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Constitutional design of disqualification of members
Critically Analyze The Constitutional Design Of Disqualification Of Members
The Constitution of India lays down certain fundamental disqualifications which militate against an individual entering the Houses of Parliament. In light of the rapidly changing political, economic and social circumstances, the Constitution left any additional disqualification conditions to the collective wisdom of the Parliament. The basic disqualifications which the Constitution enumerates are contained in Article 102 and 191. These basic disqualifications are the same in both the Articles. They are:
Holding an office of profit under the government of India or the government of any state
Being of unsound mind
Being an undischarged insolvent
Not being a citizen of India or voluntarily acquiring the citizenship of a foreign state or being under the acknowledgement of the allegiance or adherence to a foreign state.
if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State
The Parliament, too, has supplemented these basic disqualifications by prescribing some further disqualifications in chapter III of part II of the 1951 Representation of People Act. This law states several circumstances which renders the membership of a person disqualified. These disqualifications are:
Disqualification on conviction for certain offences (Section 8)
Disqualification on ground of commission of corrupt practices (Section 8A)
Disqualification for dismissal from government service for corruption and disloyalty (Section 9)
Disqualification for contract with ‘appropriate government' (Section 9A)
Disqualification for failure to lodge account of election expenses (Section 10A)
The object of enacting Articles 102 and 191 is that a person who is elected to Parliament or a Legislature should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. The purpose is to cut out the misuse of official position to advance private benefit and to avert the likelihood of influencing the Government to promote personal advantage.
The Constitution also introduced a clause (2) to both the aforementioned Articles under the Constitution (Fifty-Second Amendment) Act 1985 and added a new Schedule (Tenth Schedule) to the Constitution. The provisions therein laid down the constitutional framework for disqualification of members on the grounds of defection.
This essay, aims to specifically analyse the provisions contained in the Tenth Schedule of the Constitution. Owing to the fact that the Supreme Court has been faced with challenges to the constitutional vires of the amendment, right from the time of the enactment of the amending Act, the issues pertaining to the Tenth Schedule tend to have a greater significance in the constitutional literature. Hence, this essay shall focus on the Tenth Schedule and the cases pertaining to the same.
Schedule X: Anti Defection Law
“Democracy and Free and Fair Election are inseparable twins. There is almost an inseparable umbilical cord joining them. In a democracy the little man - voter, has overwhelming importance and cannot be hijacked from the course of free and fair elections. His freedom to elect a candidate of his choice is the foundation of a free and fair election. But after getting elected, if the elected candidate deviates from the course of fairness and purity and becomes a “Purchasable Commodity” he not only betrays the electorate, but also pollutes the pure stream of democracy.”
The Indian Parliament and its various State Assemblies have, in the past 38 years, witnessed many changes of allegiance, defections and ‘dal badal' as it is colloquially known. There have been splits and formations of breakaway groups from time to time. In the mid-sixties, the country saw the introduction of a new jargon of “Aaya Ram Gaya Ram” in political parlance. The introduction of this jargon was heralded by a certain Haryana state legislator Gaya Lal, who changed parties three times in the course of one day. During this period, there were rampant defections by members of India's parliament and state assemblies in order to save or bring down governments. This, in turn, led to discourse amongst different political groups and parties in order to prevent this undesirable trend in politics. Opposition leaders expounded the proposal that Anti-Defective Legislative measures were imperative in putting an end to this quandary. However, it was under the government of Rajiv Gandhi that the promulgation of the Tenth Schedule introduced by the Constitution (Fifty-Second Amendment) Act 1985 occurred which made provisions as to the disqualification of members on the grounds of defection. The amendment echoed the abysmal political development in its Statement of Objects and Reasons stating:
“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.”
The Tenth Schedule provides in paragraph 2 (1) that a Member of Parliament or state legislature belonging to any political party shall be disqualified for continuing as such member if he
has voluntarily given up his membership of such political party; or
votes or abstains from voting in the House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised 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 15 days from the date of such voting or, leads to the restraint of party debate and dissent.
