The law amidst the politics of defection

In the light of similar political controversies as in Rajasthan, in several other states in the last few years, It Is IMPORTANT to EXAMINE THE TENTH SCHEDULE, Its OBJECTIVES AND to what Extent they STAND FULFILLED.

The recent upheaval in the political arena in the State of Rajasthan, where a group of dissatisfied members of the ruling party are in a highly publicized tussle with the Government of the day, has again invited attention to the anti-defection law enshrined in the Tenth Schedule of our Constitution. A historical and legal perspective of the provisions of the Tenth Schedule and their evolution sheds light on the framework and context in which this latest political controversy arises.

It was the State of Haryana that first introduced in Indian politics, the phrase ‘Aaya Ram Gaya Ram’ – an unflattering term for turncoats, when in 1967, an independent member of the Haryana Legislative Assembly, Mr. Gaya Lal, changed parties three times in a day. The realignment of loyalties between political parties as mode of political posturing has been a common feature of the Indian political landscape. According to news reports, recently about 30 MLAS of the ruling party in Rajasthan, the Indian National Congress, expressed their dissatisfaction with the leadership of the Chief Minister and claimed that the State Government was in a minority, leading to widespread conjecture that these MLAS would soon align themselves with the opposition in the State. Similar controversies have arisen in the last few years in the States of Arunachal Pradesh, Manipur, Andhra Pradesh, Telangana, Karnataka, Goa and most recently in Madhya Pradesh, which resulted in the fall of the State Government. In this context, it is important to examine the Tenth Schedule, its objectives and to what extent they stand fulfilled.

THE HISTORY AND OBJECTS OF THE CONSTITUTION (FIFTY-SECOND AMENDMENT) ACT, 1985

The Committee on Defections was set up pursuant to a unanimous resolution passed in the Lok Sabha on 08.12.1967 to set up a high level Committee consisting of representatives of political parties and constitutional experts to consider “the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor”. In its Report dated 07.01.1969, it observed that following the Fourth General Election, in the short period between

March 1967 and February, 1968, there were numerous instances of change of party allegiance by legislators in several States –438 defections in 12 months, as opposed to 542 cases in the entire period between the First and Fourth General Election. The other disturbing features of this practice highlighted were multiple acts of defections by the same person or set of persons, few resignations of the membership of the legislature or explanations by individual defectors, indifference on the part of defectors to political propriety, constituency preference or public opinion; and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections.

The Committee recommended that a defector should be debarred for a one year (or till such time as he resigned his seat and got himself re-elected) from appointment as a Minister, Deputy Minister, Speaker, Deputy Speaker, or any post carrying salaries/allowances to be paid from the Consolidated Fund of India or of the State or from the funds of government undertakings in the public sector, in addition to those to which the defector might be entitled as legislator. However, it could not reach an agreed conclusion in the matter of disqualifying a defector from continuing to be a Member of Parliament/state legislator. In view of the recommendations of the Committee, the Constitution (Thirty-second Amendment) Bill, 1973 was introduced in the Lok Sabha which provided the disqualification of a Member of Parliament or State Legislature on his voluntarily giving up membership of the political party which set him up as a candidate or of which he became a Member after the election, or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or any person/authority authorised on its behalf without prior permission. However, this Bill lapsed on account of dissolution of the House and the Constitution (Fortyeighth Amendment) Bill, 1979 introduced thereafter which contained similar provisions, also lapsed. This was followed by the Bill which was enacted into the Constitution (Fiftysecond Amendment) Act, 1985 (“52nd Amendment”), the Statement of Objects of which stated that the evil of political defections had become a matter of national concern and if not combated was likely to undermine the very foundations of our democracy and the principles which sustain it.

TENTH SCHEDULE: RULES, EXCEPTIONS AND AMENDMENTS

The 52nd Amendment interalia introduced the Tenth Schedule setting out the rules that apply to disqualification on the grounds of defection, the salient features of which are set out below.

