Ashok Bhan
The Tenth Schedule was inserted in the Constitution by the Constitution (Fifty-second Amendment) Act, 1985, sets the provisions for the disqualification of elected members on the grounds of defection to another political party. Owing to the implementation of the Tenth Schedule, there has been a substantive decrease in the defection cases. The provisions of the Tenth Schedule have stood the test of time and several judicial scrutinies. The Statement of Objects and Reasons of the Bill, which added the Anti-Defection Law to the Constitution, mentioned that the evil of political defections was a matter of national concern and needs to be curbed.
The Tenth Schedule of the Constitution, also known as the anti-defection law, was added to prevent political defections. The rationale to curb such defections was that they undermine the foundations and principles of Indian democracy. The law disqualifies legislators for violating the will of their political party. In the 37 years the law has been in place, while individual defections may have reduced, en masse defections continue. The presence of the Anti-Defection Law has also undermined democracy by inhibiting legislators from exercising their choice and ability to function independently, and restricted decision making in legislatures to a few who control political parties.
The main motivator for Parliament to enact anti defections Law was to address the ‘evil of political defections’. However, since the law was first enacted in 1985, it had not put an end to defections or helped bring the stability in governments it sought to. In its 170th report, the Law Commission of India (1999) had observed that the country’s experience with the Tenth Schedule had not been a happy one. The provision exempting splits in political parties from disqualification has been abused the most. Since then, the provision that permitted splits by one-third of the membership has been repealed. However, a merger with another party is permitted if two-thirds of the membership opts for it.
Disqualification for defection
A legislator belonging to a political party will be disqualified if he: (i) voluntarily gives up his party membership, or (ii) votes/abstains to vote in the House contrary to the direction issued by his political party. A member is not disqualified if he has taken prior permission of his party, or if the voting or abstention is condoned by the party within 15 days. Independent members shall be disqualified if they join a political party after getting elected to the House. Nominated members will be disqualified if they join any political party six months after getting nominated. The National Commission to Review the Working of the Constitution (2002) had also noted that since candidates get elected on the basis of the party that gave them the ticket, defecting flouts the very mandate on the basis of which a member was elected.
Here is how the anti-defection law – the Tenth Schedule of the Constitution, inserted by The Constitution (52nd Amendment) Act, 1985, when Rajiv Gandhi’s government was in power – came to be, and how it evolved over the three decades that followed.
1967 elections
The seeds of the anti-defection law were sown after the general elections in 1967. The results of those elections were a mixed bag for the Congress. It formed the government at the Centre, but its strength in Lok Sabha fell from 361 to 283. During the year it lost control of seven state governments as MLAs shifted their political allegiance.
In this backdrop, P Venkatasubbaiah, a Congress MP in Lok Sabha who served in the Cabinets of both Indira and Rajiv Gandhi, proposed the setting up of a high-level committee to make recommendations to tackle the “problem of legislators changing their allegiance from one party to another”. The proposal saw a spirited debate in Lok Sabha. Opposition members suggested renaming the proposal to “save Congress”, while the ruling party accused the opposition of inducing MLAs to defect. The Bill was debated in Lok Sabha on January 30, the death anniversary of Mahatma Gandhi, and was passed by Rajya Sabha the following day. Prime Minister referred in Parliament to the Mahatma’s seven social sins, the first one being politics without principles.
Immediate challenges
No sooner was the law put in place than political parties started to stress-test its boundaries. The issue of what constitutes a spilt in a political party rocked both the V P Singh and the Chandra Shekhar governments. The role of the Presiding Officers also became increasingly politicized. Lok Sabha Speaker said in 1992: “The Speaker is not expected to dabble in keeping the political parties weak or strong or discipline the Parliamentarians for their party purposes.”
Members are exempted from such disqualification when at least two- thirds of the original political party merges with another political party. Further: (i) the members must have become members of the party they have merged with/into, or (ii) they should have not accepted the merger and choose to function as a separate group. The decision to disqualify a member from the House rests with the Chairman/Speaker of the House.
Reduces the accountability of the Government and legislators
The key problem with a law that penalises legislators for acting independently is that it goes against the idea of a parliamentary democracy. In a parliamentary democracy, the government is accountable to citizens through a two-step process. Elected representatives (MPs and MLAs) hold the government accountable for its actions. In turn, they are accountable to citizens, as they need to renew their mandate every election. The anti-defection law breaks both links in this chain.
Elected representatives are expected to take decisions on proposed legislation and policies by exercising their independent judgment, and factoring in the interests of citizens. They are also expected to hold the government accountable by asking questions and raising matters of importance. In addition, they are to represent their constituents. However, the disqualification provisions of the Anti-Defection Law binds legislators to the official position taken by their party on any issue. Any diversion from that position can make them liable to be disqualified from their membership of the House. This adversely impacts their ability to exercise their independent judgement when evaluating proposals that are brought before the House.
This point was elucidated by Dr. B.R. Ambedkar in the Constituent Assembly. He explained that the key difference between the presidential and parliamentary systems was the balance sought between the stability of government and its accountability to the people. A presidential system provides greater stability as the president can be removed only through impeachment for a serious crime. This feature automatically reduces the accountability until the next election. In contrast, in the parliamentary system, the government is accountable to parliament on a daily basis through questions, debates and motions. Parliament can even remove the government through a no-confidence motion. The framers of the Indian Constitution chose the parliamentary system as they gave greater importance to an accountable government than its stability. The contrarian view however is; the anti-defection law negates this purpose as the freedom of legislators to question the government and vote on various motions is constrained by the party whip. Indeed, if a party has a majority, it is almost certain to win every motion.
