ANTI-DEFECTION LAW: A Tool for Curbing Dissent under the Constitution
Authors- Yash Agarwal & Vemulapalli Tirumal Trinay
College- OP Jindal Global University
ISSN: 2581-8465
ABSTRACT
This Anti-defection laws in the X schedule of the Constitution have come into existence owing to the fact that there have been rampant instances of horse-trading and corrupt defections. The This paper aims at unleashing the use of the anti-defection law as a means of curbing the dissent by the parliamentarians in the noble idea of curbing the corrupt defections by the members of a political party. The dissent is also seen as a defection under the anti-defection law. This goes against the fundamental rights under Article 19(1)(a) and gives rise to forcing of opinion on the members by the leaders. The court has held in the case of PV Narsimha Rao v State that a parliamentarian cannot be held liable in the proceedings of the court with respect to the votes casted in the Parliament. This observation by the court is quite irrational because it defeats the anti-defection law and can give rise to corrupt practices of voting. The Supreme Court in the Kihoto Hollohan case has limited it to certain cases and also included the case of confidence and non-confidence motion as well.
INTRODUCTION
The Anti-defection laws under Schedule X of the Constitution were incorporated by the 52nd Amendment in 1985. These laws were put in place after the numerous defections the nation has witnessed in the previous Lok Sabhas. These laws were put in place to ensure there is no horse-trading and also to strengthen the political parties. Schedule X was thus seen as a tool to cure this malaise.[1] These laws ensure that no elected member of the house from any particular political party can leave the party or switch to another party. But the independent candidates can align with any political party even after they are elected to the house. The Tenth Schedule talks about the disqualification of the members in the second paragraph. The second paragraph says that
“2. Disqualification on ground of defection. –
(1) Subject to the provisions of paragraphs 3, 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House-
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.”[2]
Floor crossing alone is not considered to be as defection, even not complying with the party’s directives is also considered as an act of defection under Schedule X. That also is applicable to voting on a certain matters or abstaining from voting and is forcefully made to comply with the party’s stand irrespective of the member’s stand or opinion.
This paper aims at unleashing the use of the anti-defection law as a means of curbing the dissent by the parliamentarians in the noble idea of curbing the corrupt defections by the members of a political party.
The defection laws were introduced to check the rampant practice of parliamentarians leaving the political party they have won the election from and join other rival parties. These practices have played a major role in orchestrating a toppling of the current government and forming a new one. Anti-defection laws are in place to ensure that the spirit of democracy is upheld and the governments which are brought in power by the means of democratic practices are in power and can serve the people.
On contrary the Schedule X has failed to protect the sole thing it was brought in to protect. In our parliamentary structure, all the decisions are to be taken through debate and discussion. But paragraph 2(1)(b) of the schedule has hindered both. It says that once a Whip is passed by the chief on any particular matter which is to be brought in in the house for debate and discussion, all the members are to comply with the whip and cannot vote in contrary, if they do so they may be labeled as defectors and action might be taken by the speaker/ chairman of the house.
Even if the member sees merit in a contrary opinion, this provision restricts individual decision-making and mandates a faithful adherence to the directions of the party whip. By curtailing a parliamentarian’s discretion in voting, this provision has effectively mitigated the need for debate in Parliament. An obvious corollary of encumbered voting is that the law has negatived any scope for expressing dissent in the House.[3] For any parliamentarian to be effective they should have an option of intra party dissent and be vote according through their conscience instead of the decision of the party. Allowing for such a provision would uphold the essence of democracy where dissent is crucial for the system to be considered healthy.
THE DEATH OF DEBATE
The parliament as the legislature is one of the three organs of the government. The three organs keep a check on each other as a part of their functions. The legislature also checks on the executive and to enable that, the legislature discusses and debates on public interests and bills. This process is of the highest way of keeping a check on the executive is very crucial for the nation. Paragraph 2(1)(b) defies this right and the basic feature of democracy where there be a discussion and dissent.
The parliament rarely argues any bill in depth before passing it in the house and is easy to pass because the ruling party has a majority in the house and any member cannot defer the whip passed by the chief and if they do so they could be held guilty and considered a defector and might forego the membership of the house.
