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The Politics of Defection

Aaya Ram Gaya Ram: The Politics of Defection

The members of the Legislative Assembly indulged in multiple floor crossings which earned them the epithet, Aaya Ram Gaya Ram (I have come, I have gone). Defections have not been something new to the working of the Indian democracy.

The defections have taken place in other democracies too1 and will, probably continue to take place in all parliamentary democracies. In a sense, these are integral part of parliamentary democracy. What is new to the Indian defections is that they have been phenomenal, unprincipled, opportunistic and, at one time, posed a serious threat to the Indian democracy.[1]

In order to trace down the roots of defections in Indian scenario, it becomes quintessential to understand the history of the political parties in India.

Background
The modern democracies are essentially party democracies. In our contemporary society it is inconceivable to separate democracy from political parties. Such has been the modern growth of democracy that all those countries which claim or proclaim to be democratic, have more than one political party. One political party is considered to be the anti-thesis of democracy.

Post-independence
When India became free, democracy was obvious choice, and nobody paused even for a split-second for any other alternative. In fact, the entire freedom movement was an experiment in operating democracy.[2] The Congress under whose banner the most freedom struggles were fought and which ultimately won independence for India was not a political party. It was the entire spectrum of the national movement. At that time there was no alternative, viable or otherwise, to the Congress.

The Congress was not only the ruling party but it is also the birth place of almost all the opposition parties. As a result, the first three general elections, the congress more or less continued to enjoy luxurious majority. Even in the fourth general elections, the congress was able to retain its majority. Till the split in the Congress, the Congress was comfortable in the Lok Sabha, as no serious challenge to it was possible from any quarter. The problem started from the state level and the ‘politics of defection’ started.

The fourth general assembly elections

In the fourth general elections in sixteen out of the seventeen states8 that went to the polls, the Congress could secure majority only in half of the states and that too with depleted majority, and in some only with marginal majority. However, in the eight states in which the Congress was not in majority, there was no single political party which could claim absolute majority.

Each state assembly had its quota of independent MLAs.[3]
The opposition parties which failed to forge an alliance before the elections came together with the sole objective of wielding power; united by the bonds of Anti-Congressism. The political parties which wide political differences joined hands. It clearly indicated towards lack of ideological cohesion among the parties except for congress.

As a result, a series of defections and counter defection followed which resulted in huge unrest in political scenario. Many states like Haryana, West Bengal, Jharkhand witnessed a large number of defections and counter-defections.[4] The state of Bihar witnessed the worst case of political defection. Following is the table depicting the number of defections that took place between March 1967 and March 1970[5]:

The number of defections at this point became staggering. Innumerous defections led to unstable politics in various states. Presidential rule was imposed in the states of Bihar, Punjab, Haryana, Uttar Pradesh and West Bengal. The Indian politics was at the epitome of instability as the governments were at the mercy of independent candidates and party defectors who were bestowed upon with excessive powers.[6]

Framing of anti-defection laws

The increase in the number of defecting legislators between 1967 and 1969 necessitated the framing of an adequate anti-defection law. The mid-sixties witnessed numerous instances of elected representatives leaving the parties on whose ticket they were elected, to join the opposition parties. Hence, the need for an anti-defection law became increasingly urgent.

Based on the recommendations of the Y.B. Chavan Committee, the Constitution (Thirty-second Amendment) Bill, 1973 and the Constitution (Forty-eighth Amendment) Bill, 1979 were introduced in the Lok Sabha. However, while the former Bill lapsed due to dissolution of the Lok Sabha, the latter was opposed at the stage of introduction itself and was withdrawn by the leave of the House.

Finally, after the general elections in December 1984, the Constitution (Fifty-second Amendment) Bill was introduced in the Lok Sabha in January 1985. The object of this anti-defection law was to curb the evil of political defections motivated by the lure of office or other similar considerations that endanger the foundations of our democracy.

Tenth schedule of the constitution, 1985

Pursuant to the aforementioned ideal, the amendment inserted the Tenth Schedule into the Constitution in order to curb the evil of political defections. The 52nd Amendment Act, 1985 also amended Articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and the State Legislatures.

