The LexGaze Weekly - DECIPHER

Simplifying the anti-defection laws in India

Vishakha Sharma

Issue 6 | July 25, 2020

The anti-defection law which falls under the tenth schedule of the Constitution, have once again come into limelight due to the recent political controversy in Rajasthan after the Speaker issued show-cause notice to Sachin Pilot and other 18 MLAs. The Speaker's show-cause notice is based on the ground that refusal to attend party meetings as per the directives of the party whip amounts to anti-party activities, attracting defection under Tenth Schedule. Therefore,once again, proving the fact that the anti-defection law in India is both laudable as well as complicated. Basically, anti-defection laws have a significant impact on lives of citizens as these laws are a way to implement parliamentary decorum and discipline.

● Background:

In India, defection is as old as 1967. Between 1967 and 1972, approximately 50% legislators switched sides atleast once. This practice of switching sides for gaining office came to be termed as “horse-trading”. Thus, an attempt was made in December, 1967 when the Lok Sabha appointed a high level committee to look into the problem and to make recommendations. The committee was constituted under the chairmanship of the then Union Home Minister Shri Y.B. Chavan .After this, an attempt was again made by (32nd Amendment) Bill, 1973. But it was only by the Constitution (52nd Amendment) Act, 1985 that the laws on defection became concrete. This amendment act amended Art 101, 102, 190 and 191 of the Constitution providing further grounds for disqualification from membership of Parliament and the State Legislatures.

● The Provisions of the Xth Schedule:

i) A member of a house is disqualified from membership if he voluntarily gives up or if he votes or abstains from voting contrary to the directions given by the party. (Paragraph 2)

ii) This disqualification shall not apply in case of a split i.e., ⅓rd or more of the members of a party defect. It shall also not apply in the event of a merger i.e., ⅔rd of the members or more merge with any other party. (Paragraph 3 and 4.) [These provisions have been subjects of many debates]

iii) The speaker, Deputy Speaker and Deputy Chairman are allowed to give up their membership after being elected to the office. (Paragraph 5)

iv) The speaker or Chairman is the person to decide questions of disqualification. (Paragraph 6).

v) The jurisdiction of the courts regarding the disqualification of any member has been barred.(Paragraph 7) (However, the Supreme Court in 1993 [Kihoto Hollohan v. Zachillhu,AIR 1993 SC 412.] has struck down this part of the schedule as unconstitutional.)

● Important Authorities based on defection law:

1. Ravi.S.Naik v. Union of India, 1994 (Supp.) 2 SCC 641.

Held: "The words voluntarily given up his membership" are not synonymous with "resignation” and have a wider connotation.”

2. G. Viswanathan & Ors. v. Hon'ble Speaker Tamil Nadu Legislative Assembly & Ors. 1996 SCC (2) 353.

Held: The act of voluntarily giving up the membership of the political party may either be express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member."

3. Mahachandra Prasad Singh v. Bihar Legislative Council, (2004) 8 SCC 747.

Held: “Contesting Parliamentary election on a ticket of party which is different from the party under which he became a member of state legislative assembly amounted to giving up membership.The Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip. The decision of the speaker must be in consonance with the basic conduct or actions taken by the member, which may amount to voluntarily giving up his membership.”

4. Shivraj Singh Chouhan & Ors. v. Speaker Madhya Pradesh Legislative Assembly & Ors. (Writ Petition (C) No. 439 of 2020)

Held: “Governor can direct floor test even while house is in session.” In a 68-page judgment released on Monday, the Supreme Court affirmed its order passed on May 19 to hold floor test in the MP assembly for proving the majority of the previous government led by Kamal Nath.”

5. Keisham Meghachandra Singh v The Hon'ble Speaker Manipur Legislative Assembly and others, Civil Appeal No. 547 of 2020).

Held: “Speaker should decide on disqualification within 3 months; impartial tribunal needed under 10th schedule.”

It concludes that the problem with Schedule X is the lack of uniformity of Speakers in different States leading to various political manipulations, along with the defect in the provision of split and mergers raising a question “how can no. of defectors determine defection as legal?” They may do so in lure of office as well. Thus, the author suggests that instead of scrapping the whole Schedule X, these few provisions can be amended suitably so that the Speaker cannot manipulate the situation in favor of the party he supports.