Anti-Defection Law

Disqualifications for Membership (Article 102)

Article 102(1) provides that a person shall be disqualified for chosen as, and for being, a member of either House of Parliament if he in 102) any of the following disqualifications

If he holds any office of profit under the Government of India the Government of any State, other than any office declared Parliament, by law.
If he is of unsound mind and stands so declared by a comp court
If he is an undischarged insolvent
If he is not a citizen of India, or has voluntarily acquired & citizenship of a foreign State, or is under any acknowledges allegiance or adherence to a foreign State.
If he is so disqualified by or under any law made by Parliament. In this respect, the Representation of People Act, 1951 was enacted by the Parliament. The Act prescribes the following disqualification:
- If he has been convicted or found to have been guilty of any offence or corruption or illegal practice in an election. It means the person shall be disqualified if he is guilty of committing corrupt practices at the election.
- If he has been convicted by a court in India for any offence resulting in imprisonment for two or more years.
- If he has failed to lodge a return of election expenses within the time and in the manner required by the Act.
- If he has any share or interest in a government contract for the supply of goods, or for the execution of any work or for the purpose of any service
- If he is a Director or Managing Agent or holds any office of profit in a government corporation in which the Government is holding 25 per cent shares
- If he has been dismissed from Government service for corruption or disloyalty to the State;
- None of the above disqualifications, however, operates for a period of more than six years.

If he is so disqualified under the Tenth Schedule to the Constitution which provides disqualification on the ground of defection.

Anti-Defection Law (ADL)

“Aaya Ram Gaya Ram” was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. The anti- defection law sought to prevent such political defections which may be due to reward of office or other similar conditions.

Benefits of ADL:

Provides stability to the government by preventing shifts of party allegiance.
Ensures that candidates remain loyal to the party as well the citizens voting for him.
Promotes party discipline.
Facilitates merger of political parties without attracting the provisions of Anti-defection Law.
Expected to reduce corruption at the political level.
Provides for punitive measures against a member who defects from one party to another.

Features of the Law:

Disqualification on ground of defection: A legislator belonging to a political party will be disqualified if he:
- (i) voluntarily gives up his party membership, or
- (ii) votes/abstains to vote in the House contrary to the direction issued by his political party. A member is not disqualified if he has taken prior permission of his party, or if the voting or abstention is condoned by the party within 15 days.
- Independent members will be disqualified if they join a political party after getting elected to the House. Nominated members will be disqualified if they join any political party six months after getting nominated.
Exemptions in cases of merger: Members are exempted from such disqualification when at least two thirds of the original political party merges with another political party. Further: (i) the members must have become members of the party they have merged with/into, or (ii) they should have not accepted the merger and choose to function as a separate group.
Decision making authority: The decision to disqualify a member from the House rests with the Chairman/Speaker of the House.

Relevance of ADL:

Defection vs Dissent: This law restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue.

Delay in Disqualification: The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea. There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions. In some Cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House.

Recurrent Merger vs Split Merger: In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken away in small groups gradually to join the ruling party. In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller groups. However, it is not clear if they will still face disqualification if the Presiding Officer makes a decision after more than 2/3rd of the opposition has defected to the ruling party.

Voluntarily giving membership vs Resignation: The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’.

The Supreme Court, in the Ravi Naik vs. Union of India case, has interpreted the phrase ‘voluntarily gives up his membership.’ It says: “The words ‘voluntarily gives 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 tendered his resignation from the membership of that party.
In Rajendra Singh Rana vs. 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 membership of the party on whose ticket the said members had got elected.

Ambiguity with Article 191 and power of Speaker: The absence of the words “being chosen as” in Article 191(2) in contrast to Article 191(1) suggests that a person who is no longer a member due to disqualification under Tenth Schedule does not suffer from the additional infirmity of not being allowed to become a member subsequently.

Case Study

Karnataka speaker took a controversial (because he can disqualify but not for the Complete remaining term if he/she has chances to contest by election or re-election) decision in disqualifying the 17 MLAs for the rest of the current assembly’s term, so that they do not contest by-elections to seek re-election and resume their membership of the house. The SC bench in Srimanth Bala sahib Patil vs Speaker Karnataka Legislative assembly, however, struck down this action of the speaker as unconstitutional, and declared them eligible for contesting the by-elections to the assembly.