The purpose of the Tenth Schedule is to prevent the breach of faith of the electorate. Where a constituency returns a candidate to the Legislature, it does so on considerations based on the ideologies of the political party he represents and it is only logical that where the candidate, after being elected, leaves that party or acts contrary to its policies, he should be recalled for betrayal of the faith of the electorate. Essentially, the provisions in the Tenth Schedule give recognition to the role of political parties in the political process.

Constitutional validity of the 52nd constitutional amendment

The constitutional validity of the Constitution (Fifty-Second Amendment) Act, 1985 was challenged before the apex court in the case of Shri Kihota Hollohon vs Mr. Zachilhu And Others[7] in so far as it aimed at introducing the Tenth Schedule is destructive of the basic structure of the Constitution as violative of the fundamental principles of Parliamentary democracy, a basic feature of the Indian constitutionalism and is destructive of the freedom of speech, right to dissent and freedom of conscience.

The court clearly held that Freedom to speech and expression is not an absolute right but is subjected to reasonable restrictions.[8] A political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independently of the political party s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which is source of its very survival.[9] The restriction thereby are reasonable.

Further, the court relied upon the decision given in Jyoti Basu and Ors. v. Debi Ghosal and Ors[10] and held that the right to elect is neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they arc, and therefore, subject to statutory limitation.

Moreover, the court held that the amendment is non-violative of Art. 105 and 194. The court held that the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any Court for anything said or any vote given by him in Parliament.

It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor-crossing. Further, it was held that Art. 105(2) cannot be elevated to the status of Fundamental Rights and therefore even if there is a violation of the same, the schedule cannot be struck down.

Judicial Review
In Kihota Hollohon Case[11], the issue was whether paragraph 7 of the Schedule barring the jurisdiction of courts in cases of disqualification is constitutional. The Court said: The paragraph seeks to change the operation and effect of Articles 136, 226 and 227 of the Constitution which give the High Courts and Supreme Court jurisdiction in such cases. Any such provision is required to be ratified by state legislatures as per Article 368(2).

The paragraph was therefore held invalid as it had not been ratified.  The thrust of the point is that paragraph 7 brings about a change in the provisions of Chapter IV of Part V and Chapter V of Part VI of the Constitution and that, therefore, the amending Bill falls within proviso to article 368(2).[12]

In the present cases, though the amendment does not bring in any change directly in the language of articles 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those articles respecting matters falling under the Tenth Schedule. There is a change in the effect in articles 136, 226 and 227 within the meaning of clause (b) of the proviso to article 368(2). Paragraph 7, therefore, attracts the proviso and ratification was necessary.

For aforementioned reasons, the Supreme Court held [13]:
That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-article (2) of article 368 of the Constitution of India.

The court reinstated the judgement in Kesvananda Bharati v. Union of India[14] and regarded Judicial review as an integral part of the Basic structure of the constitution. Judiciary has the role to keep a check if miscarriage of justice has taken place and remove the arbitrariness.

Raja Ram Pal v The Hon’ble speaker, Lok Sabha[15]

The facts of Raja Ram Pal arose over nationally televised events. A T.V channel had conducted a sting operation on 12th December 2005 allegedly showing certain members of Parliament accepting bribes in order to the asking of questions in Parliament, an event that was quickly dubbed the ‘cash for queries’ scam. In response Parliament then expelled the said members on the ground that the conduct of the members was unethical and unbecoming of a Member of Parliament. The expelled MP’s challenged the constitutional validity of the expulsion before the Supreme Court.[16]

The circumstances that led to the decision in the Sub Committee on Judicial Accountability arose earlier, in 1991. In February of that year, 108 members of the Lok Sabha petitioned the speaker for an address to the President for the removal of Justice Ramaswamy, pursuant to which the Speaker constituted a Committee under the section 3 of the Judges Inquiry Act 1991 to investigate grounds on which the removal was prayed for. The Ninth Lok Sabha was subsequently dissolved and it was contended that the motion had on that account lapsed.

The courts therefore had to decide as to whether they could pronounce on whether the motion had lapsed or not, and as a corollary whether they had the authority to inquire into matters occurring within the four walls of Parliament.

 The judiciary can scrutinize the validity of legislative action where transgression of Fundamental Rights is concerned. -Y.K. Sabharwal, CJI

Powers of speaker/chairman as a deciding authority

The Speaker is looked upon as the true guardian of the traditions of parliamentary democracy. His unique position is illustrated by the fact that he is placed very high in the Warrant of Precedence in our country, standing next only to the President, the Vice-President and the Prime Minister.

