Constitutional law

An appraisal of Anti Defection Law

Right to Dissent under the Anti Defection Law

Srinivas 519

5th Semester

October 2011

“A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed.”

- Justice Charles Evans Hughes

Constitutional Background

One of the greatest achievements of the Indian democracy as compared to other countries which

gained independence the same time and which have more or less fallen into despotism has been the

fact that we continue to cherish a vibrant and dynamic democratic system. Nevertheless, the Indian

democracy has been plagued endlessly by various impediments, one of the most serious being the

evil of rampant political defection which has haunted Indian polity for over 30 years and has more

than often threatened to undermine the democratic character of the Indian parliamentary system.

The politics of defection has been the bane of the parliamentary system in India1 and Indian politics

has been a silent testimony to the process of defection right from the pre independence central

assembly days. Defections and splits in parties have always been a feature of Indian politics and in

the face of bare reality, every time the national parliament or state legislatures return a less-than-

certain outcome, allegations of horse trading along with "suitcases" drown out every other public

discourse. In the mad circus that follows, parties spirit their legislators away, hide them, suborn

them, and then triumphantly parade them before the world.

The issue first assumed serious significance in the face of continued political instability and horse

trading preceding and following the formation of coalition governments in several states as well as

the center after the fourth general election held in 1967. Thereafter it continued to draw serious

attention of the people and in many cases of ‘Operation alliance’ and ‘Operation topple’ between

1967 and 1973 as many as 16 state governments were toppled in quick succession with over 2,700

cases of defection taking place.

Etymologically, the word ‘defection’ is defined as an abandonment of duty, loyalty, principle, or

falling away from one’s religion or duty. In the present context, the political ramification of

‘defection’ can mean the crossing of the floor of a Legislature by a member while ‘Floor Crossing’ is

defined as changing one’s allegiance from one party to another.

1 M P JAIN, INDIAN CONSTITUTIONAL LAW, 48, (6th ed. 2006)

In essence, The formation of coalition governments which is an upshot of the democratically

inherent party system, as is known, has always been a marriage of convenience constituting of

heterogeneous elements seeing that political parties having no ideological similarity join together

to share power. The consequent dismissal of these coalition governments is also brought about by

the dissatisfied and disgruntled legislators who are possibly not accommodated as ministers or

given charge. As a result of their ever growing lust for power and positions, the legislators change

their party affiliation and jump over to other political parties, which though in a minority, cherish

the dream of forming a government on the strength of such synthetic majority explaining the

convoluted logic behind the vice of political defections. Political defection is seen to cause

government instability and is considered undemocratic as it essentially negates electoral verdict. In

fact the importance of party cohesion to parliamentary systems cannot be undermined by

avaricious political interests as “Cohesion and discipline matter in the daily running of parliaments.

The maintenance of a cohesive voting bloc inside a legislative body is a crucially important feature

of parliamentary life. Without the existence of a readily identifiable bloc of governing politicians,

the accountability of the executive to both legislatures and voters falls flat. It can then be seen, then,

as a necessary condition for the existence of a responsible government.”2

The genesis of the Anti Defection Law as we know today can be traced back to 4th General Elections

in 1967 in which no single party was able to secure the requisite majority. This gave way to what

was a fertile ground for a disturbing trend whereby legislators were constantly being lured away

from their political parties with a view to toppling existing governments and forming new ones

leaving behind a trail of political uncertainty bringing the politics of opportunism into the forefront.

Recognizing the menace of defection was spreading among political ranks, it became imperative to

enact a legislation that could effectively curb this rising tendency and the Parliament in an attempt

to curb the malady of defection led to the setting up of a Committee under the chairmanship of the

then Home Minister Y.B.Chavan. In pursuance of the recommendations of the committee, a

Constitution Amendment Bill was introduced in the Lok Sabha by the Government. The Bill

intended to render defectors ineligible for certain offices of profit for a certain period of time.

However, the Bill did not succeed because the Lok Sabha was dissolved and the Bill lapsed.

Subsequently, in 1985, the bill was revamped and re-introduced and the 10th Schedule to the Indian

Constitution popularly referred to as the ‘Anti-Defection Law’ was inserted by the 1985

2 Shaun Bowler, David Farrell and Richard Katz, 'Party Cohesion, Party Discipline, and Parliaments', Ohio State University Press, Columbus, 1999, p. 6. As cited in Sarah Miskin, Politician Overboard: Jumping the Party Ship, Information and Research Services, Research Paper No. 4,2002-03

Amendment to the Constitution with the intent to combat ‘the evil of political defections.’ 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.”3

The Constitution Fifty Second Amendment Act changed four Articles of the Constitution, viz 101(3)

(a), 102(2), 190(3) (a), 191(2), and added the Tenth Schedule. The Tenth Schedule is often referred

to as the anti-defection law and the legislation contains eight paragraphs - the first one deals with

definitions, the second states the provisions which disqualifies members from the membership of

Parliament or State Legislatures, the fourth states that disqualification is not going to apply in cases

of merger, the fifth sets out certain exemptions, the sixth and seventh states the person who would

be deciding the disputes regarding defections and barring jurisdiction of the Courts in respect of

questions on disqualification and the last paragraph contains provisions for the Speaker and the

Chairman to make rules in order to give effect to the provisions contained in the schedule.

