(Saksham Chaturvedi is a second year student at National Law University, Odisha)
Featured Illustration – ‘Moses Speaks to Pharaoh” by James Tissot
The last decade of electoral politics in India has seen a myriad of political defections. The turf of politics has considerably shifted from embodying a persuasive ideology to the trading of elected legislators. This is particularly evident in contests which do not produce a landslide electoral verdict. Apart from certain minor inconveniences, and some deterrent effect, the operation of anti-defection laws does little to discourage politicians from jumping ship. The operation of current anti-defection laws has largely failed in its primary objective of disincentivizing dereliction of parties by elected lawmakers. Hence, this article is an attempt to examine why the current rules of anti-defection aren’t adequate to dissuade political apostasy.
Role of the Presiding Officer
To curb the vice of defections, vide the Constitution (52nd Amendment) Act 1985, the Tenth Schedule was added to the Constitution of India. The rules prescribed under the Tenth Schedule govern the modality of disqualification on the ground of defection by elected members. As per Paragraph 6(1) of the Schedule, the adjudicative powers to decide on question of disqualifications on ground of defections have been vested with the Presiding Officer. As the case may be, inter alia, the Presiding Officer is the Speaker of the House. This adjudicatory authority of the Speaker has been a contentious issue for a long time. The issue was placed before the Supreme Court (SC) in the case of Kihoto Hollohan v. Zachillhu. The contention of the petitioners was that if the Speaker is vested with the adjudicative jurisdiction of electoral disputes, the concept of an independent and unbiased machinery for dispute resolution, a necessary concomitant attribute of a democracy is vitiated.
The majority bench of the SC rejected this argument and deemed, such a contention ignores the position and prominence of the office of the Speaker. The ratio of judgment assesses that by virtue of its status, the Speaker is an impartial authority. The majority opined that, “Once a person is elected Speaker, he is expected to be above parties, above politics”. However, the reasoning employed by the majority bench to reach this conclusion is misconceived and should be humbly re-visited. This is because it is manifestly arbitrary to assume that the Speaker is impartial. It cannot be reasonably concluded that the office of Speaker is free from bias and discharges all functions in the interest of veracity. While it may be reasonable to expect that the Speaker is above party politics, it is absurd to infer that solely by virtue of the office he/she holds, the Speaker shall reach all decisions in an ideal manner. The minority bench in the instant case arrived at a more prudent conclusion. Demonstrating the stance of the minority bench, Justice J.S. Verma illustrated that the adjudication of disputes pertaining to disqualification must be vested in an independent body rather than the Speaker. The minority bench was of the determination that such a practice falls foul of the basic structure of the Constitution. Justice Verma noted that:
“The … Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.”
It is a norm that the Speaker is of the majority/ruling party. In the event, where a member of the ruling party decides to switch to the opposition party, against the interest of the former, entrusting the Speaker to be objective is highly implausible. The role of the Speaker in this capacity must be curtailed to fairly settle electoral disputes. Later, the SC itself in Jagjit Singh v. State of Haryana, acknowledged that a Speaker is a political creature, and in many instances may not be best suited to deal with such disputes. However, in Rajendra Singh Rana vs Swami Prasad Maurya, as well as in Jagjit Singh, the SC repeatedly refused to alter the scheme of power being vested in the Speaker.
Hence, the adjudicatory power of resolving electoral disputes should therefore be vested in the Election Commission (EC), preferably with a body comprising members of the respective State Election Commission (SEC). This is because at its core, the EC and SEC are free, fair, and non-partisan bodies, which possess a greater degree of independence than the office of the Presiding Officer. A similar recommendation in this regard was also made by the Committee on Electoral Reform (Dinesh Goswami Committee), and several other committees set up to suggest electoral reforms, but the same has not be adopted.
Term of Disqualification
According to Paragraph 2(1) of the Schedule, a member of a House shall be disqualified when he has voluntarily given up membership of his original party or votes contrary to the direction issued by his party. As per Paragraph (4) the same shall not be deemed a defection in case of a split or merger. However, after a disqualification is approved by the Speaker, there is no bar before the same legislators to contest in elections to the Assembly via by-elections. The lack of a punitive prescription in the event of a valid disqualification, has served as bane for the democratic charter of the nation. This is because monetary involvement and mass bulk-trading is encouraged. The recent cases of Goa, Karnataka, and Madhya Pradesh are prime examples of how the lack of stern interdiction has promoted such trading of legislators. For the purpose of the current argument, the case of Madhya Pradesh will be taken up.
In the 2018 Madhya Pradesh Legislative Assembly Elections, neither side could muster up the numbers to form a government independently. Out of the 230 Assembly seats, the Indian National Congress (INC) won 114, while the Bhartiya Janta Party (BJP) won 109. Subsequently, INC, which was the single largest party, trumped the runners-up BJP, to forge an alliance and form the government. However, this government was short-lived as in March 2020, a political crisis ensued when the INC saw 20 of its legislators resign from the membership of the House, effectively bringing the majority mark down to a number which the BJP was comfortable with while staking a claim to form a new government. Soon after, a by-election was held wherein the rebel Members of Legislative Assembly (MLAs) contested from the BJP and won. Most of these rebel MLAs were accordingly awarded with ministerial positions.