There could be instances when a legislator may have an opinion different from the one taken by his or her party. For instance, in the United Kingdom, MPs in the House of Commons thrice rejected the withdrawal plan which was negotiated by the government for leaving the European Union. Similarly, in India, when political parties took official position on Bills such as the farm laws, there could be MPs who may disagree with the party line. There could even be instances when a Bill may go against the interests of an MP’s constituency but his party has decided to support it. Given the provisions of the Anti-Defection Law in India, legislators cannot vote their conscience or for their constituency interests if such vote is contrary to the stand taken by their party. In other words, MPs can neither exercise their judgement nor go according to the wishes of their electorate. The wishes of the party trump all other considerations.
There have been proposals to limit the Anti-Defection Law to votes which test the stability of the government such as no-confidence motions and money bills. Note that the Anti-Defection Law currently applies to every vote, and even in Rajya Sabha and Legislative Councils of states, where the government’s stability is not at stake. The Dinesh Goswami Committee on Electoral Reforms (1990) had recommended that disqualification on grounds of defection should be limited to: (i) an elected member voluntarily giving up membership of his political party, and (ii) voting contrary to the party whip only in respect of vote of confidence/no-confidence, money bill, or motion of vote of thanks to the President’s address.6 However, this formulation too misses the core point of the parliamentary system – the onus is on the government to retain the support of a majority of MPs, including those from the same party. Only then can the government be held accountable for its actions.
The requirement of abiding by the party direction also reduces the accountability of legislators to their constituency. This accountability is enforced through the election system, as the MPs will have to justify their actions when they seek re-election. But the Anti-Defection Law gives them an easy explanation for their voting behaviour: they had no choice but to vote according to the party’s direction.
Voluntarily giving up party membership
Under the Tenth Schedule, voluntarily giving up membership of a political party is also one of the grounds to be disqualified as a defector. However, what constitutes the voluntary giving up of party membership is not defined under the Schedule. The Supreme Court has held that voluntarily giving up membership is not synonymous with only formally resigning from the party, and has a much wider connotation.7 A person may voluntarily give up his membership even without resigning from the party. The conduct of a member could be seen to draw an inference of whether he has voluntarily given up the membership of the party, even without tendering a resignation. This possibly implies that an action of legislator both inside and outside the House can be looked into to check if it qualifies as voluntarily giving up party membership. Hence, a legislator could never speak against the party’s mandate, or agree with an opposing party’s view.
The intervention of the higher judiciary was sought to decide questions such as what kinds of conduct outside the legislature would fall in the category of defection, and what was the extent of the Speaker’s power in deciding defections. The Supreme Court, while upholding the supremacy of the Speaker in defection proceedings, also held that the Speaker’s decisions were subject to judicial review.
The 2003 Amendment
The last step in the legislative journey of the anti-defection law came in 2003. A Constitution Amendment Bill was introduced in Parliament by the Vajpayee Government and a committee was formed to address some of the issues with the law. A committee headed by Pranab Mukherjee examined the Bill. The committee observed: “The provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further it is also observed that the lure of office of profit plays dominant part in the political horse-trading resulting in spate of defections and counter defections.”
Supreme Court held that if a member belonging to a political party is expelled from the party after being elected, he shall continue to belong to that party as an unattached member. If such a member joins another political party after being expelled from his original party, he will be deemed to have voluntarily given up his membership of the original party. The Tenth Schedule exempts elected members from disqualification in cases of mergers between political parties. A merger requires at least two-thirds legislators of the original political party to agree to it.
The Bombay High Court has held that the Tenth Schedule provides for two distinct possibilities involving the merger of political parties. The first possibility involves the merger of the original political party with another party. Such a merger happens outside the House. The second possibility involves a deemed merger of the parties when at least two-thirds members of the legislature party agree to such a merger. The Court ruled that while both these possibilities are distinct, legislators have the option to agree or not to agree with the merger.
The Law Commission (2015) noted that legal challenges against decisions taken by Speakers on disqualification erode the confidence placed in the office of the Speaker. The Commission recommended that the power to decide on questions of disqualification on the ground of defection should be vested with the President or the Governor, who should act on the advice of the Election Commission of India (ECI). However, this solution also is based on the assumption that the ECI acts in an impartial manner.
Another lacuna associated with the decision-making power of the presiding officer under the Tenth Schedule is the absence of a timeline to take decisions. The Anti-Defection Law is silent on the maximum time within which a decision must be taken on questions of disqualification. The Supreme Court (2020) has observed that while acting as a tribunal under the Tenth Schedule, the speaker is bound to decide disqualification petitions within a reasonable period. While what time period is reasonable will depend on the facts of each case, the Court held that disqualification petitions must be decided within three months from when they are filed.
The (ab)use of the law? The removal of the split provision prompted political parties to engineer wholesale defections (to merge) instead of smaller ‘retail’ ones. Legislators started resigning from the membership of the House in order to escape disqualification from ministerial berths. The ceiling on the size of the Council of Ministers meant an increase in the number of positions of parliamentary secretaries in states. The Speakers started taking an active interest in political matters, helping build and break governments.
The anti-defection law does not specify a timeframe for Speakers to decide on defection proceedings. When the politics demanded, Speakers were either quick to pass judgment on defection proceedings or delayed acting on them for years on end. The anti -defection law has not been able to stop political defections. The evil of political defections continues to be a matter of national concern and needs to be curbed in the interests of purity of electoral process and democracy.
(The author is Senior Advocate, Supreme Court of India)
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