The opponents of this legislative move argued along the lines that the fundamental feature of an open and democratic society lies in the basic freedoms of association, opinion and expression. The very right to vote is implicit in this and if these votes cannot be altered by dispute or dissent, then the forum of the Parliament lies fallow. Following in the spirit of the aforementioned argument, The supreme court was faced with a challenge to the legislation in the case of Kihota Hollohan v. Zallichu And Ors. wherein one of the central issues pertained to whether the Tenth Schedule curtails the most fundamental privilege of members guaranteed under Articles 105 and 194 of the Constitution. It was argued that limiting the freedom of choice or binding the vote of a legislature may amount to tampering with the fundamentals of the Constitution and democratic polity. The court, however, was of the view that the provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. Then provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution. The Supreme Court, in Mayawati v. Markandeya Chand, went on to add
“The provisions are salutary and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections”
However, in countries such as U.K., Canada, Australia and New Zealand wherein a Parliamentary democracy similar to India prevails, defiance of party direction is not punished by unseating the member under consideration. Dissent is not considered a defection because a dissenting member or one who does not comply with a particular party directive has neither changed sides, nor crossed the floor and continues to be a member of his party.
Paragraph 3, in the original Schedule, made an exception in the case of defection of members on the ground of split in the party to which they belonged. A split occurs when a member or group of members of a party which are not less than one-third of the total members of such party in the lower House split, form a separate group and give up membership of such party. In a case such as this, the disqualification from the membership of the House vide paragraph 2 (1) does not apply. The Supreme Court justified the legislature's position, holding that in case of split in a party, the presumption is that it is caused by dissent which is to be valued while the defection is motivated by personal gain which is an evil to be prevented. Surjit Singh, Minhas, Speaker expressed that
“In my opinion, the word ‘split' connotes a vertical split in the party. It further suggests that a few fugitives of the party without effecting their ranks and file from top to bottom could not be deemed to be a separate party. The Political Party essentially is a voluntary association of electors. Every such association has bodies according to its Constitution such as Working Committee/ general house etc. in the event of a split schism must run through the entire fabric from one end to the other. Otherwise it would be considered to be a splinter group coming out of the Party.”
However, in truth, these splits became synonymous with the notion of personal ambitions. They occurred more because members in languishing parties wanted Ministership or new parties, or if they anticipated lack of support in the next election. In some instances, the ruling party had marginal majority and other parties hoped to form government if their number swells through defection. This provision was also criticised on the ground that it allowed bulk defections while declaring individual defections as illegal. Essentially the intended effect of paragraph 3 became - don't leave in single files, leave in rows. Where smaller parties were concerned, breaking away with the support of one-third of the members of the party was not difficult and defections remained unchecked. The case of Ravi Naik v Union of India drives a classic example of defection in a smaller party. As a consequence, demands were made from various quarters for strengthening the anti-defection law so as to achieve the desired result, leading to an amendment by the Constitution (Ninety First Amendment) Act 2003 to omit paragraph 3 altogether from the Tenth Schedule.
The provisions of the Tenth Schedule empower the Speaker or Chairman of the concerned House to decide on the question of disqualification of a member who defects. The defector also invites disqualification if he or she voluntarily gives up membership of his party or abstains from voting in violation of any direction that has been issued by the party. Even independent members invite disqualification if they join a political party. This relegates to the question of whether the Speaker should, in fact, be the final deciding authority. The working process under the Tenth Schedule is, after all, an extension of Parliamentary proceedings which should, in relation to the constitutional scheme, be an internal matter and not an advisory or legislative one. According to article 105, all activity in the House is seen as privileged. Control of the legislature is a matter of the House and nobody outside the House should be able to interfere. Conversely, some argued that it is not and should never be part of the duties of the exalted office of the presiding officer to be involved in highly political and controversial cases of conflicts of party interests and unhealthy manoeuvrings of power politics.The Supreme Court clarified this stance, holding that while an affirmative decision for disqualification on the part of the Chairman or Speaker may result in such member ceasing to be a member; it would not mean that the Chairman is the competent authority to remove the member. The result of the whole exercise is the consequence of application of constitutional provisions, and not of the decision of the Speaker or political preference.