Maharashtra Political crisis: Actually we need to understand two thing here:

Role of Speaker/Deputy Speaker.
Whether ADL will apply on rebel groups of Shindhe or not

Role of Speaker/Deputy Speaker:

So, when the ruling Maha Vikas Aghadi (MVA) coalition (the Shiv Sena, the Nationalist Congress Party and Congress) lost power after an internal split of the Shiv Sena party, the splintering groups joined BJP to for Government.
So as per the law, If certain people break from the party, then the anti-defection law comes into play. Under the law, whether one person defects or 100 person defects, you are voluntarily giving membership of the party and that may lead to disqualification.
The Deputy Speaker (there was no Speaker at the time) disqualified the “rebels”, who then appealed in SC, arguing that there was a pending no-confidence motion against the Deputy Speaker.
Because in Nabam Rebia case (2016),SC Held the Deputy Speaker or Speaker cannot decide on the disqualifications while his own removal was pending.
The SC in an “interim” order stayed the Deputy Speaker’s action but also directed a floor test. Accordingly Shindhe group won the floor test and form the government and appoint own speaker.

Whether ADL will apply on rebel groups of Shindhe or not

Now the 5 judge bench headed by CJI argued very differently: Mr. Shinde was sworn as Chief Minister and the opportunity given to him to establish majority on the floor of the House on June 30 only came because the Speaker could not disqualify him. For if he had disqualified him, all the 39 rebel MLA would have been disqualified.

A split does not mean that people who are party to the split leave the party. The Tenth Schedule (anti-defection law) also operates when a group of persons, whether minority or majority, claim they belong to the same party, means Some of the MLA obviously supports Thackrey, and some to Sindhe. ADL will apply on rebels from erstwhile Shiv sena party.

Recommendation

Supreme court:

The time limit for deciding the case of disqualification should not be more than three months in normal conditions and the Government should set up a Permanent Tribunal to decide the case.
In case of a Trust vote, the Governor does not need to wait for the completion of the entire process of disqualification.

Dinesh Goswami Committee:

A member voluntarily gives up the membership of his political party should not be disqualified.
A member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence and passing of budget should not be disqualified.

NCRWC(National Commission to Review the Working of Constitution): Once disqualified, it should be continued for at least next election.

Kihoto Hollohan vs Zachilhu: Constitutionality of Anti-Defection Law was upheld by Supreme Court by 3:2 majority.

SC ruled that Speaker/Chairman while deciding cases of anti-defection acts as a Tribunal and the decision of Speaker/Chairman is subject to judicial review. However, judicial review would not cover any stage prior to the making of decision by Speaker/Chairman.
Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.
Tenth Schedule’s provisions were remedial and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections

Keisham Meghachandra Singh Case:

Decision on Anti-defection of Speaker operates independently, it is not subject to approval of House. Immunity only from parliamentary procedure Decision of Speaker on anti-defection can be judicially reviewed and only the procedure followed cannot be judicially reviewed.
Judicial Review-Judicial Review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman.
Grounds of Judicial Review-Judicial Review is allowed on Speaker’s Decision of disqualification on grounds of infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity
Speaker/Chairman Quasi-Judicial Authority Speaker or Chairman, acting under Tenth Schedule is a Tribunal. Speaker is a quasi-judicial authority who is required to take a decision within a reasonable time.
Judicial Power of Speaker/Chairman – Power to resolve such disputes vested in the Speaker or Chairman is a judicial power.
Speaker to decide case in reasonable time – Supreme Court quoted Kihoto Hollohan where it held that Speaker while deciding case of anti-defection must decide within reasonable time and should not take more than three months.
Observation in Rajendra Singh Rana case – The person who has incurred disqualification does not deserve to be MPs/MLAs even for a single day.

International Experience

Most advanced democracies do not disqualify legislators for defecting against their parties. Such members may be subject to internal party discipline including expulsion from the party. The seating arrangement of the person changing his party allegiance may be modified in the House. Only in five other countries, members can be disqualified from the House for changing political allegiances as well as voting against the party line. These are Bangladesh, Guyana, Pakistan, Sierra Leone, and Zimbabwe. However, in Pakistan a member can be disqualified from voting against party lines only in certain cases. These include: (i) election of the Prime Minister/Chief Minister, (ii) vote of confidence/no-confidence, and (iii) money Bills or constitution amendment Bills.

