Voluntarily giving up party membership
Under the Tenth Schedule, voluntarily giving up membership of a political party is also one of the grounds to be disqualified as a defector. However, what constitutes the voluntary giving up of party membership is not defined under the Schedule. The Supreme Court has held that voluntarily giving up membership is not synonymous with only formally resigning from the party, and has a much wider connotation. A person may voluntarily give up his membership even without resigning from the party. The conduct of a member could be seen to draw an inference of whether he has voluntarily given up the membership of the party, even without tendering a resignation. This possibly implies that an action of legislator both inside and outside the House can be looked into to check if it qualifies as voluntarily giving up party membership. Hence, a legislator could never speak against the party’s mandate, or agree with an opposing party’s view.
The intervention of the higher judiciary was sought to decide questions such as what kinds of conduct outside the legislature would fall in the category of defection, and what was the extent of the Speaker’s power in deciding defections. The Supreme Court, while upholding the supremacy of the Speaker in defection proceedings, also held that the Speaker’s decisions were subject to judicial review.
The 2003 Amendment
The last step in the legislative journey of the anti-defection law came in 2003. A Constitution Amendment Bill was introduced in Parliament by the Vajpayee Government and a committee was formed to address some of the issues with the law. A committee headed by Pranab Mukherjee examined the Bill. The committee observed: “The provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further it is also observed that the lure of office of profit plays dominant part in the political horse-trading resulting in spate of defections and counter defections.”
Supreme Court held that if a member belonging to a political party is expelled from the party after being elected, he shall continue to belong to that party as an unattached member. If such a member joins another political party after being expelled from his original party, he will be deemed to have voluntarily given up his membership of the original party. The Tenth Schedule exempts elected members from disqualification in cases of mergers between political parties. A merger requires at least two-thirds legislators of the original political party to agree to it.
The Bombay High Court has held that the Tenth Schedule provides for two distinct possibilities involving the merger of political parties. The first possibility involves the merger of the original political party with another party. Such a merger happens outside the House. The second possibility involves a deemed merger of the parties when at least two-thirds members of the legislature party agree to such a merger. The Court ruled that while both these possibilities are distinct, legislators have the option to agree or not to agree with the merger
Some of recent years defections are as the data provides
In Maharashtra (2022): 40 out of 55 MLAs of the Shiv Sena walked out of the coalition government formed by the Shiv Sena, Nationalist Congress Party, and Indian National Congress in Maharashtra. The MLAs that walked out of the coalition then formed the government in the state by entering into a coalition with the primary opposition party, Bharatiya Janata Party. While more than two-thirds of the Shiv Sena MLAs walked out of the earlier coalition, they did not merge with any political party subsequently. Both factions of the party now claim to be the original Shiv Sena. In an interim order, the Election Commission disallowed both factions of the party from only using the name Shiv Sena and the election symbol of the original party.
In Madhya Pradesh (2020): In March 2020, MLAs of the Indian National Congress resigned from their membership of the legislative assembly which led to the fall of the government in the state. Later several of these MLAs contested and won by-elections on tickets of the Bharatiya Janata Party.
Karnataka (2019): 17 MLAs from the ruling coalition of Indian National Congress and Janata Dal (Secular) resigned from their membership of the Karnataka Legislative Assembly. However, their resignations were not accepted by the Speaker. In the meantime, the government had to prove its majority in the assembly through a confidence motion. The MLAs did not vote in the motion and the government fell. Subsequently, the Speaker rejected the resignation of the MLAs and disqualified them till the end of the assembly’s term in 2023. The Supreme Court upheld the Speaker’s decision to disqualify the MLAs but set aside the order on the term of their disqualification. Several of the disqualified MLAs joined the Bharatiya Janata Party and contested the bye elections.
