It’s not about Rajasthan, Madhya Pradesh or Karnataka, though archetypes can be deduced from these. It is about an established malaise called defection and party hopping, about governor, speaker, whimsical changes in loyalties and Opposition opportunists. The Indian National Congress indulged in horse trading during its heyday and is now getting a taste of its own medicine, with BJP not being short on resources for sponsoring the turncoats. Winning candidates are spirited away to luxury hotels, they feign illness or go on “vacation", covenants are made and governments are toppled and governments are formed. In current times, as we have made peace with the immoral nature of politics, horse-trading has been accepted with open arms accompanied by well received references like “Chanakya Niti.”
Anti-Defection Law (1985)
So, endemic had defection become, that the 10th Schedule popularly referred to as the ‘Anti-Defection Law’ was introduced in 1985 by the 52nd amendment of the Constitution. This legislation contains 8 paragraphs- the first stating definitions, the second stating the disqualifications, the third (deleted by the 2003 Amendment) about splits within the party, the fourth exempting disqualification in case of mergers, the fifth further setting out certain exemptions, the sixth and seventh stating the person who would decide disputes and barring court intervention relating to matters concerning disqualification of a member, and finally, the last paragraph authorising a Speaker or a Chairman to make rules for a House in order to give effect to the provisions of the Schedule.
Paragraph 2 states that a member may be disqualified when he or she voluntarily gives up the seat or membership and when he votes contrary to the party directions or votes against the party directions/whip. However, if he or she has taken prior permission or is confined by the party with 15 days, he or she is not liable for disqualification. Paragraph 6 states that any decisions pertaining to the disqualifications shall be decided by the Speaker or the Chairman of the House and this decision would be final. Paragraph 7 further bars the jurisdiction of courts in any matter connected with the disqualifications of a member. Paragraph 8 assigns the Speaker of the House the power to make rules for implementing the provisions of the tenth schedule. Such rules have been framed for several states such as Goa and Gujarat.
Framed to act as a deterrent, it has been reduced to a piece of paper. Not only has it failed to stop ‘horse-trading’, but also been unsuccessful in vilifying the act. Few of its many loopholes include: -
Judicial Review- the Rule 7 states that any matter concerned with disqualification of a member of a House is outside the jurisdiction of all courts including the Supreme Court under Article 136 and High Courts under Article 226 and 227 of the Constitution to review the decisions made by the Speaker in this regard. The apex court in Kihoto Hollohon v. Zachilhu and Others, held that the law is valid in all respects including the sweeping discretion available to the Speaker expect on the matter related to the judicial review, which was held as unconstitutional.
Defining ‘voluntarily giving up’- Rule 2(1)(a) of the Tenth Schedule is quite ambiguous while mentioning that the member of the House would be disqualified from the party if the membership is given up voluntarily. This begs the questions that does it only cover the resignation of party member or has a wider meaning than that. The Supreme Court in Ravi Naik v. Union of India held that the term has a wider connotation and inference can be drawn from the conduct of the members. A person may voluntarily give up his membership of a political party even without tendering his resignation from the membership of that party. Other relevant case laws include Shri Avtar Singh Bhadana v. Shri Kuldeep Singh, Indian National Congress  and Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque, BSP .
Speaker of the house- it states that a defector can be disqualified by the Speaker
on the basis of a petition by any other member of the House. However, the practice of naming Speakers from the ruling party (which immediately compromises the independence bestowed on this office) means defections are allowed in nearly all situations and turning a blind eye to the motive behind them.
Office of the governor- the governor seems to be at his master’s bidding, erroneous ready to interfere by giving unsustainable directions to Speakers to have floor tests within 48/72 hours, only to assist the defectors to topple the government and preclude the speaker from discharging his 10th Schedule duties.
Anathema to free speech-it makes the member a slave of party whips. The freedom of speech has been granted to the members by articles 105 and 194 of the constitution, but the apex court has held in various cases that these articles are not supreme and other defection laws can have primacy over them in cases as decided by the Speaker or the Court of law. For addressing the issue, as the Dinesh Goswami Committee also suggested, the scope of the binding whip should be restricted to a vote of confidence.
No-confidence motions-cleared defectors, after being subjected to ongoing disqualification hearings before the speaker, file no-confidence motions against the speaker under a misconception of law that the apex court, in the Nabam Rebia versus Deputy Speaker case , rendered a speaker lame-duck and paralysed him the moment a no-confidence was filed against him. The speaker Rebia, only cautioned against speakers already facing prior and serious pending no-confidence motions from deciding disqualification issues against their accusers.
To conclude, the anti-defection law has failed to daunt India’s lawmakers as baits outweigh the cost of losing the seat. We, voters are left with no significant choice which is why such MPs and MLAs have the gumption to put up a valorous face and confront the electorate brazenly and repeatedly. Even if a piece of legislation is enacted to disqualify such turncoats for life it may not have any impact as their sole purpose of entering politics, to fulfil their pockets, would have been accomplished.
