Are Anti Defection Provisions Constitutionally Justified

According to Burton’s Legal Thesaurus defection maybe defined as abandonment of loyalty,

duty or principle or of one’s leader or cause. [1] In parliamentary political life, the term has come to
connote change of any party affiliation or allegiance by a member of a legislature. The traditional term
for the latter has however been ‘floor crossing’ [2] which had its origins in the British House of
Commons where a legislator was supposed to have changed his party allegiance when he crossed the
floor and moved from the government to the Opposition side. [3]

Defection causes government instability, for a government maybe defeated if members of the
ruling party go to the Opposition, thus making it a majority party. [4] Defection is undemocratic as it
nullifies the verdict of the voters in an election. Thus the party which has the popular vote of the people
may fail to form the Government because the Opposition has induced the members to leave it. [5]

A significant development took place when the Constitution was amended to include the Tenth
Schedule. The Tenth Schedule was purported to curb the malaise of political defections in national life.
A Constitution Bill was introduced in the Lok Sabha on 24th Jan 1985 which stated

“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.” [6]

The Constitution Fifty Second Amendment Act changes four Articles of the Constitution, viz
101(3)(a), 102(2), 190(3)(a) and 191(2), and added the Tenth Schedule. This amendment is often
referred to as the anti-defection law. This legislation contains eight paragraphs-the first one deals with
definitions, the second states the provisions which disqualifies members from the membership of
Parliament or State Legislatures, [7] the fourth states that disqualification is not going to apply in cases
of merger, the fifth sets out certain exemptions, the sixth and seventh states the person who would be
deciding the disputes regarding defections and barring jurisdiction of the Courts in respect of questions
on disqualification and the last paragraph contains provisions for the Speaker and the Chairman to make
rules in order to give effect to the provisions contained in the schedule. [8]

There are several issues in relation to the working of this law which needs to be discussed. Does
the law while preventing defection also suppress a member of parliament’s right to the freedom of
expressing his own opinion in Parliament? Does it restrict their opinion which is against the party
position? Is the decision of the Speaker regarding disqualification of a Member of Parliament final?
Does judicial review extend to the rules framed under the tenth Schedule? These are the questions the
researcher seeks to answer in this paper.

WHETHER DISSENT EQUALS DEFECTION?

Paragraph 2(1)(a) and (b) provides the disqualifications incurred by a member. It gives effect to
this principle and sentiment by imposing a disqualification on a Member who votes or abstains from
voting contrary to “any directions” issued by the political party. This provision also recognises two
exceptions; one, when the member obtains from the political party prior permission to vote or abstain
from voting and the other when the Member has voted but his action has been condoned by the political
party.

Under Paragraph 2(1)(b) dissent becomes defection. It deals with a member who expresses his
dissent from the stand of the political party to which he belongs by voting or abstaining from voting in
the House contrary to the direction issued by the political party. In Kihoto Hollohan v. Zachillhu &
Ors [9] ,it was contended that the provisions of the Tenth Schedule constitute a ‘flagrant
violation’ [10] of those fundamental principles and values which are basic to the sustenance of the
Parliamentary democracy. It negates the freedom of speech, right to dissent and freedom of conscience
of our parliamentarians. They also contended that the Tenth Schedule impinges upon the rights or
immunities under Article 105(2). [11] The court said “there are certain side effects and fall out which
might affect and hurt even honest dissenters and conscientious objectors, but these are the usual plus and
minus of all areas of experimental legislation. In these areas, the distinction between what is
constitutionally permissible and what is outside it is marked by a ‘hazy gray line’ and it is the Court’s
duty to identify, ‘darken and deepen’ the demarcating line of constitutionality…” [12]

By a 3:2 majority, the Court held that the provisions of the Tenth Schedule were not violative of
the freedom of speech, vote and conscience of the members. Such provisions in the view of the Court
are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and
unethical political defections. It said that the freedom of speech of a Member is not an absolute freedom.
Secondly, the parliamentary privileges as guaranteed under Article 105 [13] are not violated as the
provisions in the Tenth Schedule do not result in any proceeding in any Court thus safeguarding the
guaranteed immunities. The researcher does not agree with the position taken by the Court.

In India unlike other democracies in the world, the vote of each legislator in the House is not
important. For example, in Israel when Prime Minister Ariel Sharon wanted a legislative approval to
pull Israeli troops out of the Gaza strip he was supported by members from the Opposition Party while a
few members of his own party dissented. Even in the UK when Prime Minister Tony Blair wanted Great
Britain to join the war in Iraq, more than 150 members of his party voted against him. He had to take the
support of members of the Conservative party to put the legislation through. [14] Such difference of
opinion between members of the same party is allowed in other democracies. Members of the Labour
Party in the UK did not have to leave it, just because they did not agree with the party line. They just
made their preference known and continued to stay on in the party. [15] In India the members of a
particular party are bound to follow the direction of their party whips or face disqualification. The anti
defection law stifles debates on matters in the Parliament as the legislators are not allowed to dissent,
without being disqualified by the House. [16]

