Content downloaded/printed from HeinOnline

Sat Aug 10 02:51:07 2019

Citations:

Bluebook 20th ed.

K. T. Thomas, Anti-Defection Law, 3 NUALS L.J. 1, 7 (2009).

APA 6th ed.

Thomas, K. K. (2009). Anti-Defection Law. NUALS Law Journal, 3, 1-7.

Chicago 7th ed.

K. T. Thomas, "Anti-Defection Law," NUALS Law Journal 3 (2009): 1-7

McGill Guide 9th ed.

K T Thomas, "Anti-Defection Law" (2009) 3 NUALS LJ 1.

MLA 8th ed.

Thomas, K. T. "Anti-Defection Law." NUALS Law Journal, 3, 2009, pp. 1-7. HeinOnline.

OSCOLA 4th ed.

K T Thomas, 'Anti-Defection Law' (2009) 3 NUALS LJ 1

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement availablehttps://heinonline.org/HOL/License
at
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information

Use QR Code reader to send PDF to your smartphone or tablet device

 ANTI-DEFECTION LAW

-Justice K. T. Thomas'

When the Constitution of India came into force in 1950, there

was no provision in it to deal with defection of MPs and MLAs. This was
because, no mention of political parties was made in the original
Constitution of India, though the manner in which the Prime Minister of
India was to be appointed by the President had been delineated. Anyone,
whom the President prefers would be appointed as Prime Minister, he
need not even be a Member of Parliament. It is enough that he attains
membership of one of the Houses within six months. The other members
of the Cabinet called Council of Ministers can be appointed by the
President only if and when the Prime Minister advises. From then on, the
President can act only on the advice of the Council of Ministers. The
Supreme Court said in "Samsher Singh"' (1974.2 SCC 831) case that
Indian President cannot do any official act without the advice of the
council of Ministers. The Prime Minister, in turn, must be a person
having the confidence of the parliament. Hence, by convention, the
President used to choose a person as Prime Minister who has the support
of majority of the House of the People. These were the broad features for
keeping up the balance of Constitutional powers between the President
and the Prime Minister and the council of ministers.

There is no scope for the defection of MPs or MLAs in a

situation where there is no political party. The role of political parties
became relevant only to enable the Prime Minister to have supporters in
the Parliament for implementing the programme or the agenda of
governance propounded by him. Even when the Representation of
Peoples Act was passed in 1951 to enable holding of the first general
elections, no mention was made in that Act about political parties. It was
38 years later when the above Act was amended in 1989; the word
'political party' was added by including part 4A in the Act to insert
Section 29A. Definition of political party is given in that Act as

Former Judge, Supreme Court of India.

SanisherSingh v. State of Punjab (1974) 2 SCC 83 1.
2 NUALS L. J. [3] (2009)

"an associationor body of individual citizens of India registeredwith

the election comnission as a politicalparty"

One of the founding pillars of our Constitution is democracy. We

have adopted parliamentary democracy as the scheme of our government.
In such a set up, political party became a necessity. for practical
implementation of the provisions of the Constitution regarding formation
of Government. In most of the countries following Parliamentary
democracy, political parties became the pillars for forming the goal.

This makes me ask the question - What is democracy? From the

definition given by Abraham Lincoln at the world famous speech
delivered by him at Gettysburg, we have been told that

"Democracyis the government of the people by the people and

for the people"

This definition gained widest approval. But it is only a utopian

definition. Many -political philosophers made different definitions
thereafter. But the one definition which impressed me most has been
given by C. Rajagopalachary, one of the greatest political thinkers of this
country (the first Governor General of India). He said 'democracy is a
government by discussion'. People's representatives are allowed to put
forward different points of view and to give expression to varying views
and thoughts. They are the essentials needed to achieve the healthy
purpose in functioning parliamentary democracy. In. other words, where
there is no free discussion there is no democracy.

In our democracy, as in Britain, the election is fought mainly

between candidates belonging to different political parties. Even outside,
elections are fought when some candidates used to form panel for facing
voters. When the final results of election are declared, one political party
may win by securing larger members in the House than the other. When
candidates of a political party won more than 50% of the total seats, we
say that the said political party won the elections.

What happens when some elected persons join the other party?
The party which won an election becomes minority, whereas the party
which lost the election becomes the majority. The party which lost will
form the government and the party which won the election is then asked
to sit in opposition. This is a negation of people's verdict. That apart, this
involves political morality and ethics. Election is a mode by which voters
ANTI-DEFECTION LAWS 3

express their approval of the programmes of one party. ft would. be a

betrayal of the people's approval when you change your loyalty from the
political party on whose ticket you got elected. It is a breach of trust and
seduction of the confidence reposed in him by the voters. This betrayal or
seduction if allowed to govern the field would become the opposite of
democracy itself.