The Madhya Pradesh fiasco is a classic example of how defections are effectuated wherein a split or merger cannot be realised. The politically ravenous have once again effectively found a loophole to steer through a broken system. The impediment before these legislators was that they could not devise any scenario which would fit the necessities of a merger or split. Therefore, they conveniently resign from their membership only to be re-inducted after a short period of time. With the introduction of this new mechanism, the provisions of split and merger are rendered redundant. This problem was noticed by the Report of the National Commission to Review the Working of the Constitution, which suggested certain amendments to the Government. Via the Constitution (91st Amendment) Act 2003, Article 361B was added to the Constitution. Article 361B provided that when a member is disqualified, he shall be barred from holding any remunerative post of public office until the completion of his original term, or the next election, whichever is earlier. However, this amendment has been heavily criticised for its lack of pragmatic and real-world application. This is because contesting in bye-elections is easy, and not uncommon. Therefore, in toto, there is no palpable barrier, set up by inclusion of Article 361B which would discourage defections. Instead of the current provisions of 361B, the limitation to host any public office should be for a period not less than 5 years from the date of such defection, or until the next assembly election. Such a provision would not only cleave out honest defections from motivated ones, but also serve to uphold the edifice of a constitutional and parliamentary democracy, since it would rebuff political instability and ensure that the faith of the electorate rests with their elected legislators.
A decision to the tune of the above suggestions was adopted by the Speaker of Karnataka Assembly in 2019, but the same was struck down by the SC. In Shrimanth Balasaheb Patil v. The Hon’ble Speaker, Karnataka Legislative Assembly, the SC struck down the decision of the Speaker to bar defected members for a term of 5 years. The decision was reached on two grounds. Firstly, the SC observed that the Speaker had maliciously rejected the resignations of the rebel MLAs but instead decided to disqualify them under Para 2(1)(b). Secondly, the SC noted that the power of the Speaker to disqualify members did not include the power to bar them from holding elections, and the same is violative of Article 191(1). However, the Court may have interpreted the provision under Article 191(1)&(2) in an underwhelming fashion. Here is a serious legal lacuna, since Article 191 does not prescribe the terms of such disqualification, and the terms are only codified in Article 361B.
As such, in the interest of Constitutional Morality, the Apex Court needs to revisit Articles 191, 361B to expunge and reform the terms of such disqualifications, interpreting the same as a valid ground to curb freedom of speech and expression under ‘morality’ as given in Article 19(2). The expression of morality must be interpreted in a wider fashion, to incorporate the relics of Constitutionalism and Constitutional Morality. Dr. B.R. Ambedkar laid a great emphasis on interpreting the Constitution whilst assimilating these ideas. While inimitably stressing upon unforeseeable future complications which might arise out of unchecked power of a legislature, Babasaheb Ambedkar questioned:
“Who can say how the people of India and their parties will behave? … it is futile to pass any judgment upon the Constitution without reference to the part which the people and their parties are likely to play. The diffusion of constitutional morality…. is the indispensable condition of government at once free and peaceable.”
Freedom and Independence of Legislator
The operative Paragraph 2(1)(b) of the Schedule has done more harm than good. While it was envisaged that instant provisions would limit defections, they have only served to clamp down intra-party dissent. This is because the scope to misuse the provision is wide. In Kihoto Hollohan, the full bench was in agreement that the provisions of Para 2(1)(b) must always be read along with provisions protecting a legislator’s freedom of speech under Articles 105(1) and 194. Two broad rules wherein the conduct of a legislator to would be subject to disqualification under Para 2(1)(b) were laid down:
- When the motion pertained to a vote of confidence/no-confidence;
- When the motion pertains to an integral policy or programme of the party with which the party went to elections.
However, barring the first clause, the meaning of ‘integral policy or programme’ is very subjective. In some instances, the conduct of a member outside of the house has also been invoked to initiate disqualification proceedings. Such an ambiguous definition, coalesced with the extensive powers vested with the Speaker, can be easily misused to muffle down dissent, and undermine the very nature of a legislature. Among other things, the primary function of the legislature is to make the executive accountable. Inhibiting members from independently expressing their opinions is a norm of a dictatorship, and not of a democracy. Subjecting legislators to pro-party propaganda, while restraining dissent is not only antithetical to the idea of democracy, but also goes contrary to the spirit of Articles 105&194. It must be noted that in a vast country like that of ours, people come from all walks of life, and from very different backgrounds. The issues vexing a particular constituency may not always be worrying another. Herein, an individual legislator better understands the complexities and dynamics of a local population, and may have a different policy idea/outlook for his electorate.
Therefore, amendments are required in Para 2(1) to expressly allow dissent among party members. Only in the event where a member votes against the motion of confidence, no confidence, or annual budget, should he be liable for disqualification under Para 2(1)(b). Additionally, in the event of a motion of confidence/no-confidence, the votes of recently defected members must be disallowed. Such an enactment would not only strengthen the root of the legislature but also serve to provide adequate checks and balances. Moreover, the responsibility of a candidate to the party on whose ticket, symbol and policy, he has fought and won the election would be restored.
Conclusion
While we contemplate on the operation of anti-defection laws in India, it is undeniable that the Indian polity is at a crucial juncture. The increasing number of defections threaten the eventual erosion of democracy. Recently, in many instances, the Courts have been at loggerheads with the Speaker of Assemblies on issues pertaining to defections. The eventual clashes are only expected to increase from here on out. As a result, revisiting anti-defection laws becomes essential for legal and political reasons. Legally, there needs to be a better mechanism to deal with electoral disputes, and settle the matter so as the Court is not approached every time a new assembly election concludes. Furthermore, a robust scheme needs to be deployed which can effectively check and control motivated defections. Politically, the Indian polity risks slipping into the hands and control of the commercially stronger section of people, who will at a time like this be more than content to bolster crony capitalism. The most appropriate time to address these issues is now.
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