- Apprentice Lawyer
The year 2019 was one of the most intriguing and dynamic years insofar as Indian politics is concerned. However, Maharashtra stole the show by taking its electorate for a tumultuous ride. A prima facie analysis of the whole episode may raise doubts regarding the sanctity of the resultant government.
The said issue was raised before the Supreme Court in a Special Leave Petition and the same was dismissed.
In this conundrum, an interesting question calls for deliberation viz. interplay between the Tenth Schedule to the Constitution (popularly known as the Anti-Defection Law) and pre-poll alliances.
A pre-poll alliance, unlike a coalition (which is a temporary post-poll arrangement), is an express agreement between two or more political parties involving seat sharing before the commencement of elections. It is an understanding whereby the alliance members share the total number of contestable seats amongst themselves and set up candidates in such a manner that no two alliance members set up candidates from the same constituency.
In such a synergic scenario, it becomes extremely crucial to realise that the voter while casting his/her vote is guided by the programme portrayed by the alliance as a whole. Thereafter, post-election, if due to any reason whatsoever, the pre-poll alliance breaks (as was the case in Maharashtra) and one of the member political parties forms a coalition government with other political parties, then the voter’s mandate for the pre-poll alliance to form the government is left in abeyance.
Additionally, in this scenario, any honest dissenting member who disagrees with this move will be faced with the issue of disqualification for defection.
The Tenth Schedule was challenged in Kihoto Hollohan v. Zachillhu. While upholding its validity, the Supreme Court observed that the object of the anti-defection law is “to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy.”
Under Paragraph 2(1) of the Tenth Schedule, a ‘member’ set up by a political party will be disqualified:
if he voluntarily gives up his membership of such political party; or
if he 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
Under Paragraph 2(2), an independent member is disqualified if he joins any political party.
When does the anti-defection law kick in?
In Rajendra Singh Rana v. Swami Prasad Maurya, the Supreme Court has held that it is the point of occurrence of the event leading to disqualification which is crucial for determining the point of disqualification. However, it is necessary to determine the point at which a successful candidate becomes a ‘member’ because it is from this point only that his actions can amount to defection.
Article 99 of the Constitution is titled “oath or affirmation by members”. It states that “every member of either House of Parliament shall” take an oath as prescribed in the Third Schedule. A careful perusal of Form III-B (oath for elected members) in the Third Schedule shows that the oath has to be taken by a person who is a ‘member’ and not a ‘candidate’. Thus, a combined reading of Article 99 and Form III-B suggests that a candidate is already a ‘member’ even before the oath. Similar provisions exist for state legislatures.
Certain provisions of the Representation of the People Act (RP Act), 1951 also give credence to the aforesaid construction. Section 73 (for Lok Sabha and Legislative Assemblies) of the RP Act mandates that the Election Commission has to publish “the names of the members elected” from various constituencies and it is upon such publication being made that the “House or Assembly shall be deemed to be duly constituted”.
This position has been affirmed by the Supreme Court in Rameshwar Prasad (VI) v. Union of India. While relying on a previous judgment in State of Rajasthan v. Union of India, the Supreme Court reaffirmed the position that the Assembly comes into existence even before its first sitting.
Thus, the aforesaid judgments and statutory provisions reinforce the construction that a successful candidate becomes a ‘member’ as soon as the notification under Section 71, 73 or 74 of the RP Act, as the case may be, is issued by the Election Commission. Thus, it is important to note that the instance such a notification is issued, the anti-defection law kicks in.
Resultantly, an honest dissenting member will be disqualified if s/he, expressly or impliedly, discloses the fact that s/he does not wish to move with their party in case of break-up of a pre-poll alliance. The plight of the member is such that s/he is not even left with the option to express dissent and thereafter resign.
The Supreme Court in Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, has held that “even if the resignation is tendered, the act resulting in disqualification arising prior to the resignation does not come to an end.”
Thus, unfortunately, such an elected member is left with no option but to follow the dictates of the party leadership, even if it is at the cost of alienating the political program which s/he and the party stood for.
Authority for deciding disqualification of a member before oath
Paragraph 6 of the Tenth Schedule designates the Chairman or the Speaker, as the case may be, of the concerned legislature as the decision-making authority on the question of defection by a member. However, the Chairman or Speaker is appointed only in the first session of the concerned house. When the offices of Speaker and Deputy-Speaker are vacant, a pro-tem Speaker is appointed for the Lok Sabha under Article 95 to perform all the duties of the Speaker. Customarily, the pro-tem Speaker has till date been appointed only for heading the first session of the Lok Sabha. However, under Article 95 s/he can be vested with the duty to decide disqualifications at the pre-oath stage.