The history of defections did not start in India.. In England, MPs

tauht the world thaf defections can be engineered for office offered. In
India for two purposes defections are engineered. One was for the
advartage 'of the defector himself as he, would be personally benefited
either with a berth in the ministry or with the Chairmanship of some
Corporation or with huge money. Secondly, defection is done by some
MPs or MLAs to help the political party to form the government, as
otherwise the only- alternative is to dissolve the parliament or the
assembly.

There was a time when defections were engineered even by the

top leaders of political parties. Indira Gandhi was an expert in securing
defections in parliament and also in states, e.g. in Haryana, in Karnataka
and in U.P, a large chunk of MLAs could be changed from one party to
the other duing her time. Between the first general elections and the 4th
general elections 542 elected members defected from one party ,to the
other. During a particular period 116 out of 210 defectors were made
Ministers. During another short span of 12 months 438 defectionswere
reported.

The defected MP. or MLA was regarded as a characterless

politician. People developed hatred. towards the defectors.; Voters
became disheartened because persons for whose victory they worked and
succeeded crossed over to the side against Which they worked. The time
reached when people became disgusted with the-system which permits
the elected leaders to dangle after pelfs and.berths. It was in the above
background that the idea came to the forefront to evolve Constitutional
embargo against, defections. The efforts started in 1967, but it went on
without registering any success. When Rajiv Gandhi, secured a land-
slide victory 'in the 1985 elections, the Constitution was amended with
the 5 2 nd amendment which a clause each was added to ticle 1(2
and 192' of the Constitution for the purpose of incorporating the Tenth
4 NUALS L. J. [3] (2009)

Schedule to the Constitution which became the Magna Carta of the law
of defection.
The salient features of this anti defection law were these: (i) If a
member has voluntarily given up membership of his political party or if
he votes or abstains from voting contrary to a direction issued by his
political party, he shall be disqualified for being a member of the House
(ii) The members who vote against their party whip would amount to one
third of the total strength of the legislative party the defection then was
called "split" in the party and then those defectors will not suffer
disqualification. (iii) The question whether a member has acquired
disqualification will be decided by the Speaker and his decision will be
final. (iv) No court shall have jurisdiction to deal with any question
relating to defection.
After the law of defection was so incorporated in the
Constitution, some developments took place, which had great impact on
this law. The first development happened when somebody challenged the
constitutional validity of this law which finally reached the Supreme
Court for consideration. A bench of five judges heard it and rendered a
decision which became the land mark decision on this law it is called
"Kihoto Hollohan v. Zachillihu2 " reported in 1992 SCR (1) page 686 The
Supreme Court held that the Clause which debarred courts from dealing
with the questions of defection is invalid because it was not ratified by
one half of the legislative assemblies, as required in Article 368(2) of the
Constitution. However, the Supreme Court upheld the clause stating
about the finality of Speaker's decision, but said that this decision is
subject to the constitutional remedies provided in Article 136, 226 and
227 of the Constitution. This is the premise that the Speaker is
discharging a judicial function. The third is that even Supreme Court
cannot interfere with the decision of the Speaker unless the decision is in
violation of constitutional mandates or violation of the rules of natural
justice or vitiated by malafides or perversity.
The second development happened when Mayavati's party
(Behujan Samaj Party) secured 67 MLAs in UP Assembly. She became
Chief Minister with the support of BJP on the understanding that after a
term she would vacate for Kalyan Singh of the BJP. Later she vacated
and Kalyan Singh became Chief Minister with the support of Mayavati's

2Kihoto Hollohan v. Zachillihu 1992 SCR (1) 686.