Further, when the loopholes of the said law were being exploited, it was toughened in 2003 by the 91st amendment of the Constitution. which altered Arts. 75 and 164 to include Clause (1-B) which provides that no member of the house who has been disqualified under para (2) of the tenth schedule, shall be appointed unless re-elected. In addition, the 2003 amendment deleted para (3) of the tenth schedule under which the exemption from disqualification was provided in case of the split of 1/3rd members. Now the law exempts defection only when it is at two-thirds (in a merger). As a result, “horse- trading” seems to have gone from retail to wholesale to be absolved from disqualification
Arguments in favour: First, in India the parliament is very important. In order maintain its status, we need to to ensure independence of lawmakers. If he or she does not agree to the party directions then he should be allowed to defect. An anti-defection law prohibits this and will lead to centralisation of power in the hands of the top party leadership. Secondly, the power to decide on disqualification cases should be taken by the parliament alone. To maintain separation of power, the judiciary must not intervene in the proceedings. Third, we do not need a more stringent law than the current one. A more ‘punishable’ law will only increase the cost of defecting, thus deterring members from taking decisions based on their conscience. If a more stringent law is passed then the defectors will take the route of resignations and this method cannot be stopped by any law.
Arguments against: First, the issuance of whips is absolutely necessary to maintains party discipline an ensure that decisions are taken effectively. Second, if the judiciary is barred from intervening, then this provision would violate article 136, 226 and 227 of the constitution. Thus, the speaker cannot claim any immunity from judicial review. Judicial review is the basic structure of the constitution. Third, the law must be made more stringent to deter the defectors. New punishments such as not allowing the defector to be monster for certain time after defection, should be introduced.
Committee Reports and Recommendations
Report of the Committee on Electoral Reforms (Dinesh Goswami Committee): It suggested the disqualification should be limited to instances when a member voluntarily gives up his or her memberships or when he or she abstain from voting or votes contrary to the party directive. It also recommended that the decision pertaining to disqualification be decided by the President or the Governor on the advice of the election commission.
170th Report on Reform of Electoral Laws of the Law Commission: It suggested to deleted the provisions exempting splits and mergers from disqualification. It recommended that there should be a provision to limit the issuance of party whips and that such whips should be used only and only when the existence of the entire government is at threat.
Halim Committee on Anti Defection Law: States that the words ‘voluntarily giving up membership of a political party’ should be clearly defined and several restrictions should be imposed of defectors such as prohibition from joining other political parties, holding offices etc.
Important Case Laws
1. In Kihota Hollohon v. Zachilhu, (SC) it was held that the disqualification under Schedule 10 is not violative of freedom of speech, vote and conscience of members of Parliament and legislatures of States and also not violative of Articles 105, 194.
Paragraph 7 of the 10th schedule was rendered to be unconstitutional due to non-ratification (was required to be ratified in accordance with the proviso to sub-Article 2 of Article 368). Further, decision of the speaker/chairman is not immune from judicial scrutiny and vesting of adjudicatory functions in speaker or chairman under schedule 10 is not violative of the basic features of democracy.
2. In Rajendra Singh Rana v. Swami Prasad Maurya, (SC) it was held that the Speaker acting under the 10th Schedule cannot say that he will first decide whether there has been a split or merger as an authority and thereafter, decide the question whether disqualification has been incurred, by way of a judicial adjudication sitting as a Tribunal. Such a decision has to be interfered with judicial review. That 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. Those who have left the party, will have, prima facie, to show by relevant materials that there has been a split in the original party (when entering in defence of disqualification). That requesting the governor to call the leader of a opposite party to form Government by members, amount to their voluntarily giving up the membership of their original political party and thus stand disqualified from the date they met the governor
Defection has truly reached to epidemic proportions, triggered by personal, pecuniary and partisan mulling. We must devise a comprehensive solution to change the nature of this beast. I wish to put forward 4 recommendations.
One, we must abolish all artificial distinctions between defection and split under 10th schedule and the later amendment, which now legitimises defections if you are able to induce two-thirds to join you. It should be replaced with a simple provision itemising all activities, both inside the House and outside it, culled from established supreme court cases.
Two, the governor should be constitutionally and explicitly barred from anything but a ceremonial role in the legislature to prevent meddling in the running of the House and the government.
Three, no one who resigns or is disqualified under this new listing, should be allowed to be a minister for six months or a year even after re-election. The same has been observed by a parliamentary standing committee. There is a need to start electing speakers, as in the old British tradition, by all or majority of parties unanimously selecting an appropriate person before each general election as presiding officer and not putting up a candidate against such a pre-selected speaker. The moral and political authority of such a person will be humongous.
Four, the governor should be constitutionally and explicitly barred from anything but a ceremonial role in the legislature to prevent meddling in the running of the House and the government.
The shenanigans are not unique to India. The United States has experienced defections, just recently in Mr. Trump’s impeachment, and has operated without an anti-defection legislation.
Of all the pending legislative reforms before the Indian government, tightening and cleaning up the anti-defection law is among the most urgent—if only to tend to the health of the world’s largest democracy.