Amongst bigger states, after Karnataka and Madhya Pradesh, the Maharashtra post-poll alliance named Maha-Vikas Aghadi between Shiv Sena, Nationalist Congress Party (NCP) and the Congress has fell prey to defection. Shiv Sena won 55 seats in the 2019 Legislative Assembly elections in Maharashtra and formed a post-poll alliance with the NCP and the Congress to form the government under the leadership of Shiv Sena party supremo, Uddhav Thackeray. However, after an internal rift, senior Shiv Sena party leader Eknath Shinde along with 40 MLA’s split from the Shiv Sena and formed the government with the Bhartiya Janata Party (BJP)—with which Shiv Sena had a pre-poll alliance, and Eknath Shinde took oath as the Chief Minister of Maharashtra on 30th June 2022 by winning the vote of confidence of 164 MLA’s out of 288 in the floor test.Continue reading “Guest Post: Maharashtra Political Crises, Anti-Defection Law and the Supreme Court”
[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.
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.
- 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.
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.
[This is a post by Surabhi Srivastava, Contributing Editor]
Presently, we have come across the situations where the members of the legislative assembly are being disqualified or being given the notice to explain as to why they shouldn’t be disqualified from Legislative assembly. In this scenario, we need to understand first, the power of Speaker with regard to disqualification.
If we trace the history from post-independence there are multiple instances where MPs or MLAs have switched their party after getting elected. The most famous incident was from Haryana in 1967 where extreme political horse-trading, counter horse-trading and counter-counter horse-trading took place. Independent MLA Gayaram switched four different political parties in a span of 15 days. After such an incident, safeguards were placed in the constitution to keep a check on the elected members of the Parliament and Legislative Assembly against their misconduct.
Anti-defection law was inserted in 10th schedule of the constitution by 52nd Amendment Act of 1985 to disqualify any member of the Parliament or Legislative Assembly from switching the political party from which they have been elected.
Speaker has vast power under the constitution to disqualify any member of the assembly. Being the presiding officer of the house any petition for disqualification is to be placed before him. Since 2003 the political parties have started to misuse the powers of the speaker’s office for disqualifying the members of the assembly. We all know that a speaker is to be elected by the members of the assembly but it’s an unfortunate truth that the party in the majority selects any person amongst themselves as a speaker who will remain biased during the proceedings of the assembly in their favour.
Initially, any decision under the anti-defection law was not subjected to the judicial review but in 1993 through the case of Kihoto Hollohan vs Zachillhu And Others, the Supreme Court declared this provision as unconstitutional to the extent that, any decision of disqualification of any member of the assembly is subject to judicial review and can be challenged before the Supreme Court and High Court as a judicial review- part of ‘Basic structure’.
Misuse of Office of the Speaker and its Power
In 2019, a political crisis came up in Karnataka assembly where after election 17 MLAs of Congress they gave their resignation to K.R. Ramesh Kumar who was Speaker of the house. It was just before when congress was about to give confidence motion to the Speaker for making a government in the state. Being loyalist to congress party K.R. Ramesh Kumar while passing the order of disqualifying these MLAs, restricted them to contesting election until the term of the current assembly ends in 2023.
Affected MLAs approached the Court of Law against the order of the Speaker being unconstitutional and beyond the power of the House of Speaker. A three judges’ bench of Supreme Court in Shrimanth Balasaheb Patil vs Honble Speaker Karnataka upheld the order of the Speaker disqualifying 15 MLAs from Congress and JD(S) but struck out the period of disqualification. Supreme Court held that the speaker in the exercise of powers does not have the power to indicate the period for which a person is barred from contesting an election. This could be said as one of the defects of the defection law as there is no penalty imposed to the defecting member of the House – so there is no deterrence whatsoever.
Court further held that the Speaker, while adjudicating a disqualification petition, acts as a quasi-judicial authority and the validity of the orders thus passed is subject to judicial review before this Court under Article 32 of the Constitution.
Court further observed that there is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse-trading and corrupt practices associated with defection and change of loyalty for the lure of office or wrong reasons have not abated. Thereby, the citizens are denied stable governments.
Recently in July’ 2020, a similar issue came up in the State of Rajasthan where show cause notice was being issued by the Assembly Speaker CP Joshi after the Congress complained that Deputy Chief Minister Sachin Pilot and 18 MLAs had disobeyed the whip of the party to attend two Congress Legislature Party meetings held at CM House.
