The Legal Arc Volume 1 Issue 1 Articles
Piyush Kaushal Singh
Piyush Kaushal Singh is pursuing BBA LL.B from Bharati Vidyapeeth New Law College, Pune. Currently, he is in Fourth-year. He loves to read and write and has a keen interest in politics. He has published various articles on diversified contemporary subjects and loves to explore new perception for any problem.
The recent fiasco in the Rajasthan State Assembly has established how defection in Indian politics has become an anathema among the masses but still professed rigorously by some rapacious or perhaps disenchanted politicians. However, the real problem is not with its mischievous invocations but an oblivious attitude by the ruling dispensation and judiciary. The pattern evolved to subvert the applicability of Anti Defection law is axiomatic. Therefore, it seems paramount to take actions but not in a form of punishment, instead of by mending and fixing the lacuna of existing laws.
Moreover, the problem is not with disenchanted politicians as they should have an option to seek an alternative in other parties. The real matter of concern is the temptation of illegal gratification by those acquisitive legislators, who are flocking to other parties for a mere pittance. No legislation in the world could change this practice except a collective deprecation by the common people. Besides, the denunciation should manifest in a substantial form and should not be confined in abstract philosophy.
The amendment to the Constitution of India to insert Tenth Schedule was to inculcate deterrence among politicians, who would defect from one party to another on inducement. The infamous incident of 1967, involving an MLA Gaya Lal, who switched his party affiliation thrice in the same day, led to this infamous phrase, “Ayya Ram Gaya Ram” which means, “switching allegiance”.
Historical Background of Anti-defection Law
The need for robust legislation was felt in the 1960s when politicians switching allegiance had become the norm. It was ubiquitous in almost every party. The virulent practice had become so contagious that ministry was offered to any ambitious MLA and any number of minsters could be in a cabinet. Opposition party with an aspiration to come into power used to entice MLAs by offering them various ministries, leading to various Faustian bargaining between the politician and political party.
Therefore, to stop this sordid infirmity to the system, the then-government thought of enacting legislation to curb and regulate this practise to an extent. Thereafter, when this legislation was passed and brought into effect, initially there was a sense of deterrence among the politicians. However, legislation without varying interpretation and loopholes cannot be considered a dynamic law. Nevertheless, it also leads to variegated circumvention by different vested interest groups. By that time, political parties were already in search of some alternative method to save themselves from this robust legislation. Finally, with the advent of a new government, they found a new mechanism for defenestrating governments.
Contents of Anti-defection Law
The Anti-defection Law was passed in the year 1985 through the 52nd Amendment Act to the Constitution of India. It lays down the circumstances which will attract disqualification for a legislator. There are two grounds on which a legislator can be disqualified.
Firstly, if a member voluntarily gives up the membership of the party, he shall be disqualified. However, voluntarily giving up the membership is subjected to variegated interpretation. Voluntary giving up the membership is not the same as resigning from the party. The manifold judgments of the Hon’ble Supreme Court explicitly reiterate that “voluntarily giving up should not be construed in its literal sense. Therefore, though, a legislator has not resigned, the presiding officer/ speaker has been conferred with the power to make a reasonable inference as to what constitutes voluntary resignation through the conduct of the legislators”. Hence, even without resigning, a legislator can be disqualified if by his conduct the Speaker/Chairman of the concerned House draws a reasonable inference that the member has voluntarily given up the membership of his party.
Secondly, if a legislator votes in the house against the direction of his party and his action is not condoned by the said party, he can be disqualified. There are certain exemptions accorded to the legislators such as if they merge with or into another party then, in that case, they will be exempted from disqualification, 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.
Subversion of Anti-defection Law and the recourse lying ahead
Anti-defection law states that a legislator is said to have given up his membership if they voluntarily renounce it 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. As a consequence, in case any legislator abstains or cast his vote to other parties in a trust vote then he could be deemed to have resigned and the speaker could disqualify him, which means that he seizes to be a member of that party and once disqualified, he will be barred from contesting an election in the remaining period of the assembly.
