Introduction

The 10th Schedule to the Indian Constitution, that is popularly referred to as the ‘Anti-Defection Law’ was inserted by the 1985 Amendment to the Constitution. ‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group” The Advanced Law Lexicon defines defection as, “crossing the floor by a member of a Legislature is called defection.” In short, defection is an act by a member of a particular party of disowning his loyalty towards that particular party and pledging allegiance to another party. This is what the Law Lexicon describes as ‘crossing the floor’.

The reasons for the addition of this Schedule were explained by the Statement of Objects and Reasons of the Fifty-second Amendment (1985) to the constitution in the following words, “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. With this object, an assurance was given in the address by the President to Parliament that the government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance.”

The scope of this anti-defection law was examined in detail in Kihoto Hollohan v Zachillhu , a case that also analyzed various other aspects of this legislation also. Here, the court, speaking about the necessity of an anti-defection legislation, said, “The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed to disqualify the members of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House. The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule.”

Overview of Schedule X

This succinct legislation contains 8 paragraphs- the first setting out definitions, the second stating the disqualifications, the third (now deleted by the 2003 Amendment to the constitution) about splits within the party, the fourth about a disqualification not to apply in case of mergers, the fifth setting out certain exemptions, the sixth and seventh- stating the person who would decide disputes and barring jurisdiction of courts in respect of questions relating to disqualification of a member, and finally, the last paragraph enabling a Speaker or a Chairman to make rules for a House in order to give effect to the provisions contained in the Schedule.

The Courts of the land have been called upon to adjudicate upon and interpret almost all these provisions. Perhaps the one clause that has come under the judicial microscope the maximum number of times, is para 2 that sets out the disqualifications of a member. Given the vicissitudes of Indian politics, the courts have taken defiant stands against acts of defection. These provisions are examined in greater detail below and aided by case laws. This article would attempt to bring out the scope and the essence of these rules.

Analysis of Provisions of Schedule X

A. Para 2-Disqualifications

The section that would verily form the crux of this legislation is paragraph 2 that gives the circumstances when a member would incur disqualification from the House. This para would be dealt with in detail under this article, primarily for two reasons- one, that it forms the quintessence of this law and hence, a comprehensive understanding of this provision is crucial and two, because the judiciary has been called upon a number of times to interpret its provisions and it has therefore shed some light on the manner in which these provisions should be construed.

Therefore, we see that the above para sets out when a member would incur a disqualification (under para 2 (1) (a) and (b)). The provision seems to be fairly clear when it provides two cases wherein the disqualification would apply- first, when there is a voluntarily giving up of seat by the member and second, when he votes (or abstains from voting) contrary to the directive issued by the party. Now, two important questions arise in this regard-

• What would constitute ‘voluntarily giving up of seat’?
• What is the full import of 2 (1) (b) wherein voting/abstention from voting against the party?

At the first instance, the phrase ‘voluntarily giving up of seat’ sounds pretty straightforward. It is giving up of the seat in the House by one’s own will. However, the Courts have given certain pointers on its interpretation. In Ravi Naik v Union of India , the Supreme Court says, “The words ‘voluntarily given up his membership’ are not synonymous with ‘resignation’ and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not rendered his resignation from the membership of that party. 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 to which he belongs”.

Referring to these words, in the case of Rajendra Singh Rana v Swami Prasad Maurya and Others the Supreme Court held that the act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government, itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members had got elected. In this case, in the 2002 Assembly elections in the State of Uttar Pradesh, a coalition government was formed since none of the parties secured a majority. In the middle of 2003, a unanimous decision was taken by the Cabinet to dissolve the Assembly. After the Cabinet’s decision and before the resignation of the leader of the coalition Government (then, Mrs. Mayawati, belonging to the Bahujan Samaj Party [BSP]), thirteen members from the BSP met the Governor and requested him to invite the leader of the opposite party (then, the Samajwadi Party [SP]) to form the Government. It was in this context that the Court held the above.