A. When can a member be disqualified? i. The Tenth Schedule sets out the following circumstances in which a Member of Parliament or the State Legislature may be disqualified: i. An elected member (deemed to belong to the political party, if any, which set him up as a candidate) or a nominated member (deemed to belong to the political party of which he is a member at the time he takes his seat or of which he becomes a member within six months of taking his seat) of Parliament or a State Legislature belonging to a political party would be disqualified as a member of such House if [Para 2(1)]:

a. He voluntarily gives up his membership of such political party; or

b. He votes or abstains from voting in the House contrary to any direction of such political party or any person/authority authorized by it without prior permission and such voting or abstention is not condoned within 15 days. ii. An independent member of the Parliament or State Legislature will be disqualified if he joins any political party after his election. [Para 2(2)] iii. A nominated member of the Parliament or State Legislature (who is not a member of a political party when he takes his seat and has not become a member within six months of taking his seat) shall be disqualified if he joins any political party after the expiry of the sixmonth period. [Para 2(3)]

B. Are there any exemptions from disqualification? i. The Tenth Schedule also sets out circumstances in which the ordinary rules of disqualification do not apply: ii. No disqualification is incurred by a person who has been elected to the Office of the Speaker or Deputy Speaker of the Lok Sabha or a Legislative Assembly, or to the Office of Deputy Chairman of the Rajya Sabha or Chairman/deputy Chairman of the Legislative Council of a State, either on his voluntarily giving up membership of a political party on being elected to such office or on his rejoining such political party on his ceasing to hold such office. [Para 5]

There is also an exemption from disqualification carved out in the event of the merger of political parties.

Thus, no disqualification is incurred by a member where his original political party merges with another political party and he and any other members of his original political party have either (a) taken up membership of such other political party or of a new political party formed by the merger; or (b) not accepted the merger and opted to function as a separate group. However, such merger shall be deemed to have taken place only if not less than two-thirds of the members of the concerned House belonging to that political party, have agreed to such merger. [Para 4]

It is pertinent to note that when the Tenth Schedule was first introduced by the 52nd Amendment, it included another exception where a member claims that he belongs to a faction arising from a split in a political party so long as such faction is not less than one-third of the members of the concerned House belong to that political party [Para 3]. This exception was eventually deleted by the Constitution (Ninety-first Amendment) Act, 2003 (“91st Amendment”).

C. Who decides whether a member stands disqualified?

Paragraph 6 provides that whether a Member of Parliament or a State Legislature stands disqualified will be determined by the Chairman or Speaker of the concerned House, whose decision shall be final. All proceedings in relation to the question of disqualification are deemed to be proceedings in Parliament or the State Legislature under Articles 122 and 212 respectively. Paragraph 7 also provided that no Court would have any jurisdiction in matters of such disqualification, which however was eventually held invalid in Kihoto Hollohan v. Zachillhu & Ors., (1992) Supp(2) SCC 651 as discussed in more detail below.

D. What changes were introduced to strengthen the Tenth Schedule?

The 91st Amendment was introduced to remove certain shortcomings in the anti-defection law which were felt quite soon and become the subject of much deliberation. Various recommendations were made to strengthen the law including by the Dinesh Goswami Committee on Electoral Reforms (1990), the Law Commission of India’s 170th Report (1999), and the National Commission to Review the Working of the Constitution Report (2002). In addition to the deletion of the exemption envisaged in Paragraph 3 with respect to the split in a political party as aforesaid - which had been severely criticized for its destabilizing effects on Governments, the 91st Amendment introduced two other important changes: First, it provided that a member of Parliament or a State Legislature who stands disqualified would also be disqualified to be appointed a Minister or hold a remunerative political post until the term of his office expires or he is reelected to Parliament or the State Legislature. Secondly, a new restriction was introduced whereby the total strength of the Council of Ministers of a Government, both Union and State, could not exceed 15% of the total number of members of the Lok Sabha or Legislative Assembly of the State - this was intended to curb the practice of constitution of abnormally large Councils of Ministers.