The situation was such, until in Kihota Hollohan the constitutional validity of the Tenth Schedule of the Constitution introduced by the Constitution (Fifty-Second Amendment) Act, 1985, was beset. The Supreme Court while deciding the case, held that the Speaker while exercising powers and discharging functions under the Tenth Schedule acts as Tribunal adjudicating rights and obligations under the Tenth Schedule and his decisions in that capacity are amenable to judicial review.
The issue was, once again, thrashed out in the case of Mayawati v. Markandeya Chand wherein the court was faced with a challenge to the decision of the Speaker of the UP Legislative Assembly. The facts of the case are as follows, Twelve MLAs of the Bahujan Samaj Party crossed floor of the House in the Legislative Assembly of the State of Uttar Pradesh, and voted in favour of a motion of confidence moved by the Chief Minister of the State. Soon thereafter, these very twelve MLAs were made Ministers in the State Cabinet which was headed by erstwhile C.M. Kalyan Singh. The leader of the BSP, Mayavati alleged that the twelve MLAs who defected had incurred disqualification for membership of the Assembly and that the Speaker of the Assembly, by the impugned order, had absolved these MLAs from the disqualification conditions laid down in the Tenth Schedule. While the members maintained that the finding being a finding of fact is not amenable to challenge as it was rendered by the Speaker of the Assembly on whom alone the jurisdiction is conferred to determine such disputed fact, the court relied on Kihota Hollohan, and dismissed the appeal.
To put into present context, the Speaker of the Lok Sabha gave an Address at the Symposium on ‘Anti-Defection Law - Need for Review', during the Conference of Presiding Officers of Legislative Bodies in India in Chandigarh on 23 September 2008 wherein he stated:
“It is my considered view that it is desirable and indeed necessary, that the jurisdiction and authority to deal with matters of defection as provided in the Tenth Schedule need not continue to be exercised by the Presiding Officers and the power should be conferred on some other authority like a special Tribunal comprised of people well versed in law or on an authority like the Election Commission.
To my mind, the exercise of power and jurisdiction by the Presiding Officer of any House should not be subjected to such scrutiny, which considerably affects the status and the position of the Presiding Officers. With all respect to the Judiciary, whose jurisdiction cannot be denied, it will be fit and proper and indeed, to my mind, desirable that the Presiding Officers do not continue to be under such judicial scrutiny which in many cases has given rise to, in my opinion, avoidable tension between the two constitutional authorities.”
Although paragraph 6 says that the decision of the Speaker or Chairman “shall be final”, the Supreme Court has held that it would be subject to judicial review. In the North-eastern states, there has been a lot of trouble brewing wherein even the Executive has not honoured the Speaker's decision as final in a case of defection. In the original Schedule, the jurisdiction of courts was sought to be barred completely from cases of disqualification by paragraph 7. However, the Supreme Court rejected the argument that judicial review can be ousted and struck down this paragraph as unconstitutional in the Kihoti Hollohon case under the rules of basic structure, on the ground that it affected the powers of the Supreme Court and High Courts of judicial review under articles 136, 226 and 227 of the Constitution, in so far as there are certain infirmities or drawbacks based on constitutional violations, mala fides intentions, or non-compliance with rules of natural justice. It was following this decision that, Paragraph 7 of the Tenth Schedule of the Constitution was held to be ultra vires the Constitution.
The subsequent issue that came up was whether the effect of non-compliance invalidates Paragraph 7 alone and the other provisions which, by themselves, do not attract the proviso do not become invalid. It was argued that the other provisions, after the severance of Paragraph 7, become truncated and cannot stand independently. The Legislature would not have enacted the Tenth Schedule without Paragraph 7 which forms its heart and core. The Supreme Court, however, by a majority decision in that case upheld the validity of the other paragraphs holding them to be severable from the provisions of para 7 and also holding that the same did not require ratification by the states under article 368.
