble Assembly. This was unprecedented and the judges of the High Court had no clue how to react to this summon of the Assembly. According to Senior Advocate Shanti Bhushan,

Justice Beg “was waiting with a loaded gun, ready to shoot down the marshals and protect the honour of the Allahabad High Court”.

There arose a conundrum between saving the honour of the Court and contempt of the Assembly. As per Chintan Chandrachud, “if the judges agreed to appear before the assembly, the episode would risk undermining the independence of the judiciary. On the other hand, if they appeared and offered a robust defence, the assembly might be left with no choice but to refrain from further action, lest it criticised for persecuting well-intentioned judges”. The judges to save their honour and the honour of the Allahabad High Court filed petitions before the High Court stating that assembly’s resolution violated Article 211 and they were represented by Advocate Jagdish Swarup. There was a conundrum about the bench allocation because what if the judges which decide the matter would also suffer similar consequences as faced by the petitioner-judges. Later Advocate Swarup offered his suggestion that all the judges of the high court (except Justices Beg and Sehgal) should sit together to hear the matter. This was a symbolic gesture and for the first time in the history of the Indian legal system, 28 judges sat for deciding the case. The rationale behind this unprecedented action was that securing custody of two judges was one thing, attempting to do so for every judge of the high court was quite another.

The judges sat in two rows which were also unprecedented and unseen. They admitted the petition and restrained the government from securing the execution of arrest warrants against the two judges. Later, even the assembly withdrew the arrest warrants against the judges and Solomon. This led to a lot of uncertainty and the police were rather confused about whether to arrest or not. As Chintan Chandrachud says,

If the police escorted the two judges and Solomon to the assembly, they would be complying with the resolution of the assembly but possibly in contempt of court. If they refused to do so, the police would be complying with the court’s order but defying the resolution of the assembly.

By this time there was a hassle in New Delhi as the news reached the Capital. The CM Sucheta Kriplani apprised the PM Nehru of the situation. Then, it was decided that a presidential reference shall be made to the President to “enable the court to rule decisively on the authority of the assembly on the one hand, and the courts on the other, to determine the scope of the privileges of the assembly”. The issue could have been decided by the Parliament or the assembly, but Nehru chose to refer it to the Supreme Court for further adjudication and ‘final decision’. A seven-judge bench was constituted which was headed by the Chief Justice Gajendragadkar in the Special reference no. 1 of 1964. [The law laid down by the Court, in this case, will be discussed in next posts on this blog]

In conclusion, an observation made by Chintan Chandrachud in this regard is worth mentioning,

“This case is worth remembering – if not nothing else, to demonstrate how easily constitutional institutions can turn against one another and, equally, how difficult problems are best solved through statesmanship rather than brinksmanship.”

[Note: I would like to thank Chintan Chandrachud for his insightful book “The Cases that India Forgot“]