By Vivek K Agnihotri
M Venkaiah Nadu, vice president of India, has said that there is a need to amend the anti-defection legislation in order to plug certain loopholes. In particular, he rued that the law, as it exists, does not provide for any time frame for presiding officers to dispose of cases relating to anti-defection. He was speaking on “Media’s Role in New India” at the Press Club in Bengaluru on April 24, 2022.
He said: “Some cases are taking six months and some even three years. There are cases that are disposed of after the term is over. I personally believe that these cases can be disposed of in three months.” He was also critical of the provision which keeps merger of political parties outside the purview of the anti-defection legislation. He was of the opinion that it was the dharma of politicians to resign when they switch parties.
In common parlance, the Tenth Schedule of the Constitution is known as the anti-defection law. It was added to the Constitution in 1985 to combat the evil of political defections on account of offers of office or other inducements. The Tenth Schedule lays down the process by which legislators may be disqualified on grounds of defection by the presiding officer of a legislature based on a petition by any other member of the House.
The law applies to both Parliament and state legislative assemblies. Consequent to this provision, Articles 75 (1B), 164 (1B) and 361B were also inserted in the Constitution, which prescribe that if a legislator (MP or MLA/MLC) is disqualified for being a member of the House under paragraph 2 of the Tenth Schedule, he shall also be disqualified to be appointed as a minister for the duration of the period commencing from the date of his disqualification till the date on which his term would expire or, where he contests any election, till the date on which he is declared elected, whichever is earlier. He is also disqualified for appointment on remunerative political post (Article 361B).
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The Tenth Schedule lists two grounds on which a legislator can be disqualified for defection. One, if he voluntarily gives up membership of his political party and two, if he votes or abstains from voting in the House contrary to any direction issued by his party.
Further, the Supreme Court in several judgments, particularly in Zachillu Khusantho vs State of Nagaland (1993), had held that even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party. Thus, the act of voluntarily giving up the membership of a political party may be either express or implied. The Tenth Schedule, however, provides an exception to this too. As of now, if two-thirds of the members of a political party decide to merge with another party, the disqualification on the ground of defection is inoperative.
Moreover, Paragraph 7 of the Tenth Schedule originally barred the jurisdiction of courts in respect of any matter connected with the disqualification of a member of a House. However, the Supreme Court in Kihoto Hollohan vs Zachilhu and Ors (1992) struck down this provision as unconstitutional on the ground that it affected the power of judicial review of the Supreme Court and High Courts under Articles 136, 226 and 227. The Court held that the order of the Speaker (Lok Sabha/state legislative assemblies) or the Chairman (Rajya Sabha/state legislative councils), as the case may be, under the Tenth Schedule, are subject to judicial review on grounds of mala fide, perversity, violation of constitutional mandate and violation of principle of natural justice.
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The need to take a fresh look at the anti-defection law was earlier highlighted by Naidu in the 16-point programme adumbrated by him while delivering the first Arun Jaitley Memorial Lecture, organised by Delhi University on October 29, 2019, as follows: “To review the functioning of the Anti-Defection Law to address grey areas like incentivising members to resort to activities that invite expulsion from the parties besides stipulating specific time frame for deciding on defection matters by the Presiding Officers of Legislatures.” (Point 11)
As regards delays in the competent authority taking a decision on the petitions filed for disqualification, the Supreme Court has, from time to time, commented on the unnecessary delay in deciding such petitions by the presiding officers of state legislatures. Naidu, in his capacity as Chairman, Rajya Sabha, while deciding the case of disqualification for defection of Shri Sharad Yadav and Another in 2017, had observed that all such petitions should be decided by the presiding officers within two to three months.
Here it may be noted that the presiding officers of legislative bodies find it difficult to judge disqualification matters in a purely non-partisan manner because they are often part of a political party. It would, therefore, be for consideration whether the power to disqualify the legislators should be vested with the president, as in the case of disqualification for holding an office of profit. Alternatively, the Speaker may be mandated to consult the Election Commission before taking a decision and act according to the advice received.
The other concern expressed by Venkaiah Naidu relates to members of legislatures avoiding disqualification by switching parties en masse, as the law states that if not less than two-thirds of members of a political party form another party or merge with another party, they will not incur disqualification.
It stands to reason that the voters, in most cases, vote for a candidate on the basis of his professed political credentials—that is his affiliation to a political party—and give him preference taking into account the agenda for action spelt out in the manifesto, written or otherwise expressed. If after getting elected, the candidate changes his party, he is, in effect, not the candidate the electors voted for. In the fitness of things, therefore, he should go back to the people to seek a fresh mandate. As a matter of fact, it could be one of the grounds on which the electors should be empowered to recall the candidate, as and when the “Right to Recall” legislation sees the light of day.
As far as voting in the House is concerned, a contrarian view is that the anti-defection law is per se against the concept of representative democracy in so far as it deprives the legislators of their freedom to vote in the House on the basis of their considered opinion and best judgment, by making them accountable primarily to their political party. In particular, legislators belonging to the ruling party or coalition are unable to hold the government accountable. The fundamental problem with the law is that it attempts to find a legal solution to what is essentially a political problem.
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In Kihoto Hollohan (supra), the Supreme Court seemed to acknowledge that the phrase “any direction” was plainly too wide. Perhaps it ought to be narrowly defined and limited to cases involving motion of confidence or no-confidence. The representatives of the people should be allowed to act in the interest of their constituents and not merely as mouthpieces of their respective political parties. Even during the early days of Indian independence, in the Constituent Assembly, whips used to be issued to Congress party members, but they did not silence everyone. Shibban Lal Saksena frequently spoke in defiance of it and was, apparently never punished for the delinquency.
Again, the proposed change disqualifying all defectors, irrespective of their numerical strength, may make a prospective defector wait till the next election. Then he will make the move and resign his membership of the legislature before joining the preferred party or floating his own party, as happened in several cases during the run up to elections to several state legislative assemblies held during 2022. Fair enough, should one say?
—The writer is former Secretary-General, Rajya Sabha