[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.