CONSTITUTIONAL CHALLENGES AND JUDICIAL EVOLUTION

In the landmark decision of Kihoto Hollohan (supra), the Tenth Schedule was challenged before a Constitution Bench of the Supreme Court on a number of counts including that it was destructive of the basic structure of the Constitution as it violated fundamental principles of parliamentary democracy and was destructive of freedom of speech, right to dissent and freedom of conscience as it sought to penalize and disqualify elected representatives for the exercise of these rights and freedoms. (Para 24) Rejecting this contention, the Apex Court observed that the Tenth Schedule was intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections. (Para 53) However, the majority did hold that Paragraph 7 curtails the operation of Articles 136, 226 and 227 (even though it does not directly change their language) with respect to matters in the Tenth Schedule and hence would have required ratification under Article 368 (2) i.e. by the Legislatures of not less than one-half of the States. (Para 62) However, it was held that Paragraph 7 could be severed from the remaining provisions of the Tenth Schedule, which were complete in themselves, workable and not truncated by the excision of Paragraph 7. (Para 77) However, Justices L.M. Sharma and J.S. Verma in their dissenting minority opinion, declined to apply the doctrine of severability and held that, not only Paragraph 7, but the entire Tenth Schedule was rendered unconstitutional for want of prior ratification by the State Legislatures. (Para 170-177)

The other critical finding in Kihoto Hollohan (supra) was with respect to the role of the Speaker or Chairman. The majority held that the power to resolve disputes vested in the Speaker or Chairman by the Tenth Schedule is a judicial power and Paragraph 6(1) is valid to the extent it seeks to impart finality to their decision. However, such statutory finality does not abrogate judicial review under Articles 136, 226 and 227 insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with rules of natural justice and perversity, are concerned. (This view has been reiterated recently in Shrimant Balasahib Patil v. Speaker, Karnataka Legislative Assembly & Ors., (2020) 2 SCC 595, Para 108, 190.6) The deeming provision in Paragraph 6(2) was held to attract immunity analogous to that in Articles 122(1) and 212(1) i.e. to protect the validity of proceedings from mere irregularities of procedure. It was held that the Speaker or Chairman exercising powers under the Tenth Schedule acts as a Tribunal adjudicating rights and obligations and decisions made in that capacity are amenable to judicial review. However, judicial review would not cover any stage prior to the making of a decision by the Speakers/ Chairmen i.e. no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequences. (Para 111)

The majority in Kihito Hollohan (supra) also rejected the contention that the vesting of adjudicatory functions in the Speakers/chairmen would by itself vitiate the provision on the ground of likelihood of political bias. (Para 119) The dissenting minority, however, held that our constitutional scheme contemplates adjudication on questions of disqualification of elected members by independent authorities outside the House, i.e. President/governor in accordance with the opinion of the Election Commission, all of whom are high constitutional functionaries with security of tenure independent of the will of the House. The Speaker, being an authority within the House and his tenure being dependent on the will of the majority, likelihood of suspicion of bias could not be ruled out. Thus, the minority held that the entrustment of this adjudicatory function to the Speaker falls fouls of the constitutional scheme and violates a basic feature of the Constitution, making the Tenth Schedule unworkable for the Lok Sabha and State Legislatures, and hence unconstitutional. (Para 178-185)

Apart from this constitutional challenge, it is important to note certain decisions that have had far reaching implications. In Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641, the Supreme Court held that the words “voluntarily given up his membership” under Paragraph 2(1)(a) are not synonymous with “resignation” and have a wider connotation. It was held that an inference may be drawn from the conduct of a member that he has voluntarily give up his membership of a political party even though he has not tendered a formal resignation. (Para 11) This principle has been followed in Mahachandra Prasad Singh (Dr.) v. Chairman, Bihar Legislative Council, (2004) 8 SCC 747 (Para 11, 20).

