THE CONSTITUTION: THE ANTI-DEFECTION LAW AND THE ONGOING POLITICAL DRAMA IN RAJASTHAN
The issue pertaining to defection is not only a concern for the nation like India. The practices of defection are almost practiced in all prominent democracies of the world that have adopted for party system.[i] The need and demand for a law in order to curtail the defection practices arose in India post 1967 after the incident that attracted that concern regarding such a practice that would defeat the democratic foundations of the nation. The popular incident of Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.[ii]
The Journey for a legislation in order to stop the defection practices began in 1967 under the chairmanship of the then Home Minister, Y B Chavan. The committee came up with recommendations and suggestions in 1969 in order to legislate a law to prevent such malpractices. Following the report of the Y B Chavan committee, two separate legislative attempts, both unsuccessful, were made to find a solution to defections. The first one was made by Indira’s Home Minister Uma Shankar Dikshit in 1973; the second, in 1978, by Shanti Bhushan, Minister for Law and Justice in the Janata Party government of Morarji Desai.
The third attempt — which was successful — was made in 1985, after the Congress won more than 400 seats in Lok Sabha in the aftermath of Indira’s assassination[iii] in the Rajiv Gandhi led Government.
THE LAW RELATING TO ANTI-DEFECTION
Schedule 10 of the Indian Constitution provides for the law relating to the Anti-defection. The law being enacted in 1985 had seen an amendment in the year 2003 and has been regularly in light due to the various defection practices. The statement of objects and reasons of the Bill said: “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.” The Law relating to the Anti-defection has been well explained in paragraphs 2 to 7 of the 10th schedule. The same can be understood as:
i. If a member of a house belonging to a political party voluntarily gives up the membership of his political party, or - Votes, or does not vote in the legislature, contrary to the directions of his political party. But it is to be noted that if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
ii. If an independent candidate joins a political party after the election and If a nominated member joins a party six months after he becomes a member of the legislature then in that case the safe would attract defection within the law provided under 10th schedule.
iii. The power to disqualify a member upon the proved defection vests with the Chairman or the Speaker of the House. In the cases where a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.[iv]
iv. It is important to note that Paragraph 4 provides for exception on the grounds of merger and the dame would not attract defection within the given schedule. The same provides that a person shall not be disqualified if his original political party merges with another, and, He and other members of the old political party become members of the new political party, or - He and other members do not accept the merger and opt to function as a separate group. But this exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.[v]
Therefore, it is clear from here as to what would amount to defection and who has got the authority to decide on the matters relating to defection. Despite of the law being in 10th schedule, there have been continuous cases of defections in our country. The Judiciary has also played some vital role in prescribing the boundaries of this law and has given time to time interpretation on the various aspects of the law.
THE JUDICIAL TREND
Despite of the law being on paper, the Judiciary had to time and again intervene in the matters relating to defection and give an interpretation related to the law enumerated in 10th schedule of the Constitution of India. There had been some notable decisions by the apex court on the issues involving defection in order to secure the rights and liberties enshrined under the Constitution of India. Some of the notable decisions also hold relevance in the ongoing political drama in Rajasthan.
The apex court while deciding on the question as if Right to freedom of speech and expression is anti-thesis to the 10thschedule of the Constitution in Kihoto Hollohon vs. Zachilhu and Others[vi] held that, “The provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution.” Further the court has found that, “Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the view expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines.”
In the other instance in Ravi S Naik v. Union of India[vii], an important question arose before the bench which was whether only resignation constitutes voluntarily giving up membership of a political party? The apex court while answering to this question gave a wide interpretation to schedule 10 of the constitution and held that, “The words “voluntarily giving up membership” have a wider meaning. An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party.” So, it was for the first time when the court emphasized on the importance of conduct as an important factor for giving up the membership apart from those two grounds as specified under the 10th schedule.
So, it is clear that raising a voice which is a fundamental right under the Constitution of India is not Anti-thesis to the 10thSchedule if the constitution. Also, the conduct of a member can also lead to disqualification. Therefore, the above two decisions hold authority in law and are required to be construed accordingly. It is also to be noted that if raising a voice constitutes defection then the said law would be anti-thesis to the basic structure of the constitution, and the same has been questioned by the Rajasthan High Court in the ongoing politico-legal drama.
