Issue 68 Vol III, July 31, 2008

L A W  &  J U S T I C E

What is Anti-Defection Law in India?
Joginder Singh Toor

INDIAN parliament recently witnessed an ugly spectacle of crossing voting and display of money and political power during the confidence motion by the current UPA government.  Since elections are a few months and the charm to side with ruling alliance was too attractive, the anti defection law did not deter the members of the Lok Sabha from deserting their parties and voting for the ruling party or for the  opposition.

What exactly is this law?

The Tenth Schedule - popularly known as the Anti-Defection Act - was included in the Constitution in 1985 by the Rajiv Gandhi ministry and sets the provisions for disqualification of elected members on the grounds of defection to another political party.

The law was added via the 52nd Amendment Act, 1985, soon after the Rajiv government came to power with a thumping majority in the wake of the assassination of Prime Minister Indira Gandhi. The Congress had won 401 seats in the Lok Sabha.

• What are the grounds for disqualification under the Anti-Defection Law's Articles 102 (2) and 191 (2)?

a) If an elected member voluntarily gives up his membership of a political party;

b) If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorised to do so, without obtaining prior permission.

As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorised person within 15 days of such incident.

• What were the loopholes?

As per the 1985 Act, a 'defection' by one-third of the elected members of a political party was considered a 'merger'. Such defections were not actionable against. The Dinesh Goswami Committee on Electoral Reforms, the Law Commission in its report on "Reform of Electoral Laws" and the National Commission to Review the Working of the Constitution (NCRWC) all recommended the deletion of the Tenth Schedule provision regarding exemption from disqualification in case of a split.

Finally the 91st Constitutional Amendment Act, 2003, changed this. So now at least two-thirds of the members of a party have to be in favour of a "merger" for it to have validity in the eyes of the law. "The merger of the original political party or a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger," states the Tenth Schedule.

• Under which circumstances is a split in a party not considered a 'defection'?

A split in a political party will not be considered a defection if an entire political party merges with another; if a new political party is formed by some of the elected members of one party; if he or she or other members of the party have not accepted the merger between the two parties and opted to function as a separate group from the time of such a merger.

• What are the powers of a party whip under the Constitution in case of a defection?

The whip upholds the party directives in the House as the authorised voice of the party. On defection of elected members of his party, the whip can send a petition on the alleged defection to the Chairman or the Speaker of a House for their disqualification. He can also expel the members from the party. But this does not necessarily mean that the members so expelled lose their seats in the House. They continue to hang on to their seats as long as the Chairman or the Speaker of a House gives a final decision on their disqualification from the House after a proper enquiry on the basis of the petition filed by the party whip.

• What are the options before a disqualified elected member?

The members so disqualified can stand for elections from any political party for a seat in the same House. But he naturally cannot get a ticket from his former party.

• Who is the deciding authority?

The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, and his decision is final. All proceedings in relation to any question on disqualification of a member of a House under this Schedule are deemed to be proceedings in Parliament or in the Legislature of a state. No court has any jurisdiction.

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court. E-mail: jogindersingh_toor@yahoo.com]

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Speaker’s refusal to resign invites no disqualification
Joginder Singh Toor

Som Nath Chatterjee, Speaker Lok Sabha, a 10 times Member Parliament, a jurist known for his exposition of new ideas has always been in the news. He conducted the Parliament during trust vote on July 22-23, 2008 in a way that each concerned showered praise on him except his own party, the CPM which dismembered him for compromising the party position. Since then he has been focus of much more attention. There had been endless debate, both in the print media and on for likely outcome of relevant constitutional provisions that may affect his high post and political image.

Article 93 of the Constitution provides that “The House of the People, shall as soon as may be, choose two members of the House to be respectively Speaker and Deputy Speaker thereof and, so after as the office of Speaker or Deputy Speaker becomes vacant, the House choose another member to be Speaker or Deputy Speaker as the case may be” and Article 94(a) provides “shall vacate his office if he ceases to be a member of the House of the People.” “(b) may resign by writing under his hand addressed to the Deputy Speaker and to the Speaker if the Deputy Speaker resigns. The Speaker is to preside over the sittings of the House of People except when a resolution regarding his removal is under consideration.

The present controversy revolves around the provisions of Article 100 and the Tenth Schedule.  Article 100(1) provides for the voting right of the Speaker. All questions at any sitting of either House or joint sitting of the Houses, shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting as Chairman or Speaker.

“The Speaker or the Chairman, or person acting as such, shall not vote at first instance, but shall have and exercise a casting vote in the case of an equality of votes.”

The pertinent question in the whole controversy is as to when the member of the House ceases to be member of the House, when as per Article 94(a) provides that the Speaker has to vacate his office under Article 101(2) if a person is chosen as a member of both the Houses of Parliament and to one of the House of Parliament and State Legislature unless he resigns from the other House within the period and in the manner provided by law or if a member of either House of Parliament incurs any of the disqualifications mentioned in Section 101(1) and 101(2) above, or has voluntarily resigned from the membership of the House or for a period of 60 days is without permission of the House absent from all meetings thereof, the House may declare his seat vacant.  Other disqualifications being, acceptance of a office of profit, is of unsound mind, is undischarged insolvent or is disqualified under the Tenth Schedule.

The most relevant and important is disqualification under the Tenth Schedule and that whether Mr. Som Nath Chatterjee incurs disqualification by not resigning on the asking of C.P.I (M) the political party he belongs. He does not claim that he ever resigned from the party even though he had a chance to do so under the exemptions given in Clause 5 which reads “

“5. Exemption.—Notwithstanding anything contained in this Schedule, a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the people or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule,--

(a)     if he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party; or

(b)     if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office.”

Having not resigned under Clause 5, admittedly remaining party member till the trust vote, the cardinal question that needs scrutiny is, has he incurred disqualification under Paragraph 2 of the Tenth Schedule which needs closer scrutiny.

“2. Subject to the provisions of paragraph 4 and 5, a member of House belonging to a political party shall be disqualified for being a member of the House and

(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 or 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……”

From the bare reading of the paragraph if a member of the either House incurs disqualification if he votes in the House or abstains from voting against the decision and direction of the party or its authorized person, the whip or authority.

The Speaker or the Chairman under Article 100(1) “shall not vote in the first instance, but shall and exercise a casting vote in the House in the case of an equality of votes. Both ways, the Speaker has neither abstained from voting as he is specifically debarred from voting in between nor did he fail to exercise the casting vote as there was no occasion, the difference not warranting the casting vote as such he invites no disqualification.

Failure to comply with the directions of the party, if any, may infer disciplinary action from his party but no disqualification under the Tenth Schedule or any other provisions of the Constitution. Any interpretation to the contrary without reference to provision is likely to mislead the nation and tarnish the image of the person concerned.

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court. E-mail: jogindersingh_toor@yahoo.com]

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