Importance of a political party and its program.
In Kihoto Holohan (paras 13, 44), the Supreme Court observed,
“...a political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party.”
It was further held that when a member votes against the whip issued by his/her political party, he betrays the political programme with which his political party went to polls. As opposed to this scenario, which envisages alienation of a political party or its program by a member, the scenario under deliberation involves alienation of the program by the political party itself.
When a political party, which is a member of a pre-poll alliance, portrays a certain program through the alliance, a vote for a member set up by that political party implies a vote for the program portrayed by the alliance. After having ridden on the votes, which were cast by the electorate for the common program pitched by the pre-poll alliance, alienating the alliance would amount to playing fraud upon the mandate of the electorate.
Significance of a voter and his vote
In State of Rajasthan the Supreme Court held that no government can function efficiently and effectively in a democratic set up unless it enjoys the goodwill and support of the people. In Kihoto Holohan (paras 46, 48, 49), the Supreme Court observed that a “voter votes for a representative and for a government.”
Justice Arijit Pasayat, in his dissenting opinion in Rameshwar Prasad, held that:
“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 aforesaid principal is squarely applicable to a political party which is deviating from the course portrayed by it to the electors while campaigning.
Proposed solution with pros and cons
It is impractical to disqualify all members of a political party that breaks-up from a pre-poll alliance and alienates its program. Thus, in such a scenario, it is paramount that an honest dissenter belonging to the political party which flouted the pre-poll alliance be protected.
In Kihoto Holohan, the Supreme Court made a careful note of the fact that the defection law hurts even honest dissenters. However, when weighed against the menace of defection, an anti-defection law was necessary.
An amendment to the Tenth Schedule so as to declare such a member as independent is one way of protecting an honest dissenter. Declaration as an independent candidate will not only ensure his/her independence from the whip of his/her parent political party, but also grant him/her the opportunity to fulfil the program portrayed by him/her to the electorate.
However, this proposed provision can also be misused and has the potential to give birth to a new form of defection whereby political parties may try to approach elected members from other parties and try to persuade them into leaving the party and becoming independent.
This issue can be tackled by narrowly defining a pre-poll alliance to include only alliances involving seat sharing. Further, there is no risk of such a member joining another political party as the same would entail disqualification under Paragraph 2(2) of the Tenth Schedule.
In Jagjit Singh v. State of Haryana & Ors., the Supreme Court while widely interpreting the word ‘joins’ in Paragraph 2(2), held,
“The test is not whether he has fulfilled the formalities for joining a political party. The test is whether he has given up his independent character on which he was elected by the electorate.”
Thus, the Tenth Schedule as it stands and the jurisprudence governing independent candidates will ensure that the aforesaid member is under a constant check and is prevented from misusing the protection.
Not only does the anti-defection law, as it stands today, not cater to alliance politics, it also seems to have failed to attain the objective for which it was enacted. Anti-defection law was brought into existence with an aim to prevent political defections for lure of power or money. However, in most cases, the break-up of a pre-poll alliance will be triggered by these factors only.
The anti-defection law needs to evolve by way of amendments to cater to new political realities so as to prevent/punish members from resigning and joining hands with opposition mid-term and also to protect honest dissenters whenever they are subjected to the whims and fancies of their power-hungry leadership who completely alienate their party’s political programme in order to meet their personal goals.
Defections undermine the very basis of democracy. The jurisdiction of a Court is restricted to the four corners of a statute and there are limitations to the power of the Court to read down statutes. Hence, it is the legislature which has to take necessary steps. The most important aim of the anti-defection law is to ensure a stable government. However, it is clear from the cases of Maharashtra, Tamil Nadu, Karnataka and Madhya Pradesh, that the present anti-defection law is unable to meet the said objective.
The worst hit in this constitutional conundrum is the innocent voter. The following observation of the Supreme Court in Shrimanth Balasaheb Patil sums up the sorry state of affairs:
“…political parties are indulging in horse trading and corrupt practices, due to which the citizens are denied of stable governments. In these circumstances, Parliament is required to re-consider strengthening certain aspects of the Tenth Schedule, so that such undemocratic practices are discouraged.”
The author is an advocate practicing in the Delhi High Court and the Supreme Court.