Vacation of Seats-No Simultaneous Membership of more than One House (Article 101)

Article 101 (1) provides that no person shall be a member of both House of Parliament. It further says that Parliament, by law, shall make provision for the vacation, by a person who is chosen a member of both Houses, of his seat in one House or the other. The Representation of People Act, enacted by Parliament thus provides

If a person is elected to both Houses of Parliament, he will intimate, within 10 days from the publication of the election in which House he desires to serve. In default of such intimation within these ten days, his seat in the Rajya Sabha shall fall vacant on the expiry of such period.
If a sitting member of Rajya Sabha, i.e., a person already a member of Rajya Sabha, is elected to Lok Sabha, he may intimate his choice of the House he desires to serve within ten days. If he fails intimate, his seat in Rajya Sabha shall fall vacant on the expiration of such period of ten days.
If a sitting member of Lok Sabha is elected to Rajya Sabha, he may intimate his choice of the House he desires to serve within ten days of his election, in default of which, his seat in Lok Sabha shall fall vacant on the expiration of such period of ten days.

Clause (2) of Article 101 further provides that no person shall be a member of both of Parliament and of a House of the Legislature of a State. If a person is elected to both the Parliament and a House of the Legislature of a State, then he may make a choice of the House he desires to serve within such period as may be specified in Rules made by the President. If he fails to intimate within the specified period, the choice of the House, then on the expiration of such specified period, his seat in Parliament shall be vacant, unless he has previously resigned his seat in the House of the State Legislature. The Prohibition of Simultaneous Membership Rules, 1950, prescribes a period of 14 days for making the choice of the House.

The Rules further provide that if a person is elected to the Legislature of two or more States, his seat in the Legislatures of such States shall become vacant on the expiration of 10 days from the date of election if he does not intimate his choice of the House within this specified time or unless he has previously resigned his seat, in the Legislatures of all but one of such States.

Again, if a person is elected to more than one seat in a House, he is to intimate within ten days his choice of only one seat in that House. On his failure to do so, all his seats in that House shall become vacant on the expiration of the specified period.

Resignation by a Member of his Seat (Article 101):

Clause (3), of Article 101 provides that a member of a House a Parliament may resign his seat in that House by addressing to the Presiding officer of the House, his resignation. On the acceptance of his resignation, his seat in the house shall fall vacant.

The Constitution (Thirty-third Amendment) Act, 1974 inserted a Clause 3(b) of Article 101, to the effect. The Provision provides that Speaker or the Chairman, as the case may be, shall not accept the resignation of the member, of his seat in the House, if he is satisfied, from information received or otherwise, and after making such inquiry as he thinks that such resignation is not voluntary or genuine.

Absentation of a Member from the House’s Meetings [Article 101 Clause (4)]

Clause 4 of Article 101 provides that if for a period of sixty days, a member of either House of Parliament is, without permission of the House, absent from all meetings of the House, the House may declare his seat vacant. However, in computing the said period of sixty days, no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.

Decision on questions as to Disqualification of Members (Article 103):

Article 103 (1) provides: “If any question arises as to whether a member House of Parliament has become subject to any of the disqualifications in Clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final”.
Clause (2) further says: “Before giving any decision on any such the President shall obtain the opinion of the Election Commission shall act according to such opinion. The Commission, before giving it may hold such inquiry as it deems fit.

Penalty for Sitting and Voting as a Member in a House (Article 104):

Article 104 imposes a penalty of five hundred rupees, to be recovered as a person in the following cases

If he sits or votes as a member of either House of Parliament before he makes or subscribes an oath or affirmation in the form set out in the 3rd Schedule to the Constitution, before the President or some person appointed by him, in that behalf.
If he sits or votes as a member, when he knows that he is no qualified or that he is disqualified for membership thereof, or that he is prohibited, from so doing by the provisions of any law made by the Parliament.
The penalty of five hundred rupees is imposed in respect of each day on which such a person so sits or votes.

Salaries, Allowances and Pension of Members of Parliament (Article 106):

Article 106 provides that the Members of either House of Parliament shall be entitled to such salaries and allowances as may, from time to time be determined by Parliament, by law. In the exercise of this power Parliament enacted the Salaries and Allowances of Members of Parliament Act, 1954. This Act was amended in 1976 and renamed as the Salaries Allowances and Pension of Members of Parliament Act, 1954.
Section 8 A of The amended Act provides for payment of pension to the members, on their satisfying certain conditions stated therein.
In Common Cause, A Registered Society v. Union of India, it was contended that there being no specific provision in regard to the payment of pension to the Members of Parliament, the provisions of Section 8-A were not within the competence of Parliament. Rejecting the contention, Constitution Bench of five Judges of the Apex Court ruled that the Section 8-A was covered by the residuary Entry 97 of List 1.