Right to Dissent and Freedom of Expression under Anti Defection Law

The emergence of party based political structures as the central organizational pillar of contemporary democracies has had a rather peculiar impact on the functioning of democratic process. The credibility of parliamentary debate and democratic process has lately been undermined by repeated instances of abuse of law and parliamentary procedure as the threat to parliamentary democracy comes not from any place outside the institution but from the legislation which it has spawned. The Anti Defection law as it stands today while succeeding in many of its original objectives has however led to misinterpretation and undermining of the role of the legislator and the importance of dissent in a parliamentary form of democracy. The present form of the law effectively puts the Member of Parliament into the straight jacket of obedience and places the party ideology at higher pedestal over the views and opinions of the legislator by suppressing logical debate or dissent and effectively restricting the legislators from voicing the true concerns of the people which may oppose the position of the party and thereby endanger the very concept of democracy.

3 Jenna Narayan, Defect-Shun: Understanding Schedule X to the Constitution of India,

Freedom of expression is an essential and fundamental characteristic of the Indian constitution and

dialogue in the parliament is considered as fundamental tenet of the parliamentary democracy.

Political dissent is an essential precept for the effective functioning of any democracy. Political

dissent refers to any expression which conveys dissatisfaction with, or opposition to, the policies of

a body of government. The expression may take the form of violence or non violence –including

vocal disagreement, civil disobedience, demonstration, lobbying and use of violence. Peaceful

dissent is a mark of an open society where freedoms are protected4. Interestingly, the anti defection

law expressly prohibits the right to dissent which has over the years attracted the question of the

constitutionality of law.

Specifically , Paragraph 2(1) (a) and (b) provides the disqualifications incurred by a member and It

gives effect to this principle and sentiment by imposing a disqualification on a Member who votes

or abstains from voting contrary to "any directions" issued by the political party. This provision

also recognizes two exceptions; one, when the member obtains from the political party prior

permission to vote or abstain from voting, and the other, when the Member has voted but his action

has been condoned by the political party. Under Paragraph 2(1) (b) “dissent becomes defection”5

and it deals with a member who expresses his dissent from the stand of the political party to which

he belongs by voting or abstaining from voting in the House, contrary to the direction issued by the

political party. Under this provision, the member can be penalized with disqualification and there

have been quite a few instances of disqualification from the Parliament, under this law. For

instance, in 1991, eight Janata Dal MPs for siding with the Chandra Shekhar government; in 1993,

four MPs from a faction of the Janata Dal for backing the Narasimha Rao government; and, more

recently, three Bahujan Samaj Party MPs for defecting to the Samajwadi Party6.

In Kihoto Hollohan v. Zachillhu & Ors, it was contended that the provisions of the Tenth Schedule

constitute a ‘flagrant violation’ of those fundamental principles and values which are basic to the

sustenance of the Parliamentary democracy. It negates the freedom of speech, right to dissent and

freedom of conscience of our parliamentarians. It was also contended that the Tenth Schedule

impinges upon the rights or immunities under Article 105(2). 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

4 What is Political Dissent?5 Para 6 of Kihoto Hollohan v. Zachillhu & Ors AIR 1993 SC 4126 Barun Mitra, Anti- Defection: A Law Endangering Democracy, Mint, August 21st, 2008,

gray line’ and it is the Court’s duty to identify, ‘darken and deepen’ the demarcating line of

constitutionality7…

By a 3:2 majority, the Court held that the provisions of the Tenth Schedule were not violative of the

freedom of speech, vote and conscience of the members as Such provisions in the view of the Court

are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled

and unethical political defections. It said that the freedom of speech of a Member is not an absolute

freedom. The freedom is subject to the provisions of the Constitution and the rules and standing

orders regulating the Procedure of the House [Article 105(1) and Article 194(1)]8.

In spite of the majority decision given by the Supreme Court, the judges opined that at the same

time, the speaker’s order under the law disqualifying a member of the legislature on the ground of

defection is subject to judicial review. The court held, while rejecting the contention that the entire

Xth schedule, even after the exclusion of the contentious clauses, would be violative of the basic

structure of the constitution in so far as the provisions of the schedule affect the democratic rights

of the elected members of the legislatures and, therefore, of the principles of parliamentary

democracy, the majority of judges have ruled that the Speaker/Chairman acts as a ‘tribunal’

adjudicating upon the rights and obligations and his decision in a defection case would thus be open

to judicial review under articles 136, 226 and 227. It was also held that the parliamentary

privileges as guaranteed under Article 105 are not violated, as the provisions in the Tenth Schedule

do not result in any proceeding in any Court, thus safeguarding the guaranteed immunities.