Para 2 and its Constitutional validity

The constitutional validity of paragraph 2, especially the clause providing that the member would incur a disqualification if he votes/abstains from voting against the party directions, has been challenged. The Supreme Court has analyzed this point in detail in Kihoto Hollohan v Zachillhu . Explaining its position, 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…”

Holding that the provisions of the Tenth Schedule are perfectly valid, the Court went on to say, “[T]hat the Paragraph 2 of the Tenth Schedule of the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected members of the Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended. The provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 195 of the Constitution.”

Other provisions regarding disqualifications under this head are contained in paragraph 3 (that was deleted by the 2004 Amendment to the Constitution), which provided for a case wherein a split takes place in the party. A number of cases have been decided on this subject. Paragraph 4 dealt with a disqualification in cases of merger whereas paragraph 5 sets out certain exemptions in favour of the Speaker or the Chairman of the Houses of Legislature.

Other provisions of Schedule X

Having set out what would entail a disqualification from the House, the Schedule now goes on to clarify, in paragraph 6, who the deciding authority would be in case a question regarding the incurrence of a disqualification. It says that any such question would be decided by the Speaker or the Chairman of the House and his decision in this regard would be final. An interesting question that the Court was called upon to decide with regard to this provision was whether the proceeding before the Speaker in the nature of a judicial one, and whether the office of a Speaker in this regard could be termed as a Tribunal? Answering both the questions in the affirmative the court said, “It is therefore inappropriate to claim that the determinative jurisdiction of the Speaker of the Chairman in the tenth Schedule is not a judicial power and is within the non-justiciable legislative area.”

Speaking about how the Speaker’s authority could be a Tribunal, the Court elaborated thus, “Where there is a lis -an affirmation by one party and denial by another-and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a Court.” In this instant case, the Court has taken recourse to many previous judgments and commentaries to explain this point.

In Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors , the Andhra Pradesh High Court had to decide, inter alia, the question of whether the Speaker, while exercising jurisdiction, can decide whether or not a Legislator belongs to a particular Legislature party. Holding that a Speaker could indeed decide thus, the Court said that if, in deciding the question of a member’s disqualification depended upon an answer to which political party had set such member up and whether or not he belonged to such party, he should be allowed to decide such question. In the words of the Court, “there is nothing in paragraphs 1, 2, and 6 of the Tenth Schedule which fetters exercise of jurisdiction by the Speaker to decide this question.”

Paragraph 7 of the Schedule bars the jurisdiction of courts in any matter connection with the disqualification of a member of House under this Schedule. Of course, this does not exclude Court’s intervention under articles 32, 226, 227, 136 under the Constitution. This position was made very clear by the Supreme Court in Kihoto Hollohan’s case. Citing various authorities, the court analyzed the meaning of the word ‘final’ in the context of such clauses and said, “There is authority against the acceptability of the arguments that the word ‘final’ occurring in paragraph 6 (1) has the effect of excluding the jurisdiction of the courts in articles 136, 226, 227.”

The final provision in this legislation gives the Speakers of the House to make rules for giving effect to any provision contained in the Schedule. In pursuance of this power, the states of Goa, Maharashtra, Gujarat, Haryana, Bihar, Kerala, Karnataka and others and also the Houses of the Parliament, both the Rajya Sabha and Lok Sabha have made rules in this regard. These Houses would be bound by the rules contained in the Schedules as also the ones that have been enacted specially for them.

Conclusion

The introduction of Schedule X in the Constitution attempted to bring in a comprehensive legislation that would assail the menace of defection. While the law has succeeded in this aspect to a reasonable degree, there were certain ambiguities. The Courts of the land have done a fair job in expounding the stance by applying the law to particular facts and circumstances. Nevertheless, very few general propositions have been laid down which have a universal application. Thus, there seems to be considerable scope for judicial interpretation, one that may give further clarity on the law and may bring in a wider range of cases within the umbrella of this legislation.