The members might show their dissent by not being present in the house while a bill is up for voting, but this does not do any good as their absence is not taken into consideration and the bill is passed if it receives half the member’s approval of the members present in the house, so the absence of members does not affect the proceedings of the house. The Women’s Reservation Bill, 2010 was tabled in the Rajya Sabha. It was reported that several parliamentarians had voted in favour, despite being vehemently opposed to the bill, owing to being bound by a whip.[4] There are several such instances and these instances show us the need for change in our laws for effective procedure. The member should be able to show their dissent and allow them to speak their mind instead of just being a puppet.
The Kihoto Hollohan judgment has laid why a debate is crucial and incentivizing the members to debate. “[…] Not unoften the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines […]” [5].
This observation highlights the value of a distinct opinion in shaping legislative action, by rightly placing a premium on a multitude of opinions being put forth in Parliament. Further, it may add nuances to a bill that are not contemplated if debate on the same is not lively and there is little engagement.
Each bill goes through three readings, there is a scope for debate after second reading and after third to some extent. The second reading ensures that all the questions are answered and are discussed, the third reading is for deciding if the bill should be passed or rejected, as a means of final discussion. So, there is not much scope of discussing the bill after the third reading but is vital as it effects the voting on the bill. The issuance of a whip and concomitant threat of disqualification, however, distorts this regular practice as the purpose of the last two readings is rendered useless by mandating how voting is to be conducted. Even where the bill is tabled before a Committee, it has been previously noted that a bill is not subjected to adequate scrutiny due to the low attendance of its members.[6] Paragraph 2(1)(b) has curtailed the essence of democracy in the intrinsically democratic entity, the Parliament. The effect of this restriction has transcended into the right of conscientious dissent being denied to members of parliament as well.
THE CURBING OF DISSENT
Article 105 of the Constitution[7] vests the parliamentarians with the privilege of having the freedom of speech which includes their vote in the parliament for which they will not be held liable under any proceedings in the court. This privilege grants the right akin to the fundamental rights under Article 19(1)(a)[8] of the Constitution. The privilege under Articles 105 and 194 are not fundamental rights[9] and are only valid until and unless the parliamentarian speaks or expresses his views within the parliament. The extent of this privilege vested in the parliamentarians is wider than the fundamental right under Article 19(1) because the latter can be curtailed by the state under Article 19(2) to (6) by applying reasonable restrictions.
The right to cast the vote is also covered in the privilege under Article 105(2).[10] The Hon’ble Supreme Court has also held that the right to cast vote of one’s own choice falls within the ambits of the “freedom of speech and expression” since it is also a way of expressing one’s feelings or opinions towards something or someone.[11] The right to vote for someone of our own choice without any direction from someone forms the essence of the democracy. The preference of the person casting the vote must be tantamount. The importance of each and every vote in a democracy makes the freedom of vote to one’s own preference in the parliament of extreme importance. The curtailment of the right to freedom of vote under Paragraph 2(1)(b) of Schedule X[12] is violative of the privilege granted under Article 105 and the fundamental right under Article 19(1)(a) of the Constitution.
The freedom to form an opinion is implied under the freedom of speech irrespective of the fact that the opinion is in the favour of the majority opinion or against it. In a democratic country, dissent forms the basis for it and is vital in the parliament. In the parliament, a debate taking into account the concerns of all the members is only possible when they will be allowed to vote freely irrespective of the fact that they vote against the party decision based on their own opinions because making the decision taken by the party mandatory on the members to follow won’t lead to an inclusionary debate by all the members and represent the ideologies of a few by all.
Dissent is being seen as a member challenging the party or going against it. The reasons for curbing the dissent are firstly, the elections are conducted to bring one of the parties contesting for the elections into power and not the individual ministers contesting from different locations. The emphasis is placed on the history of the votes received by the party and not by any individual parliamentarian. Therefore, the parliamentarian must adhere to the ideologies of the party, and censuring to them might lead one to lose. Secondly, a parliamentarian diverging from the views of the party is seen as a symbol of the instability of the party and poor unity within the party.[13] The Hon’ble Supreme Court in Kihoto Hollohan[14] case also highlighted the demerits of dissent by the parliamentarians.