The term “party whip” dates back to fox hunting and was used to refer to minders who kept the
dogs, used for hunting, on the pursuit of the foxes. The party whips’s role is to inform members of the
House about the matters which are going to be tabled in the house and to request their presence during
the voting of important matters. The whips also find out the views of the members of the party, on issues
which are going to be tabled in Parliament and report it back to the party High Command. [17] But this
role of the party whip, from trying to understand the individual views of its party members has been
completely reversed to dictating the party leadership’s view upon them.
 Thus a dissenting member has no option but to leave his party and join another party which
shares his ideals. This has two consequences. One, the dissenting members move away from the party,
either forming another party or joining a different one. Second the parties try to sway independents to
their side by promising them ministerial posts or by offering them money. [18] Parliament must
therefore amend the tenth Schedule to limit the disqualification of legislatures only when they defy the
party directive, to a vote on motion of no confidence or no confidence in the Government or where the
motion deals with a matter, which was integral to the manifesto of the party and on the basis of which it
had asked people to vote for it. [19] It should thus allow legislators to disagree from the opinion of the
party whip on matters of legislative business.

IS THE SPEAKER’S DECISION FINAL?

Paragraph 6(1) [20] was challenged in Kihoto Hollohon [21] as it seeked to make the decision of
the speaker final and immune from judicial review. According to Prof Wade the judicial control of
legality of a decision taken under a statute which grants such ‘finality’ is ‘unimpaired’. [22] The Court
cited various authorities against the acceptability of the argument that the word “final” in Paragraph 6(1)
had in excluding the jurisdiction of the Courts under Articles 136, 226,227. It cited Brundaban Nayak v.
Election Commission of India [23] where the Court, on an appeal by special leave under Article 136 of
The Constitution against the decision of the High Court, examined the “finality” of the decision of the
Governor in respect to the disqualification of a member of the State Legislature after his election. [24] It
also cited Union of India v. Jyoti Prakash Mitter [25] , it examined the finality attached to the order of
the President with regard to the determination of the age of a judge of the High Court under Article
217(3) of the Constitution. [26] It was also contended that the proceedings under Paragraph 6(1) of the
tenth Schedule were “proceedings in Parliament” or “Proceeding in the Legislature of a State” and
therefore could not be challenged by the Courts under Article 122 or 212. But the Court said that since
the proceedings under paragraph 6(1) occurred before the Speaker and not before the House, nor did it
require the approval of the House, the decision of the Speaker was not immune from judicial
scrutiny. [27] The Court claimed that a dispute regarding the disqualification of a Member of Parliament
was not to be treated as a matter of privilege but one which is not legislative but judicial in nature. [28]

The court answered in the affirmative regarding, whether the Speaker, acting under paragraph
6(1) constituted a Tribunal or not. According to the Bench, the Speaker passed the “well known and
accepted tests” [29] of what constituted a Tribunal. The Court concluded that the finality clause in
paragraph 6(1) does not completely exclude the jurisdiction of the Courts under Article 136,226 and 227
of the Constitution, but it limits their jurisdiction. This lets the Courts to examine whether the action of
the authority is beyond the powers granted to him.

It was contended by the respondents in Mayawati v. that the decision of the Speaker is immune
from judicial interference because of two restrictions. First, the Constitution Bench of the Kihoto
Hollohan limited the scope of judicial scrutiny with regard to the decision of the Speaker. Secondly, they
mentioned the “positional height” of the Speaker upon whom power is vested to determine disputes
under the 10th Schedule. C.J Punchhi did not agree with this. According to him no constitutional
functionary can be above the law and have such immunity. [30]
 Thus as mentioned in Kihoto Hollohan power of judicial review as regards the power of the
Speaker was confined to jurisdictional errors based on violation of constitutional mandate, mala fides,
non compliance of rules of natural justice and perversity. [31]

WHETHER JUDICIAL REVIEW BY COURTS EXTENDS TO RULES FRAMED UNDER

TENTH SCHEDULE?

In Ravi S. Naik v. Union of India [32] , the Bench said that the rules made under the tenth
Schedule were procedural in nature. The Disqualification rules according to were framed to regulate the
procedure that is to be followed by the Speaker for exercising the power conferred on him by Paragraph
6(1) of the Tenth Schedule. Any violation of these rules would amount to an irregularity in procedure
which is immune from judicial scrutiny in view of Paragraph 6(2) as declared by the Bench in Kihoto
Hollohan. The Bench in Ravi Naik did not agree with the view that the violation of the Disqualification
Rules amounts to violation of constitutional mandates. They were of the view that elevating the Rules to
the status of the provisions of the Constitution is impermissible. The Disqualification Rules cannot be
equal to the provisions of the constitution as they have been framed by the Speaker in exercise of his
powers under paragraph 8 of the Constitution. The Disqualification Rules cannot be thought to be
constitutional mandates. Therefore violation of the Disqualification Rules is not a reason for judicial
review of the order of the Speaker in view of the finality clause contained in paragraph 6(1) of the Tenth
Schedule as was said in Kihoto Hollohan.