Sachin Pilot and 18 other MLAs moved to the Hon’ble High Court challenging legality and constitutional validity of such notice as such a party whip applies only when the assembly is in session. Hon’ble High Court vide its order requested the assembly speaker not to ake any further action on show-cause notices to the 19 legislators and to maintain “Status Quo” until 24th July 2020.
Felt aggrieved by this order Rajasthan Speaker moved to the Supreme Court challenged this order of “Status Quo” on the basis of the judiciary was ever expected” to intervene in such matters resulting in “constitutional impasse”. As per the Constitution bench, the Judiciary cannot interfere in the discharge of the duty of the speaker. However, it was contended that only notice was issued to the MLAs. The decision on the matter was yet to be taken. Unfortunate that the elected representatives are circumventing through Judiciary. Three judges bench led by Justices Arun Mishra, B R Gavai and Krishna Murari while refusing to grant stay against the order of the High Court observed that “serious questions related to democracy” are involved in the matter.
Court further observed that the “voice of dissent cannot be suppressed in a democracy”. They had all been elected by the people and being their representative they have all the right to raise their voice and their voices cannot be suppressed. If some members of the political party do not agree with the agenda of the party, it will not be called for the disqualification of those members merely because they do not agree with the party.
Thus, to conclude, we can vividly witness how the powers of the speaker are being misused or being used in the most biased way. The position of the speaker is a constitutional post whose sanctity deserves to be maintained, however, in the above-mentioned instances the picture is truly disappointing. In simpler terms, political games put a wrong mark on the provisions of the constitution, which as a citizen makes us feel like the construction of fraud on the Constitution.
“Well, we cannot vote according to our conscience. There is the Party Whip. God save us from this party system.”Mahboob Bahadur in the Constituent Assembly on 08.11.1948 while criticising the adoption of British Parliamentary Executive system.
Recently, there has been a Constitutional Crisis which has occurred in Rajasthan. Deputy CM Sachin Pilot and along with others have raised “genuine concerns” with Chief Minister Gehlot and his leadership. Subsequently, the Pilot camp went to Delhi and the Chief Whip of the Congress party called Legislative party meetings on 13.07.2020 and 14.07.2020 with “no agenda”. Both of them were not attended by the Pilot camp. Instead of that, the Chief Whip filed complaint under para 2(1)(a) of 10th Schedule of the Indian Constitution for defiance of the whip. Then, the Speaker of the House issues show-cause notice to Pilot Camp and sought explanations within 2 days. Now, the question arises, who is a whip and what are the roles of the whip? Whether whip applies for actions expected out of members outside the House as well?
“Whip”: Origins, Contemporary Relevance and Roles
The office of Whip is a purely British Institution and there is a saying that “Parliament without a Whip’s office is like a city without sewerage.” The streamlined and coherent running of the Parliamentary machine hinges largely upon the Whips. In the Parliamentary form of Government, the Whips who are chosen from the Political Party in power and opposition formulate vital links in the internal Organisation of political parties inside the Parliament. They are principal office-bearers of the parties in Parliament – basically disciplinarians. According to Dr Radha Kumud Mookerji, the working of Buddhist Sangha shows that there existed the whip who was called “Ganapuraka”.
“To make a House and to keep a House” are said to be the other important functions of Government Whips. “To keep a House”, says Ivor Bulmer Thomas, “is to ensure that there is always sufficient attendance of members to form a quorum and more particularly to give support to their own chosen speakers.”
In India, The Parliament has passed on Act known as the Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998. The Minister of Parliamentary Affairs is the “Chief Whip of Government”. He is tête-à-tête accountable to the Leader of the House. In respect of State Assemblies, “Chief Whip” is defined under Salary Allowances of the Chief Whip in the Legislative Assembly of the National Capital Territory of Delhi Act, 2003 as “Chief Whip in relation to the Legislative Assembly of NCT of Delhi means that MLA who is, for the time being, declared by the majority party to be the Chief Whip in that House of the party forming the Government and recognized as such by the Speaker of the Legislative Assembly.” His duties involve: [1.] advising the Government on Parliamentary business and, [2.] to maintain a close liaison with the Ministers concerning parliamentary business affecting their Departments. There are other multifarious functions of the Whip such as supplying the list of speakers on a particular bill, assist members in the general interest of the party, attend meetings of Business Advisory Committee, finalise government’s business, decide when the session will commence and many other roles.