Speaker decides the question of disqualification as a tribunal. The power conferred on the Speaker or Chairman to decide whether a member of either House of Parliament has incurred any disqualification does not make him a competent authority to remove such a member. The power exercised by the Speaker is of a judicial nature. Therefore, it is not appropriate for him to claim that the determinative jurisdiction under tenth Schedule is not a judicial power and comes within the non-justiciable legislative area. In the light of Art. 102 and 191 of the Constitution and the tenth Schedule, the Speaker acts in the tenth Schedule only when there is a claim of disqualification made before him under para 2.

It is held by the Supreme Court that the decision of the Speaker impugned is liable to be set aside in exercise of the power of judicial review. Notwithstanding the finality clause in para 6(1) or the non obstante clause in para 7, the decision of the Speaker under para 6 of tenth Schedule is subject to judicial review by the Supreme Court under article 136, but this is only on ground of jurisdictional errors.[17]

With respect to the duty of the court in such delicate situations, the Supreme Court has stated that it is most true, that this Court will not take jurisdiction if it should not: but it is equally true that it must take jurisdiction if it should. [18] The field of judicial review in respect of the orders passed by the Speaker under paragraph 6(1) is confined to breaches of the constitutional mandates, mala fides, non-compliance with rules of natural justice, colorable exercise of power based on extraneous and irrelevant considerations and no evidence.

Speaker: Partial or impartial?
Recently, many questions have been raised regarding partiality and impartiality of the speaker while implementing anti-defection due to the fact that he/she belongs to a particular party. The same was brought up in the Karnataka crisis earlier in 2019 where it was suggested that the anti-defection law should be implemented by an authority like Election Commission.[19]

The majority in Kihoto Holohan case[20] rejected this argument on the high office principle  i.e. it is expected that persons holding such high office, being vested with the power of adjudication, would act fairly and judiciously. The impartiality of the speaker while deciding the matters has to be presumed. In some cases, like Rajendra Singh Rana[21], Balachandra Jharkoli[22] and D Sudhakar[23] indicates that, they have largely been swayed by their party considerations while adjudicating upon the questions of disqualification of members in their respective Houses. However, it is essential to note that the finality to the orders that rests with the speaker is subjected to Judicial Review by the High Court and Supreme Court.

Further, the argument that the Election Commission would be impartial is another assumption, probably a reasonable one. Nonetheless, looking for another institution to decide on this process is to look for a bureaucratic solution to what is essentially a political problem.

Conclusion
Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.

The Tenth Schedule was inserted in the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.

The law applies to both Parliament and state assemblies. Kashyap worded the circumstances in following words:
Politics of power was pursued here with a unique single-minded devotion with almost all the actors in the drama acting most shamelessly. Bihar politics had always been crazy, cynical and murky but after the split it became grotesque and sordid. According to a newspaper editorial, nowhere was the record of politician  so obnoxious as in Bihar . They behaved  like children clamoring for lollipop.

Intent at the time of making the law

The Y.B. Chavan committee submitted its report on 7 January 1969.
The committee prefaced its report with the words:
 There can be no perfect or infallible deterrent for the kind of political defections that are rooted in political irresponsibility and opportunism and create instability, besides bringing the functioning of the democratic institutions in disrepute . It is hence clear the problem of defection cannot be dealt with legislative measures alone. The problem needs to be attacked on political, ethical and constitutional levels as well.

Principle of Inner democracy

In its 170th report in 1999, the Law Commission of India underscored the importance of intra-party democracy by arguing that a political party cannot be a dictatorship internally and democratic in its functioning outside . The parties should listen to the opinions of their members and have discussions on the same. This would make the parties democratic and at the same time would give the freedom of speech and expression to its members in real sense.

The distinction between ‘split’ and ‘defection

The Constitution (Forty-eighth Amendment) Bill also contained a novel provision. If twenty-five per cent or more members of a political party in a House resign en masse or disobey the party whip and form a new political party, or a separate group, they would not be dubbed as defectors. Thus, the distinction was being made between defection and split in a political party. The dissension by twenty-five per cent or more is not defection but split, and, therefore, was not to be caught by the penal provisions stipulated to be inserted in the Constitution. But dissension by twenty-four per cent was considered to be defection. It seems that so far as the electors- the people of India- are concerned both the proposals for meeting the menace of defection would be acceptable to them.