The pattern developed by the political parties to evade this law was to make the legislator resign from their post and then after the trust vote, seeking by-election and subsequently, by honouring the commitment, respective political parties will give them the ministerial birth as promised.
Nevertheless, whenever a law has been ostensibly circumvented by some vested group, the judiciary has come to the rescue. Whereas, in this issue, the Hon’ble court has done nothing but juggle around at different positions.
There are manifold of instances, where the Hon’ble Court on the same circumstances has taken different positions. Initially they asked the speaker to decide on disqualification issue early in a time-bound fashion and later on they scorned the speaker on showing such expediency on deciding the matter. The only similarity in this entire fiasco was, at different time, with different state, with a different government, only one party had the benefit. At the end of the day, only the ruling dispensation was able to evade blame.
Notwithstanding the facts, the nexus of underscoring this anomaly is not to cast an indictment on one political party but to ensconce the reluctance the judiciary carries to attribute any malignity to the ruling dispensation. With extensive scrutiny, it will become evident as to how different government at times have resorted to this sinister move and how the Hon’ble Courts have acquiesced to the ruling incumbency.
Therefore, it leads us to the point that how new legislation is required to deal with this menace and stop nefarious legislators from shifting their allegiance from one party to another on the promise of gratification. Renegades needs to be punished, but not in the conventional way. In no time that law will be repealed on the pretext of the law having a draconian texture.
Hence, the very force or allurement that drives these legislators to shift their allegiance, must be abrogated. The first is a promise of ministerial birth, once this is out of their purview they will fall in line. So, the first stipulation for turncoats would be that if they defect from one to another they cannot become a minister in that term of assembly. Nevertheless, if they are forming their party then they can become minster, provided, they are not allying with other parties to overthrow the existing government.
Secondly, they could contest the by-election, if not disqualified. However, they should submit their entire financial transaction in the public domain for the time being to ascertain that no illegal gratification in the form of inducements has been received by the defecting legislator.
Lastly, the legislator should be allowed to vote against the wishes of their party, if the matters are policy-related and do not have any bearing to the party stability. Therefore, legislators across India should be conferred the power of working according to their conscience and shall only be obligated to vote according to their party, when their survival is in question or at the time of passage of the annual budget or no-confidence motions.
It should be borne in mind that all the above-mentioned points are not immune from Constitutional scrutiny and thus, if questioned, may manifest some dichotomy. Therefore, the future course of action cannot be determined on the premise of Constitutional rectitude but rather on expediency. There are times when various legislation was passed on the principle of pragmatism, such as preventive detention laws, land laws, etc.
Furthermore, the need of the hour is to deal with the arbitrary power vested in the hands of the presiding officers. The real reason for this chaos could be traced to them. Various expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President of India, in case of MPs, or the Governor of the State, in case of MLAs on the advice of the Election Commission. This would be similar to the process followed for disqualification in case the person holds an office of profit i.e., the person holds an office under the central or state government which carries a remuneration, and has not been excluded in a list made by the legislature. If they cannot shift the power to the aforesaid person then they should lay down a mechanism for the speaker to decide the matter in a time-bound fashion.
Moreover, when a legislator is found colluding with other political parties, a blanket ban should be imposed on him to not contest elections for consecutively five years irrespective whether an election is approaching ahead or has already commenced. The measures may seem rigid at the outset but are suitable to the present atmosphere. This is the only way of adding deterrence among the mischievous wicked politicians willing to sell their soul.
Consequently, the Courts have held that they will not intervene into the domain of speaker/ chairman while they are deciding the disqualification proceeding and only after the disqualification matter is decided can the aggrieved party can approach the Court.
Successful Execution in the Past
Many states like Karnataka, Madhya Pradesh, Goa etc., have borne the brunt of this new ploy. Whereas, in Maharashtra, a more audacious subterfuge was used, which was quite unprecedented and historic. These three states have seen a defection which was in no way surreptitious, rather, it was conspicuous and apprehended by every establishment that a horse-trading of this sort might happen to defenestrate the government to forge an unscrupulous alliance. This iniquitous conduct was only possible in our system due to this inept repugnant law. Time and again, committees have recommended making substantial reform in the law but, the government of that day could ill-afford those changes as it will vitiate their future sinister plan. Therefore, various government at times have unleashed this kind of abhorrent practices to our system and has left an indelible blemish to our democracy.