But after 52nd Amendment to the Constitution, which introduced the Schedule X [to curb political defections –“unethical political defections” constituted “a canker eating into vitals of democracy”], the role of the Whip became somewhat easier. Under the Schedule X, a legislator who voluntarily gives up the membership of the Part [and] legislators who violate their party’s whip stand to lose their place in Parliament or State Assemblies. Much of the rationale for such law – indicated by the Parliamentary Debates that went into its framing – seems to have been the prevention of horse-trading of MPs and MLAs. But the scope of Schedule X is broader than that since it does not just prohibit legislators from voting against their party during a no-confidence vote. Rather, it also seeks to forbid them from voting against the party line on any legislative matter where a whip is issued [as happened in the Rajasthan Assembly case – where the Pilot camp didn’t follow the issued Whip]. In the case of Rajendra Singh Rana v. Swami Prasad Maurya, it was held by the Hon’ble Supreme Court that:
“In the case of defiance of a whip, the party concerned is given an option of either condoning the defiance or seeking disqualification of the member concerned…. the decision to condone, if taken, must be in 15 days.”
India along with Guyana, Pakistan, Bangladesh and Zimbabwe is among a few states which bind the legislators to their political parties in this way.
The MP/MLAs occupy the specific perspective of their constituents [from where they are elected] and share a passionate link to their cause. And yet, their advocacy is rooted in a higher commitment to the common good that allows them the ability to distance themselves from their constituents’ partial perspectives. This allows them to subordinate the claims of their electors to the demands of ‘reason, justice and the good of the whole’ during deliberation in parliament. But herein, there is a conundrum between freedom of speech of a legislator and issuance of the whip—does issuance of whip violate the freedom of speech granted to every legislator in this country [as per Article 105 and Article 194]? Although this “freedom” is “subject to the provisions of the Constitution”, the question remains about the extent of application of Whip. That is, whether Whip applies for actions expected out of members outside the House as well.
Application of Whip outside the House: Suggestions
This is one of the seminal questions which arise from the Rajasthan Constitutional Crisis and has also been pointed out by the Rajasthan High Court in its order dated 24.07.2020 that are members expected to act accordingly to whips outside the House as well? In my opinion, the High Court is wrong in framing this question as political questions must be answered in political forums and not be confined to quibbling in courts.
In the Parliament or State Assembly, Members have to go by their party whips, and therefore a decision of a Parliament is always necessarily a decision of the majority party. There is no objection in the strengthening of the political parties so that the will of Majority prevails in a political party as when a legislator joins a party and succeed on that ticket, he renders himself subject to the discipline and control of the party. Issuance of the Whip is not governed by any law [neither the Rules framed under Tenth Schedule nor the Rules of Procedure and Conduct of Business] But should that rule must apply outside the House as well and bind the legislator on every occasion? On such an occasion if a Whip is issued outside the House, then it leaves no room for dissent and deliberation. It would be appropriate if it is provided in the rules of Parliament or Assembly that a Whip shall be issued only on occasions when the voting is likely to affect the existence or continuance of the government and not on all sundry occasions [be it outside the house or inside].
On this Shri Mahavir Tyagi said in the Constituent Assembly on 02.08.1949 that “I do not take its [Congress party’s] Whip as a mandatory Whip and I do not obey it unless I am myself convinced of it.” Although, he agreed that a legislator must follow the whip inside the House and differentiated that from voting in Constituent Assembly, but didn’t comment about a scenario where a legislator is expected to act according to Whip outside the house or not. The Law Commission of India 170th Report on Reform of the Electoral Laws (May 1999) recommended that,
“It is desirable that the whip is issued only when the voting in the House affects the continuance of the government and not on every occasion. Such a course would safeguard both the part discipline and the freedom of speech and expression of the members.” (Para 9.14)
Coming back to Rajasthan Crisis, if there is any difference of opinion, then it must be ventilated within the party itself and the Pilot camp may fight within the party to have his point of view adopted by the Party. The issuance of Whip, outside the house, on such trivial issues [when there is a disagreement between Chief Minister and Deputy Chief Minister] must not be sustained as it violates the freedom of speech of a legislator which is ensured under Article 194 and Article 19(1)(a) as well. The Courts must stay away from political thickets and must not set a precedent in this issue. They must be reminded about Portia’s warning in The Merchant of Venice: “Twill be recorded for a precedent. And many an error by the same example/Will rush into the state. It cannot be.”