Many have questioned the rationale behind the fraction 1/3 as a line between defection and split. The court in Shri Kihota Hollohon vs Mr. Zachilhu And Others held that the courts have nothing else to go by except the legislative wisdom and, again, as Justice Holmes said, the Court has no practical criterion to go by except  what the crowd wanted . We find no substance in the attack on the statutory distinction between  defection  and split.

Is the tenth schedule violative of Art 19(1)(a) and 19(1)(b)?

The principal legal argument that was advanced was that the proposed law was violative of the fundamental right of freedom of speech and association guaranteed to every citizen by clauses (a) and (b) of article 19(1) of the Constitution. As under the Indian Constitution every individual is guaranteed to hold and express any view and to form or join any association or party in the advancement of the same. The freedom to hold and express views also includes the freedom to change one s view, and if one changes his views, he has also the freedom to join the association, party or group which helps one in the advancement of one’s views. There is no, and there cannot be rigidity in one s views. There are cases of eminent men changing their ideology radically.

There is nothing immoral, much less illegal, in it. It has happened that from extreme right one has moved to extreme left and vice versa. And, if this can happen with an individual, this can also happen with a legislator. If it is so, should it make any difference if a legislator changes his views or ideology, and joins a party or group which he feels would be more conductive to his new ideology? Should his freedom be stifled just because he happens to be a legislator?

The important question is: Have the defections in our legislature been, by and large, on account of convictions, on account of one s ideology undergoing genuine change on account of disillusionment, disenchantment or revelation, or the reasons are different? The core of the matter is that these unprincipled and opportunistic defections have taken place for anything but conviction or change in ideology. They are based either on sheer opportunism or pecuniary or power gains. This is why Aya Ram and Gaya Ram is the epithet applied by the people with contempt and disdain to the political defectors.

End-Notes:

  1. Diwan, P. (1979). AYA RAM GAYA RAM: THE POLITICS OF DEFECTION. Journal of the Indian Law Institute, 21(3), 291-312.
  2. Visweswaraiah, S. (1997). DEPLORABLE DEFECTIONS: IN SEARCH OF A PANACEA. Journal of the Indian Law Institute, 39(1), 47-66.
  3. The Election Commission of India (1968), Statistical Report on General Elections, 1967 to the Fourth Lok Sabha (PDF file). Retrieved from https://ceo.gujarat.gov.in/StatisticalInformationAll/LoksabhaElection/LE1967.pdf
  4. Hartman, Political Parties in India, Chapter I.
  5. Eldersveld, S. (1970). The 1967 Indian Election: Patterns of Party Regularity and Defection. Asian Survey, 10(11).
  6. Subhash C. Kashyap, PARLIAMENTARY PROCEDURE: LAW, PRIVILEGES, PRACTICE AND PRECEDENTS 779 (3rd edn., 2014).
  7. Shri Kihota Hollohon vs Mr. Zachilhu And Others, AIR 1993 SC 412.
  8. Bennett Coleman & Co. & Ors vs Union of India, 1973 AIR 106.
  9. Griffith and Ryle on  Parliament, Functions, Practice & Procedure  (1989 Edn. page 119).
  10. Jyoti Basu and Ors. v. Debi Ghosal and Ors, 1982 AIR 983.
  11. Supra.
  12. Shekhawat, V. (1994). JUDICIAL REVIEW IN INDIA: MAXIMS AND LIMITATIONS. The Indian Journal of Political Science, 55(2), 177-182.
  13. Relied upon: Sankari Prasad Singh Deo V. Union of India, (1952) I SCR 89 and Sajjan Singh V. State of Rajasthan, (1965) SCR 933.
  14. Kesvananda Bharati v. Union of India, AIR 1973 SC 146.
  15. Raja Ram Pal v The Hon’ble speaker, Lok Sabha, (2007) 3 SCC 184
  16. V. Shyam Kishore (2007) Parliamentary Privileges and the Judiciary – A Search for the Common Ground, Commonwealth Law Bulletin, 33:3, 443-460.
  17. Supra 7.
  18. Jagjit Singh v. State of Haryana, (2006) 11 SCC 1.
  19. Supra 7.
  20. (2007) 4 SCC 270.
  21. 2011 (6) SCALE 172.
  22. 2012 (1) SCALE 704

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