Without any iota of doubt, all the political parties would cherish that all their members support their stand. This has been imbibed under the law using the anti-defection law applicable to the parliamentarians regardless of the fact that the parliamentarian has to take a decision not only for the benefit of the party to which one belongs but also to the constituency one has been elected. The very fact that if the parliamentarian votes against the decision of the party i.e. show his dissent considering him being disloyal is in itself fallacious. The independent opinion of the member must matter because that would lead to a successful operation of the democracy by bringing in the needed modifications required. Thus, the parliamentarians belonging to the same party are bound to be contingent along the wishes of their leaders in which direction their vote has to be casted.
The anti-defection law which has been imbibed to avoid the problem of floor-crossing has provided a grey area under the disqualifications mentioned under clause 2(1)(b) of Schedule X. The dissent of the members has been considered to be their defection from the party they are associated with. The anti-defection law is being misused by the political parties and this has led to a huge decrease in the authority of the members to exercise their own discretion while casting votes.[15] The parties are regulating the votes by using whips and showing the false union between all the members in the decisions taken by the leaders. These whips that are issued are not governed under the laws of anti-defection. The suppression of the members who have been chosen by the people to represent their voices are being oppressed by their leaders is very disappointing in a democratic country like India.
PREVENT CORRUPTION
As stated above, the anti-defection law was introduced to promote greater unity within the members of the party in the parliament. The increase in the horse-trading techniques and the increase in the corruption level makes the significance of this law greater. It is highly contentious whether the anti-defection law has led to a decrease in the corruption prevalent in the parliament. Towards the end of 1960, there were a lot of political defections. In fact, this number was increasing. The Committee created for dealing with the defections had even highlighted that the number of defections that occurred in the 4th Lok Sabha was nearly equal to the last three.[16]
The defection is being perceived as something that hinders the democracy in the Parliament. The act of defection of a member from a party under which, the member was elected for a constituency and hence had come to power is perceived as an act that has come out due to ill motives of the members and is most probably the result of the corruption or bribery. This can be directly related to the member who aids in the toppling of his/her own party in power and shifting to the other party and comes into power under them.
In the case of P.V. Narsimha Rao v State,[17] the Hon’ble Supreme Court addressed the issue of whether the privilege under Article 105(2) of the Constitution extends to the protection of a parliamentarian from criminal charges against him of alleged bribery in the casting of vote. It was held by the majority that the privilege extends to the parliamentarian even under the circumstances of conspiracy or accepting bribery in casting the votes in the Parliament. Therefore, a parliamentarian cannot be held liable in the proceedings of the court with respect to the votes cast in the Parliament.
The purpose behind the law was to admonish the parliamentarian from the judiciary with respect to the vote cast by him/her. This statute must not have been interpreted in this manner so as to absolve the parliamentarians even if they commit a crime while voting in the parliament.[18] The court’s observation in the case was quite irrational since it held that the activity of casting votes is internal to the Parliament while it should have noted that the acts of corruption or a conspiracy must be dealt by the laws of the country framed for them because such acts are not internal to the parliament and must not be included within the privilege.
The Hon’ble Supreme Court has however made the parliament the judge in the cases of cash-for-votes. The parliamentarian would be held accountable for the contempt in the Parliament. If the Parliament feels it relevant, the case can be referred to the court based on their take on the matter. Thus, making the Parliament a sole judge in such matters is inadequate because the criminal provisions are the ones designed for specific cases and the same must be used for deterrent. This is an unnecessary privilege granted to the parliamentarians. It is very unreasonable and problematic to leave such a wide gap in the constitution under the privileges while expecting the anti-defection law to work against the defections by preventing the conspiracies and corruptions by the members.