Paradoxical Judgement of Rajasthan High Court
The judgement of the Rajasthan High Court created a digression to a quiet punctilious system. It seems to be a classic case of judicial impropriety at the outset and a judicial overreach from the core. In the case of, Kihoto Hollohan Vs Zachilhu, it was held that “though the jurisdiction of courts under Articles 136, 226 and 227 is not completely taken away given the finality clause in Para 6 of the Tenth Schedule, the scope of judicial review does get limited and excluded in respect of an act committed by the Speaker within his jurisdiction. In other words, if the Speaker has acted in the exercise of and within the confines of his jurisdiction under the Tenth Schedule, Constitutional Courts will not interfere with it in the exercise of their powers of judicial review. It was made clear that judicial review is not available at a stage before the final decision of the Speaker in the form of any quia timet relief at an interlocutory stage”.
Moreover, the issue relating to the jurisdiction of a high court to pass interim orders before the final decision of the Speaker has already been settled by the Supreme Court in the case of, Speaker, Haryana Vidhan Sabha v. Kuldeep Bishnoi. It was held that given the Constitutional scheme of the Tenth Schedule “normally judicial review could not cover any stage before the making of the decision by the Speaker or the Chairman of the House, nor was any quia timet action contemplated or permissible”. It was further stated that, “restraining the Speaker from taking any decision under Para 6 of Schedule X is, in our view, beyond the jurisdiction of the High Court, since the Constitution itself has vested the Speaker with the power to decide Para 6 and care has also been taken to indicate that such decision of the Speaker would be final. It is only thereafter that the High Court assumes jurisdiction to examine the Speaker’s order.
Therefore, the decision taken by the Rajasthan High Court is unprecedented and has disregarded the law laid down by the Supreme Court. The aforesaid judgement explicitly states that the Court does not have the power to entertain any plea before the making of the decision of speaker or chairman. The Rajasthan High Court has defied the precedent laid down by the Supreme Court and thus the only probable rationality in these circumstances ought to be to hold the judgement erroneous and rescind it. Though, this will not result in the reinstatement of past development and could be set aside for its infructuous nature. Nonetheless, the fact that this judgement was bad in law and sets a bad precedent is sufficient for repudiating it.
Defection has become a ubiquitous subject in the democratic corridor. It is believed these days that the ruling dispensation has a monopoly over state government and irrespective of the outcome of an election, ultimately, at the end of the day, the result is going to be in the favour of the ruling party. Defection is a facet of every political party and therefore shall not be seen as an exclusive prerogative of any one party. Moreover, the mechanism devised by the current ruling dispensation manifests the conspicuous lacunae in our existing structure. It should be borne in mind that every problem has a solution, provided it is addressed and acknowledged properly. The need of the hour for our political parties is that they should rise to an occasion and consider this imbroglio as a prodigious impediment in the nation’s development. It has led to chaos and uncertainty which resulted in shambolic handling of the States’ economy. The time has come when the Centre has to understand that they are sabotaging the States’ development instead of unscrupulous transitory power.
 Ravi S. Naik vs. Union of India, 1994 AIR SC 1558.
 Vibhor Relhan, The Anti-Defection Law Explained, PRS Legislative Research (Dec. 6, 2017) https://www.prsindia.org/theprsblog/anti-defection-law-explained.
 Anirudh Burman, The Anti-Defection Law – Intent and Impact Background, PRS Legislative Research (Nov. 23, 2009) https://www.prsindia.org/sites/default/files/parliament_or_policy_pdfs/1370583077_Anti-Defection%20Law.pdf.
 Vibhor Relhan, The Anti-Defection Law Explained, PRS Legislative Research (Dec. 6, 2017) https://www.prsindia.org/theprsblog/anti-defection-law-explained.
 Kihoto Hollohan vs. Zachilhu, (1992) Supp 2 SCC 651 at para 110.
 Ibid. at para 39.