Presiding officers have not been impartial when deciding cases of defection: According to the Tenth Schedule, the decision on whether to disqualify a member from the House is taken by the Speaker or the Chairman. In such cases, the presiding officer’s decision is final. The Supreme Court has held that the provision granting finality to the order of the speaker/chairman is valid. While functioning under the Tenth Schedule, the presiding officer acts as a tribunal and exercises judicial power. Decisions taken in such capacity are subject to judicial review. However, while judicial review is permissible; it should not cover any stage prior to the presiding officer taking a decision on the question of disqualification. It is important that the decisions taken by the presiding officer under the Tenth Schedule are impartial and independent of political considerations. The role of the presiding officers is such that they are assumed to be impartial. However, in several instances it has been seen that the presiding officers do not disqualify legislators or delay the decisions regarding disqualifications, therefore putting their allegiance into question. The minority view in Kihoto Hollohan had held that the Speaker is dependent on continuous support of the majority in the House. Thus, he does not meet the requirement of an independent adjudicating authority under the Tenth Schedule.
Manipur: In the elections for the 11th Manipur Legislative Assembly in 2017, none of the political parties could secure a clear majority. The Bharatiya Janata Party staked a claim to form a government in the state with a support of an MLA who had been elected on the ticket of the Indian National Congress. The MLA was even made a minister in the BJP-led government in Manipur. The speaker of the legislative assembly took no decision on the multiple disqualification petitions filed against the minister for switching parties after being elected to the House. In March 2020, the Supreme Court removed the MLA from the state cabinet and restrained him from entering the legislative assembly. About 10 days later, the MLA was disqualified by the speaker.
Telangana: After the Telangana Rashtra Samithi (TRS) formed the government in Telangana in 2014, 26 MLAs defected from opposition parties to join the TRS at different points in time. However, the speaker of the legislative assembly in the state took no decision on the disqualification petitions until the dissolution of the legislature before elections.
Andhra Pradesh: 23 MLAs from YSR Congress defected to the Telugu Desam Party which was in power in the state. The speaker did not act on the petitions seeking to disqualify these MLAs from their membership of the House. Four of these MLAs were even appointed as ministers in the state government.
West Bengal: After elections to the West Bengal legislative assembly in 2021, an MLA who was elected on the ticket of the Bharatiya Janata Party was seen to have joined the ruling All India Trinamool Congress. A petition was filed before the speaker to dismiss him from the House on the grounds of defection. However, the speaker rejected the petition to disqualify the MLA. The Calcutta High Court held that the speaker had ignored some of the evidence which was placed on record to support the disqualification petition against the MLA. On these grounds, the Court found the speaker’s orders to be perverse and unsustainable. The Court directed the speaker to take a fresh decision on the petition after giving due regard to all relevant documents. According to news reports, in June 2022, the West Bengal speaker again rejected the petition to disqualify the MLA on grounds of defection.
The Law Commission (2015) noted that legal challenges against decisions taken by Speakers on disqualification erode the confidence placed in the office of the Speaker. The Commission recommended that the power to decide on questions of disqualification on the ground of defection should be vested with the President or the Governor, who should act on the advice of the Election Commission of India (ECI). However, this solution also is based on the assumption that the ECI acts in an impartial manner.
Another lacuna associated with the decision-making power of the presiding officer under the Tenth Schedule is the absence of a timeline to take decisions. The Anti-Defection Law is silent on the maximum time within which a decision must be taken on questions of disqualification. The Supreme Court (2020) has observed that while acting as a tribunal under the Tenth Schedule, the speaker is bound to decide disqualification petitions within a reasonable period. While what time period is reasonable will depend on the facts of each case, the Court held that disqualification petitions must be decided within three months from when they are filed.
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.
The (ab)use of the law? The removal of the split provision prompted political parties to engineer wholesale defections (to merge) instead of smaller ‘retail’ ones. Legislators started resigning from the membership of the House in order to escape disqualification from ministerial berths. The ceiling on the size of the Council of Ministers meant an increase in the number of positions of parliamentary secretaries in states. The Speakers started taking an active interest in political matters, helping build and break governments.
The anti-defection law does not specify a timeframe for Speakers to decide on defection proceedings. When the politics demanded, Speakers were either quick to pass judgment on defection proceedings or delayed acting on them for years on end. The anti -defection law has not been able to stop political defections. The evil of political defections continues to be a matter of national concern and needs to be curbed in the interests of purity of electoral process and democracy.
(The Author is Senior Advocate, Supreme Court of India