The final provision in this legislation gives the Speakers of the House to make rules for giving effect to any provision contained in the Schedule. In pursuance of this power, the states of Goa, Maharashtra, Gujarat, Haryana, Bihar, Kerala, Karnataka and others and also the Houses of the Parliament, both the Rajya Sabha and Lok Sabha have made rules in this regard. These Houses would be bound by the rules contained in the Schedules as also the ones that have been enacted specially for them.
The role of politics under the constitutional set up in India has undergone many chapters. The concept of party loyalty has weakened and ‘real politics' has become a spate of splits and defections in pursuit of selfish gains. Most political activity that takes place in India today transpires within the Tenth Schedule. It may be called a defective manual, implicit in the art of compliance. Today, nobody holds press conferences or parades. The concept of ‘resort politics' has arisen. Luxury resorts are hired, MPs are paid off and affidavits are signed.
It has ceased to matter what an MP as an individual thinks, the party leadership's requirements are of prime concern during a vote. The anti defection law renders a key pillar of our version of democracy futile - one must either buy the whole package offered by a political leader, or dissent in full and split away to avoid the risk of being disqualified. This has had several implications including disintegration of parties due to reluctance towards involvement in a deeper discourse and the lack of tolerance to coexistence with dissent. This has rendered the independents as the only legislators who can afford to vote without the threat of disqualification. Hence, in a tightly balanced legislature like ours their support is crucial. It is ironic that an individual defector should be penalised, while a group of defectors get away under the pretext of a party split.
Another concern is that the courts usually refuse to give mandamus orders to disqualify or set time limits. The adage is that what happens in the House stays in the House. Judicial decisions are not taken, leaving the Speaker to hold centre stage. The Speaker has the power to use tensions in House and keep members on the party's side by not deciding on the issues. Herein lies the main reason why the Tenth Schedule has not lived up to its intended assurance. The Speakers, who have the responsibility of discharging the vital judicial function of discerning whether a member has incurred disqualification, have for most part failed to live up to their high offices. Too often, Speakers regard themselves as spokespersons or hatchet men of the political party and the various orders of the Speakers which have been challenged before courts reveal absence of fairness and objectivity, betray a high degree of partisanship and a lack of understanding over the purpose of the Tenth Schedule. It is essential that whoever may be the authority to determine the question of disqualification, an appeal must be provided to the Supreme Court. There are many Speakers who are in favour of an independent tribunal.
“To my mind, the exercise of power and jurisdiction by the Presiding Officer of any House should not be subjected to such scrutiny, which considerably affects the status and the position of the Presiding Officers. With all respect to the Judiciary, whose jurisdiction cannot be denied, it will be fit and proper and indeed, to my mind, desirable that the Presiding Officers do not continue to be under such judicial scrutiny which in many cases has given rise to, in my opinion, avoidable tension between the two constitutional authorities”
The most crucial aspect that needs to be elevated in the Tenth Schedule is the right of an individual Member of Parliament to vote freely, without the risk of disqualification from the his or her party. Only then can a citizen of a democracy such as India vote for who he truly wants to hold accountable.
THE CONSTITUTION OF INDIA, 1950
THE REPRESENTATION OF THE PEOPLE ACT, 1951
THE CONSTITUTION (FIFTY-SECOND AMENDMENT) ACT, 1985
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Anti-Defection Law - Need for Review', Conference of Presiding Officers of Legislative Bodies in India in Chandigarh on 23 September 2008. Available online at http://speakerloksabha.nic.in/Speech/SpeechDetails.asp?SpeechId=278
Ashwin Mahesh, Subramaniam Vincent, Dissent isn't Defection, India Together, April, 2005. Available online at http://www.indiatogether.org/2005/apr/edt-dissent.htm
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Subhash C. Kashyap, Anti-Defection Law and Parliamentary Procedures, N.M. Tripathi Ltd., Bombay, 1993
U.N. Gupta, Indian Parliamentary Democracy, Volume I, Atlantic Publishers and Distributors, New Delhi, 2003
V.S. Rama Devi and S.K. Mendiratta , How India Votes : Election Laws, Practice and Procedure, Second ed, LexisNexis Butterworths, Delhi, 2006
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