Curing the Defects in the Anti-Defection Law – Adv. Nikhil Balan

 India is a vibrant democracy, ever growing and ever decentralising. This evolutionary democratic process, particularly evident from the decentralisation reforms initiated in the 1990s and the creation of smaller states and new states has ensured political justice to the citizens of India. With such developments, consequent and dramatic changes have taken place in the political arena as well.

While in 1950, there were only 14 national parties and two dozen regional parties, as it stands today we are having a 250 plus regional party and less than a dozen national party system. As vibrant and dynamic as we may call it, it has had several unintended consequence as well. With more parties in power, coalition government making has become the norm of the day and political instability; it’s possible result. The instability as witnessed in Delhi in 2014, the failure in government formation in Jammu and Kashmir, the crisis in Arunachal Pradesh and Uttarakhand, all of it suggests that such political instability has become a common state of affairs. The succession of such cases of instability only hints that these situations are likely to be more frequent than any other time.

Among these identifiable  vulnerabilities of governmental instabilities, the most visible and dangerous one to the democratic set up of the nation is invariably the political defections.

Defection has been a bane of the parliamentary system. It is often used as an undemocratic political tool to manoeuvre a majority in the House, especially when the Government is formed through a coalition of parties. It topples the citizen verdict and creates an air of uncertainty in the governance. While political justice had echoed well into our Constitution, governmental stability has not made enough inroads into our legislative bodies.

To contain this evil of defection, the Parliament passed the 52 nd Constitutional Amendment Act in 1985, by amending Article 101 (3) (a), 102 (2), 190 (3), and 191 (2) and adding Tenth Schedule to the Constitution. Under the law, a person is disqualified to be a member of either House of the Parliament if he/she is so disqualified under the Tenth Schedule. Under para 6 of the Tenth Schedule, the final authority to take a decision on the disqualification of a member of the House vests with the Chairman or the Speaker of the House.

The law was nothing but a result of the necessity to check the growing trend of political disorder in the States. But, as instances have shown us, the law has stirred up more controversies than its ability in solving them. The unsavoury incidents that happened in Arunachal Pradesh and Uttarakhand show that the time is ripe for a review of the Anti-Defection law so that the lacunae are removed and the problems effectively rooted out from the system. While the intent of the Anti-Defection law stands good, the means to the ends has been marred with structural defects, the most prominent of it being the power given into the hands of the Speaker to disqualify the members of the House.

The Role of the Speaker/ Chairman

The Constitution is an adroit admixture of checks and balances and only in few circumstances we have seen it conferring absolute power to a particular authority. The Speakers/ Chairmans power to disqualify a member based on Tenth Schedule of the Constitution is one such departure from the check and balance. The exclusions of the jurisdiction of the Court vide para 7 of Schedule X in respect of any matter connected with the disqualification of a member of the House was, however, corrected by the Honourable Supreme Court of India in the famous Kihoto Hollohan Case, wherein it was held that Speakers order under the law disqualifying a member on the ground of defection is subject to judicial review. The Court held that he Speaker hold the position of a Tribunal, adjudicating upon rights and obligations and his decision in the defection case is subject to judicial review” The grounds for such judicial review shall be “jurisdictional errors based on violation of constitutional mandate, mala fides, noncompliance with rules of natural justice and perversity”.

The Role of the Speaker, in cases of defections, is largely about ascertainment of the facts and to arrive at a rational, impartial and objectively assessed decision. This role of ascertaining facts is more akin to judiciary’s power to arrive at a decision. However, the same is done by the Courts or Tribunals only after exercising the principles of natural justice i..e audi alteram partem or an opportunity to hear. Hearing the defected member before disqualifying him, would be an appropriate step as this would add to objectivity and transparency in Speaker’s decision making. But having seldom done this while taking a decision on defection, the Speaker’s office has often been subjected to sharp criticism because of his affinity for the political party from the majority. Interestingly and ironically, the power conferred on him seems in direct contradiction to the question of disqualification of which he is in charge because his decisions can likely lead to floor tests and fall of the Government of which he is a member.

In instances, where a member defects from a smaller party to a bigger party and the Speaker belongs to the bigger party, an impartial adjudication is highly improbable. His decisions are likely to reflect a political expediency rather than transparency and objectivity. However, the Apex Court’s directives and order laying ethical standards to be followed by the Speaker in decision making has been given least regard when a turmoil situation arises. The difficulty has been that the Speaker have not always exercised his power of disqualification objectively and impartially.

To create more damage to the seat of the Speaker, his decisions has also invited the wrath of the Apex Court, particularly in two major situations. One in Manipur in 1993, when the Speaker of the House repeatedly refused to obey the Court by arguing that he was immune from the Court process. After initiating contempt proceedings against him, the Court had to direct the Central Government to produce the Speaker before the Court even by using minimum force against him, if necessary.

Another instance was when the Speaker from Meghalaya suspended the voting rights of five independent members before the House was moving for “no confidence motion” and then the Court had to intervene making itself revisit the law, thus costing time, expenses and most of all, situational crisis, purely man-made. Such disregard to rule of law and oblivious ignorance of constitutional mandate together with leading confrontation with the Apex Court surely undermines the mandate of the citizens and constitutes a threat to the democratic structure of the nation.

While Kihoto’s majority judgement has its importance in laying down highest ethical standards for the Office of Speaker, without undermining his power to disqualify, the lack of application of the same, makes the minority judgement highly significant in reviewing the law. It was the minority which was of the view that the Speaker’s office is dependent upon the majority in the House and therefore he does not satisfy the criteria of being an “independent adjudicatory authority” at times of decision making. Whether the power to disqualify should remain with the Speaker is necessarily a matter of thought and needs a thorough revision.

The Way Forward

The Speaker, a constitutional office, has always been a political office and therefore in cases of such crucial political floor tests, where it is expected of him to play an impartial role, given the circumstances of the situation, it is likely that he save the day of his political office rather than take the impartial decision.

It must be understood that the Speaker depends on for his tenure on the majority in the Legislature and placing before him the question of stability of the same Government is nothing less than a situation where you become the judge of your own cause. To quote James Madison, “No man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time.” To protect the integrity of the Office of the Speaker and to maintain the dignity of the House and most of all, and above all, to respect the mandate of the citizens who have voted them to power by standing in queue for hours facing the scorching heat, the decision-making authority needs to shift from the Speaker and be vested with an “appropriate authority”.

While, casting the duty over the overly burdened judiciary would be unfair and unjust to itself, the rightful authority in such situation of circumstances could be the Election Commission, which is not only independent but already has the power to exercise disqualification of MPs and MLAs under Article 103 and 192 of the Constitution, respectively. According to these Articles, the President in the case of Parliament and Governor in the case of State Assembly may refer the matter to the Election Commission. The scope for moving the power from the Speaker has become a pivotal matter in our objective to protect and confer political justice to the citizens.

At this juncture, I am reminded of Sir Edmund Burke’s statement that “Parliament is not a congress of ambassadors of various interests”, but a “deliberative body of free agents”. While the people voted the candidates to power, based on the various political program of the parties, the Government must make efforts to strike a balance between the members and political parties and thus to protect the freedom of the elected members to have precedence over the interest of the political parties.