In Shrimant Balasahib Patil (supra), the interplay between the resignation and disqualification of a member from the legislature was examined. The Supreme Court held that even if a member tenders his resignation, a prior act that attracts disqualification, does not come to an end. If disqualification proceedings can be rendered infructuous by tendering resignations, any member on the verge of being disqualified would immediately resign and escape the sanctions of Articles 75(1-B), 164(1-B) and 361-B, thereby defeating the intent of the Tenth Schedule and the spirit of the 91st Amendment. The decision of the Speaker that a member is disqualified relates back to the date of the disqualifying action. (Para 89, 92, 94, 190.3-190.5) Remarking on the growing trend of Speakers acting contrary to their constitutional duty of being neutral (Para 154, 190.9), the Supreme Court held that the Speaker cannot either indicate the period for which a person is disqualified, nor bar him from contesting elections. (Para 136, 148, 190.8)

Another important question that arose was the effect of the indecision of the Speaker on a petition for disqualification. In S.A. Sampath Kumar v. Kale Yadaiah (SLP (C) No(s). 33677/2015), a Division Bench of the Supreme Court referred to a Constitution Bench, the question as to whether the High Court under Article 226 could direct the Speaker of a Legislative Assembly to decide a disqualification petition within a certain time, and whether such direction would fall foul of the principles with respect to quia timet action laid down in Kihoto Hollohan (supra). However, in the recent decision of Keisham Meghachandra Singh v. Hon’ble Speaker Manipur Legislative Assembly (CA No. 547 of 2020), a three judge bench of the Hon’ble Supreme Court presided over by Hon’ble Justice R.F. Nariman held that this question already stands answered by a Constitution Bench in Rajendra Singh Rana & Ors. v. Swami Prasad Maurya, (2007) 4 SCC 270 which held that when a Speaker refrains from deciding a petition within a reasonable time, there is clearly an error which attracts the power of judicial review. (Para 22)

In Rajendra Singh Rana (supra), the Speaker while recognizing a split of 37 MLAS (of 109) of the ruling BSP accepting that they had merged with the Samajwadi Party, did not decide (and simply adjourned) petitions seeking the disqualification of 13 MLAS of the BSP who were part of these 37 MLAS who had prior to that, met the Governor and requested him to invite the leader of the Samajwadi Party to form the Government. The Constitution Bench held that the Speaker, in leaving the question of disqualification undecided, had failed to exercise the jurisdiction conferred on him by Paragraph 6 of the Tenth Schedule, which was clearly an error attracting the powers of judicial review. (Para 25, 29, 40-41) The Court in

Keisham Meghachandra Singh (supra) further held that the directions in Kihoto Hollohan (supra) with respect to quia timet actions do not, in any manner, interdict judicial review in aid of the Speaker arriving at a prompt decision as to disqualification - indeed acting as a Tribunal under the Tenth Schedule, he is bound to decide disqualification petitions within a reasonable period. While what constitutes “reasonable” will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, three months from the filing of the petition was held to be the outer limit for such decision. (Para 29)

The Court in Keisham Meghachandra Singh (supra) also observed:

“In the years that have followed the enactment of the Tenth Schedule in 1985, this Court’s experience of decisions made by Speakers generally leads us to believe that the fears of the minority judgment in Kihoto Hollohan (supra) have actually come home to roost.” (Para 30)

The Court further held:

“It is time that Parliament have a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto. Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification which arise under the Tenth Schedule with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy.” (Para 31)

While this larger question of whether the Speaker ought to be decision-making authority entrusted with deciding questions of disqualification under the Tenth Schedule, may or may not be revisited by the legislature, the immediate question which the present controversy in Rajasthan has thrown up – the extent to which intra-party dissent stands curtailed by Paragraph 2(1)(a) – will also have a far reaching impact on the future of anti-defection law. With a fresh challenge to the constitutional validity of Paragraph 2(1)(a) being mounted by the allegedly defecting members, the Hon’ble Courts may once again have to re-examine and perhaps re-define the extent to which intra-party dissent and anti-defection law can co-exist.

The authors are advocates of Karanjawala & Co. practicing in the Hon’ble Supreme Court of India and the Hon’ble Delhi High Court. Ms. Nandini Gore, Senior Partner and Ms. Tahira Karanjawala, Principal Associate, are also Advocates-onrecord. Mr. Arjun Sharma is a Senior Associate.