One may argue that the conduct of Pilot attracts defection as according to the established precedents. But again the express denial of Sachin Pilot on joining some other political party establishes a question and creates an ambiguity to this established precedent. The express denial can not be construed over the conduct and both of these needs to be considered together and not individually and different.[viii] Therefore, it is clear from the established law and the precedents that there exists no defection in the ongoing political crises in Rajasthan.
INTERPLAY BETWEEN THE ONGOING DRAMA AND THE ANTI-DEFECTION LAW
The controversy arose when clear predictions were raised that Sachin Pilot along with this supporting MLA's (so called rebel) would join hands with the saffron colored BJP Party. But an interesting point arose when the former Deputy CM (Pilot in this case) clarified his stance of not joining any other Political Party. It was on 13th of July that the matter became more critical when the Rajasthan speakers issued a notice to the Rebel leader along with other members after the party sought their disqualification for not joining the meeting even after notice issued by the Whip. The same notice was challenged before the hon’ble Rajasthan HC stating that not attending a party meeting or a mere disagreement is not the ground for disqualification provided in the law of defection in the 10th Schedule. It is important to note that the law and the judicial trend has already been explained above. It is also negated that in the current situation concerning the Rajasthan crises there is no defection in light of “conduct” and the same can’t be a ground in the present case. The issue of dissent is yet another discussion that needs the consideration of the court. If dissent does not amount to defection then it would be important to see as to how courts interprets paragraph 2(1) of the tenth schedule in the light of the Basic Structure of the Constitution.
Apart from this the other set of question that has arisen from the ongoing drama is the power of the speaker/chairman and to that of the courts. The law well explains that it is the speaker or the chairman who has got the power to try the matters relating to defection. It is also well settled law that such a decision is subject to judicial review. But in the current situation, the intervention of the courts on the issue of defection remains a question of debate.
It is well settled that, To the extent that the provisions grant finality to the orders of the Speaker, the provision is valid. However, the High Courts and the Supreme Court can exercise judicial review under the Constitution. Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairman as held by the constitution bench in Kihota Hollohon vs. Zachilhu and Others.[ix]
Further the view of the apex court in Ravi S Naik v. Union of India[x] becomes important where the court cited the case of Kihota Hollohon where it had been said that the Speaker while passing an order under the Tenth Schedule functions as a Tribunal. The order passed by him would therefore be subject to judicial review. Also in the court held that the rules under the Tenth Schedule are procedural in nature. Any violation of those would be a procedural irregularity. Procedural irregularity is immune from judicial scrutiny.
Therefore in light of these judicial pronouncements, the law of defection and the ongoing political congestion, it becomes important to note that the importance and role of the speaker/chairman finds good. The involvement of the court in the 1stinstance does not find good and is against the premises of separation of Power.
Concluding the overall situation of law pertaining to defection and various judicial pronouncements, it is important to note and understand that Schedule 10 well prescribes for the procedure to be adopted to resolve such issues and the role of the court arises later on when the matter is already decided by the speaker/chairman. However, it would be important to note in the current case as to how the court interprets the issue of dissent with that of paragraph 2(1) of the tenth schedule of the Constitution.
[i] Subhash C. Kashyap, The Anti-Defection Law Premises, Provisions and Problems, 35 JPI (1989) 9 at 9. [ii] The Constitution (52nd Amendment) Act, 1985, (Bill No. 22 of 1985) [iii] Chakshu Roy, Explained: The limits of anti-defection, (August 15, 2020, 06:05 P.M.) https://www.prsindia.org/media/articles-by-prs-team/explained-limits-anti-defection [iv] The Constitution of India, 10th Schedule, Para. 10 [v] Id. [vi] AIR 1993 SC 412 [vii] AIR 1994 SC 1558 [viii] PTI, I am not joining the BJP, says rebel Congress leader Sachin Pilot, (August 15, 2020, 06:05 P.M.) https://www.deccanchronicle.com/nation/politics/150720/i-am-not-joining-the-bjp-rebel-sachin-pilot-denies-plans-to-join-sa.html [ix] Supra note vi. [x] Supra note vii.
"The views expressed are personal and those of the author."