The aim of such strict interpretation of what constitutes a defection, by the Court, may be to

prevent a politician from staying with a party while continually opposing its decisions for it is

believed that dissent within a party on the floor of the Legislature, shows lack of party discipline. As

parties cannot achieve their goals if politicians continually choose to pursue their independent

goals, a party where the members do not put up a united front in the Legislature may appear to the

electorate as a fractious and divided party and they may choose to refrain from voting for the

party as dissent from the party line may damage the party’s reputation with voters. Nonetheless, a

curb on the right to dissent is bound to have a serious consequence of curtailing a politician’s

freedom to exercise her or his judgment and act against party policies and procedures. In a party

comprised of a number of individuals, each with their own independent view and different sets of

priorities, which may differ from that of the party, while it may contribute to difficulty in

7 AIR 1993 SC 4128 Supra

maintaining cohesion in parties as one way for the political parties to maintain cohesion is through

party discipline, it is vital that there exists freedom of expression and right to dissent more so ever

in the apex governing body of the country. In this aspect, an alternative route must be charted out

as the law in its present form more or less forces the members of a particular party to be bound and

follow the direction of their party whips or face disqualification. The right to dissent in a

parliamentary democracy is of exceptional importance as it marks the line between the between a

democracy and a dictatorship and it is the cornerstone upon which the edifice of democracy is

based upon. This is more so relevant when it concerns the rights of very legislators who frame the

law and are responsible for the furtherance of democratic dialogue. In a nutshell, the closing

remarks of Justice Khanna in his dissenting judgment in the landmark Habeas Corpus Case where he

quotes Justice Charles Evans practically sums up the indispensable importance of the right to

dissent.

“A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future

day, when a later decision may possibly correct the error into which the dissenting Judge

believes the court to have been betrayed.”

In light of various political developments over the past decades, there has been a growing concern

over the constitutionality and effectiveness of the Anti Defection law, not just in terms of right to

dissent but other provisions of the law. In the aspect of right to dissent, The schedule suffers where

it does not provide for that rare occasion when considerations of conscience brings about a change

in members convictions and hence and honorable exit from the current party by virtue of his

crossing over to the other side. In essence, it does not admit of any right to dissent on the part of the

lawmakers as the schedule has confused the word dissent, i.e., defiance of party direction of whip

with that of defection, as it has provided for unseating of members by the party leadership for

voting against the party whip on the floor of the house. It is essential to note that in the UK, Canada,

Australia and New Zealand, which have similar parliamentary system, this defiance is not fraught

with any such penal consequences. Even otherwise, the provisions of curbing the evils of defection

are not free from loopholes and in some quarters it is believed that the Schedule has been

responsible for reinvigorated horse trading and consequent corrupt practices present in our body

polity. Practically, The Tenth Schedule in its current form does not contain any exhaustive

definition to facilitate interpretation of provisions relating to splits and mergers, the exact meaning

of legislature party, political party and original political party.

While The Anti-Defection Law was created to try and stop the members of the Parliament from

switching loyalties at a drop of the hat, and to stabilize polity, the law in its present form violates

one of the basic features of the Constitution - democracy. Parliamentary debate has thereby become

largely redundant. It also violates the principle of representative democracy by empowering the

party, and undermining the relationship between elected representatives and their constituents.

Thus, the evil of political defection across our body polity and its consequent deleterious effect on

our method of governance can only be strongly tackled if necessary constitutional reforms are

carried out and changes in attitudes towards this problem are achieved by effective mobilization of

support both at the national, regional and local level for the adoption of such mechanisms which

promote the long term objective of a strong and stable political governance.

References

Books

M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law"

Constitutional Law of India: Vol.3 : HM Seervai

Articles and Publications

Whether dissent equals defection in Indian Parliament? by Jeet Chaudhuri

The Anti-Defection Law – Intent and Impact, Background Note for the Conference on Effective

Legislatures, PRS Legislative Research

Laws Against Party Switching, Defecting, or Floor-Crossing in National Parliaments by

Kenneth Janda, Northwestern University

In Search of Party Cohesion: The Emergence of Anti-Defection Legislation in Israel and India

by Csaba Nikolenyi and Shaul Shenhav

‘Defect-Shun’: Understanding Schedule X to the Constitution of India by Jenna Narayan

Defection and Dissent in India : A Reappraisal of Anti-Defection Law by Dr Biswajit

Mohapatra

Anti-defection Law: Where the Shoe Pinches? by K S Venkatraman

Schedule X of Our Indian Constitution- A Myth or a Reality?

An Analysis of Disqualification of Members of Parliament by Contributed Paper

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