ANTI-DEFECTION LAWS 5

BSP. After some time, Mayavati withdrew the support but 12 MLAs of
the BSP defected and supported Kalyan Singh government. Mayavati
then filed a petition to the Speaker of the Assembly pleading to
disqualify the 12 MLAs on the ground that they violated the whip isued
by her. The Speaker who belonged to BJP did not take a decision for a
long time. Mayavati approached the Supreme Court and a direction was
issued to the Speaker to take a decision. In the decision so taken the
Sneaker found that initially 26 MLAs of BSP party defected though
finally only 12 remained to support Kalyan Singh as the remaining went
back to the original BSP. Those remaining MLAs filed individual
affidavits to the Speaker that they never, at any time, joined the defectors
group. So Mayavati approached the Supreme Court again in challenge of
the decision of the Speaker. This was heard by a bench of three judges
headed by the Chief Justice of India. I was also a Judge of that bench.
Justice Srinivasan wrote a judgment that Speaker's decision was final of
facts and could not be interfered with. But I disagreed. According to me
the Speaker could not subvert the law of arithmetics by holding that 12
out of 67 would constitute 1/ P 3 for making a split. I also said that
Speaker's decision hinged on perversity since he ignored the affidavits of
14 MLAs who asserted that they never defected at all and even the
petitioner Mayavati had no case that those deponents or affidavits were
in the category of defectors. I therefore, declared in my judgment that 13
MIAs who defected were disqualified to continue as MLAs. When the
opinion of justice Srinivasan and mine became so glaringly at variance,
the Chief Justice of India should have joined with one of us or written a
different judgment. Instead of that he only said that the matter must be
heard by a larger bench. Our Judgments are reported in 1998(7) SCC
517.3
The above opinion of Chief Justice of India created a legal
conundrum because, the then Chief Justice (Mr. Justice Punchi) retired on
the same day after pronouncing the judgment. The Registry of the
Supreme Court found it difficult to place the case before a larger bench in
the absence of a judicial order of the bench. The successor CJI (Dr. A.S.
Anand) was in a difficult situation to solve the imbroglio. However, the
case became infractuous by lapse of time.
The third development took place in 2003 when Parliament

3
Mayawati v. Markandeya Chand & others 1998(7) SCC 517.
6 N'UALS L. J. [3] (2009)

passed the 92nd artendment to the Coihstitution. By that amendment, the

clause in the Tenth Schedule (which recognised a split when 1/3rd
legislators defected) was deleted. So the position as on today is this: (I)
Any Mebter of Parliament of Assembly violating the whip of.his party
is liable to be disqualified from continuing as member (ii) The Speaker
is the authority to decide when there is dispute on that aspect (iii) The
decision of the Spedker is final but the High Court or the Supreme Court
can interfere'if the'decision is vitiated by malafides or perversity or
violation of principles of natural justice or Conistitutional mandates.

Now. the- question is, should the Anti Defection, Law be mpdified
further? In my view the law requires further modification. No doubt the
present law curbs the chameleon habits involving political and ethical
immorality of defection to a great extent. ]ut would it protect the
foundation of Parliamentqry democracy? Let me ponder over it.

You all know that there are two wings for a political patty in a
Parliamentary Democracy. One wing controlled by the party bosses
titled either as President or as General Secretary or as the Executive
Committee or as Polit bureau central committee in different parties. The
othbr is a legislature party cbnsistirig of th6 representatives elected by
voters on the party tickets based on adult franchise. At present, the stark
reality is that the legislature party has no role irf evolving any decision
which might' go to the Parliament or Assembly, including decisions
concerning legislation. Their only role is t6 obey the diriectiVes of the'
bosses of 'their political party. In other words, people's 'representatives
are made subordinates of party manigers in their parliamentary'
exercises. Before the party bosses issue the" 'vhip they are not govetned
by a condition that the matter should have been discussed in the
legislature party for ascertaining the majority view of .the legislature
party. 'According to.,me this will destroy, the core of parliamentary
democracy and would create party plutocracy.

We may look ai it from ahother angle. When parliament passes a

liw we call it the Act of Parliament. Is it really the reflection of the free
will of patliamentarians? Is' it not, in effect, only the'reflection of the'
dictate the top coterie of the political party? We must remember that i
India, some of the. parties are single person, oriepted. In, hqse parties the
members have only one right and that is to implicitly obey the directives
of his party supreme. The elected members of his party has noiroleeve
ANTI-DEFECTION LAWS - I 7

to express their conscience on a single 'legislative issue, but only the

servility task of lifting up his hand on the nod of his supreme boss. Still
%kecall the resultant legislation an Act of parliament or Act of the
legislature. It is in fact dictatorship coated by democratic cosmetic.

This can be remedied in two ways:

(1) Areas for issuing whip should be vivisected into three spheres:
(i) Whip can be issued as the political party desires in
respect of those Bills concerning financial and
administrative functions of the government
(ii) But the legislations brought before the Parliament or the
Assembly must have the backing of a pre-discussion in
the legislature party where the views of the majority of
the legislature party should be the base for issuing whip.

(iii) There are areas where no whip shall be issued at all e.g.
when parliament is exercising its constituent power for
amending the Constitution, when Parliament takes up
impeachment of persons holding high constitutional
offices like President, judges of the Supreme Court and
High Courts, Election Commission, Comptroller and
Auditor General of India, when Parliament is exercising
questions of supreme national importance like imposition
of emergency by suspending fundamental rights.