CONCLUSION
In Kihoto Hollohan, the Supreme Court took into account the comparative understanding of the functioning of parliaments and political parties. It observed that there are several cogent arguments that impress upon the court, the importance of a party maintaining a united stand when laying forth their position and opinion.[19]
Keeping in mind the ideals of a well-functioning parliamentary democracy, however, the Supreme Court held that party cohesion must be maintained only in limited cases. The element of parliamentary democracy could not be held to suffer at the altar of mere party stability. While the Court held that the wide phraseology could not justify a constitutional challenge, it did resort to harmonizing the provision along with the rest of Schedule X.[20] It did so by limiting the very cases in which a member could be disqualified for a vote contrary to the directions of the whip. These cases were extended to a vote of confidence or no-confidence as well as all matters concerning policies and programs on the strength of which the party came to power.[21]
This ground infers that if a parliamentarian has been voted to power based on the arrangements of his gathering laid before the electorate, contradicting against partisan loyalties on the occasion of casting a ballot adds up to a break of certainty. The transition to disallow disagreeing to the whip in such cases is counterproductive. This is so on the grounds that in a constituent age where large books are distributed as manifestos, it is viable for ideological groups to incorporate an array of extensively expressed arrangements planned to be acquainted all together with make a bigger vote bank. The Court, therefore, by attempting to constrain the instances of disqualification from voting, has unwittingly given too expansive a ground for when dissent is prohibited. Thus, the Court’s best intentions are prone to be misconstrued by this inherent flaw seeing as it does not restrict the plethora of issues concerning which whips can be issued.
By circumscribing the ambit of disqualification, it seeks to make the necessary change of creating greater room for political and policy expression in the Parliament. Such a law would liberate legislators from the whip-imposed fear of losing their membership except in cases where the life of the government is threatened by a no-confidence motion, money bills, and some crucial financial matters.”[22] This measure would act as an effective countervailing approach to the flaws in Kihoto Hollohan. An alternate proposal had been discussed by the 170th Report of the Law Commission of India. It suggested that there must be regulation on the issue of whips. It opined that whips should be allowed to be issued solely in cases where the existence of the government is under threat.[23]
[1] M.P JAIN, INDIAN CONSTITUTIONAL LAW 62 (2010).
[2] Constitution of India, (2020).
[3] V. N. SHUKLA, THE CONSTITUTION OF INDIA 1064 (M.R Singh ed., 2008).
[4] The Telegraph, Agree to Disagree, April 21, 2010 available at http://ww.telegraphindia. corn/1100421/isp/opinion/story_12362774jsp.
[5] 1992 SCR (1) 686
[6] National Social Watch, Citizen’s Report on Governance and Development 2010, available at http://socialwatchindia.net/publications/citizens-report/citizens-report-on-governance-anddevelopment-2010-executive-summary
[7] The Constitution of India, 1950.
[8] Ibid.
[9] KA Nambiar v CSG of Madras AIR 1966 SC 657.
[10] The Constitution of India, 1950.
[11] People’s Union for Civil Liberties v UOI 2004 2 SCC 476.
[12] The Constitution of India, 1950.
[13] Kihoto Hollohan v Zachillhu 1992 Supp2 SCC 651.
[14] Ibid.
[15] Law Commision of India, Reform of the Electoral Laws, 170th Report Part-2 Chap 4
[16] Kihoto Hollohan v Zachillhu 1992 Supp2 SCC 651.
[17] 1998 4 SCC 626.
[18] MP Jain, Indian Constitution Law, Eighth Edition, 2019, Lexis Nexis.
[19] Kihoto Hollohan vs Zachillhu And Others1992 SCR (1) 686.
[20] PRS Legislative Research, Vital Stats: Legislation in Parliament, available at http://Aww. prsindia.org/administrator/uploads/general/1241757092~~Legislation%20inO20Parliament. pdf
[21] MINISTRY OF HOME AFFAIRS, REPORT OF COMMITTEE ON DEFECTIONS UNDER THE CHAIRMANSHIP OF SHRI Y. B. CHAVAN (1969).
[22] B. Venkatesh Kumar, Anti-Defction Law: Welcome Reforms, 38(19) EcoNomc & POLITICAL WEEKLY 1838 (2003).
[23] LAW COMMISSION OF INDIA, 1701 REPORT: REFORM OF THE ELECTORAL LAWS (“1701 REPORT), Part-II, Chapter-IV.