Author: Prachi Talekar, K.G Shah Law School, SNDT University
Abstract
The purpose of this article is to shed light on the legal and political complications of the Anti-Defection Law (10th schedule of the Constitution of India). It was made into an act to deal with the problem of frequent defection of politicians, whichwas responsible for political instability (“Aaya Ram, Gaya Ram”). However, with time, the anti-defection law is being seen more and more as a way of stifling dissent within a party and undermining the representation of the people by the legislators. This research paper deals with the tension between these two aspects.
Headline of the Article
The Twilight of Legislative Freedom: A Legal Critique of the Anti-Defection Law and the Erosion of Intra-Party Democracy
To the Point
The main political and legal conflict with regard to Tenth Schedule is the contradiction in itself in the very effort to shield the people’s mandate from floor-crossing that ends up shackling lawmakers by making them into mere voting machines for the party leaders.
When political parties threaten their members with disqualification to make them go against their conscience and the people’s interest, the entire system of democracy is affected. Moreover, with the loophole of split or merger, where two-thirds of a political party defects without being disqualified, defections have become a whole group affair.
Use of Legal Jargon
In order to understand the constitutional jurisprudence regarding political defections, some important legal terms and concepts are:
Whip: It is an instruction given by a political party to its members on how they ought to vote within the house. Failure to follow a whip results in disqualification proceedings.
Judicial Review: This is the power of the judicial branch to review actions of the legislative, executive, and administrative branches of government and to ascertain whether the actions meet the requirements of the constitution.
Natural Justice (Audi Alteram Partem): This is the concept that nobody should be condemned unheard. It is an important principle of natural justice in the context of making administrative or quasi-judicial decisions.
De Jure vs. De Facto Control: The difference between legal and factual control, that is legal control of party leadership and de facto control over the majority of members elected in the house.
Quasi-Judicial Power: A body, or person like the Speaker of the House, who enjoys powers of a court of law and therefore expected to conduct themselves in a manner similar to courts of law.
The Proof
The failure of the current system against defections can be seen from the way political crisis unfolds. Rather than curbing the problems of instability, the law has only served to enhance the process of defection.
When the group is bent on switching sides, it does not defect as individuals. Rather, they stay at a resort in a neutral state until they achieve the two-third majority needed for them to be “legitimate.”
Scenario
Individual Defection (Pre – 1985)
Mass Faction Split (Current Tenth Schedule)
Legal Status
Immediate Disqualification
Protected under Paragraph 4 (Merger rule) if > 2/3rd agree
Financial/ Political Scale
Small-scale, localized
High-stakes, corporate-style resort politics
Role of the Speaker
Straight-forward factual verification
Highly politicized, often delayed or rushed rulings
Impact on Government
Minor instability, easily patched
Wholesale collapse of state government
Evidence gathered from the recent state assembly crises suggests that the office of the Speaker, which acts as an independent quasi-judicial body, has often delayed the processing of disqualification petition cases for many months where it suits the ruling political party but hastened them where it wants to target the opposition.
Case Laws
1. Kihoto Hollohan v. Zachillhu, AIR 1992 SC 412
Context: A constitutional challenge against the Tenth Schedule as being unconstitutional due to it being violative of the legislator’s right to freedom of speech and the power of judicial review being stripped from the courts.
Legal Ruling: The Supreme Court upheld the constitutional validity of the Anti-Defection Law, declaring that preventing political defections was a legitimate state interest. However, the court declared Paragraph 7 as being unconstitutional since it attempted to wholly strip the process of judicial review. The court further ruled that the decision of the Speaker is judicially reviewable on grounds of infirmity of malafides, perversity and natural justice.
Importance: The judgment established that the word of the Speaker is not law and paved way for the judiciary to intervene where the Speaker abuses his/her powers for partisan interests.
2. Keisham Meghachandra Singh v. The Hon’ble Speaker Manipur Legislative Assembly, (2020)
Context: A case relating to the long-standing inaction of the Speaker of Manipur on matters of disqualification petition raisedagainst a member switching party right after the elections.
Legal Decision: The Supreme Court ruled that the Speaker is required to dispose of disqualification petitions in a reasonable time, and the period of three months is considered the maximum limit unless there exist any exceptional circumstances. More importantly, the Court advised Parliament to amend the Constitution to deprive the Speaker of this authority and confer it to an external body like a retired Judge.
Importance: The decision aims at the heart of the flaw in the Tenth Schedule – the inherent bias of the office of Speaker in politically charged conflicts.
Conclusion
The Tenth Schedule has been established with noble intentions, but it has now become a means of curtailing democratic deliberation and facilitating political logrolling. It has adversely affected the representational aspect of governance by making the legislature loyal to the party than the people it represents.
In order to overcome this problem, there is a need to restrict the application of this law. The whip issued by any political party should only apply to those issues which affect the continuance of the government, such as No Confidence Motions, Confidence Motions, and Money Bills. In all other cases, legislators should have the freedom to vote on issues based on their conscience and the needs of their constituencies. Secondly, there is a need for transferring the power of disqualification from the Speaker to an independent judicial authority.
FAQ
Q1: Is it true that if a legislator votes against his/her party, he/she loses his/her seat automatically?
It is true only when such a decision is taken by a legislature regarding an issue for which there is a whip of the party and the legislator has voted against it or abstained from voting without the permission of the party within 15 days.
Q2: Explain the “Two-third rule” under the Anti-defection law?
According to the existing law, if two-third or more members of the elected party decide to merge with or join any other party, then the members will not be disqualified.
Q3: Explain why the position of the Speaker in defection cases is so controversial?
Because the Speaker continues to be a member of the ruling party or coalition.
Q4: Is it possible for a court to intervene in the decision-making process of the Speaker on the question of defection?
In most cases, courts do not interfere during the interlocutory stage. But if the Speaker has made an order or there is deliberate delaying of action to influence voting in the House, then the courts may become involved.
