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Anti-Defection Law - Uttarakhand Case 2016 (Dissolution)

This paper objectively analyzes the legislation against defection considering its impact on legislative disagreement. The objective of this research paper is to check the constitutionality of Anti Defection Law in Uttarakhand’s case and its situation viz-a-viz Karnataka’s case of anti-defection law.

Introduction
Significantly following quite a few years, the reason and soul of the Anti-Defection law from 1985 was routinely disregarded by government officials. Electoral losses have reached unprecedented levels, making governance ridicule. All of these pose the question as to whether anti-defection law ought to be looked at.

In 1985, after the homicide of his better half and late PM, India Gandhi, it was Prime Minister Rajiv Gandhi who presented an Anti-Defection Act in parliament not long after he came to control with a dominant part in 1984. The primary motivation behind the daring activity was to stay away from the abandonment of legislators who had the assurance of agency, cash or different things.

What is the Anti-Defection Law?
It applies to the Aaya Ram, Gaya Ram (frequent floor crossing by legislators) custom, a term made when, on one day and thrice in one month, 1967, Haryana MLA Gaya Lal absconded from his gathering twice in one day. The counter abandonment enactment (Anti-Defection Act) of Rajiv Gandhi was intended to anticipate these very misfortunes.

In 1985, in the Constitution, the tenth Schedule was embraced. It spreads out the component under which the Speaker of the house, endless supply of some other individual from the House, exclude individuals on grounds of absconding. The parliamentarian is discovered precluded on the off chance that he either energetically forsakes his gathering enrollment or resists the gathering administration's directions on a voting form. This guarantees an individual from parliament who challenges a gathering whip at any point may relinquish their situation in the House (counting declining and casting a ballot against). The law applies both to the places of parliament and government.

The Constitution (52nd Amendment) Act 1985 popularly known as the ‘Anti-Defection’ Law, was designed to prevent the scourge of defection of MPs from one political party to another & destabilizing governments in the process[1]. It disqualifies a member on the ground of defection laid down in the 10th Schedule. The provisions under Art. 191. Cl (1)(c) of Art. 102 refers to any law as to disqualification by or under any law made by parliament. The said expressions were wide enough to include amendments & hence Art 102(2) is constitutionally valid. As per 10th Schedule, the speaker must investigate matters of defection & his decision could be challenged u. Arts. 226 & 227 of the Constitution of India. The power to resolve such disputes vested in the Speaker is a Judicial Power. Para 6(1) of the schedule seeks to impart finality to the decision of speaker is valid.[2]

Research Questions:
  • Whether the Anti Defection Law in Uttarakhand was constitutional?
  • What is the situation between (position) Anti defection Law in Uttarakhand viz-a-viz Karnataka?
Research Methodology:
The researcher has used doctrinal method i.e. reference from available primary sources like Acts, Rules and Regulations to study the present questions in hand. The researcher has also taken reference from secondary sources like books, articles, and newspaper reports to understand the issue regarding the the topic of the research paper i.e. Uttarakhand Case- Anti-Defection Law.

Chapter I: Constitutionality of Uttarakhand case Anti Defection Law?
The facts of the case were: The political crisis in Uttarakhand started on 18th March 2016 when 9 Congress MLAs met Governor K.K. Paul for the dismissal of the Congress government was led by CM Harish Rawat who further met the Governor on 19th March and confirmed that he enjoyed a majority in the Uttarakhand Assembly. Then, the Governor gave 9 days till 28th March to the CM to prove his majority in Assembly. One of the nine rebel MLAs, Mr. Saket Bahuguna was barred for six years for anti-party activities. Both the parties, BJP & Congress went to the then President, Shri Pranab Mukherjee, in quest of resolving this crisis.

A BJP leader, Kailash Vijayvargiya requested the President to direct the Governor to dismiss the government immediately and asked to advance the floor test from 28th March to 22nd March which would determine most of the government. On 26th March, a video was presented that ostensibly showed the CM deliberating some figures with an individual alleged that it was a struggle to win back rebels to prove its majority. On 27th March, rebel MLAs were disqualified under Anti-Defection Law and a President’s rule was imposed in Uttarakhand, a day before the confidence vote.

According to the then Finance Minister, Shri Arun Jaitley, the speaker was murdering democracy by indulging in Horse-Trading and said that Congress plunged the State (Uttarakhand) into a serious constitutional crisis by continuing a Government that should have quit after the failure of the Appropriation Bill.[3]

The High Court of Uttarakhand declined to request a stay from the legislature. Justice Dhyani had said as per the interim order issued by the court a day earlier on Harish Rawat's writ petition challenging imposition of President's rule in the state they had already been given relief as they were being allowed to vote during a floor test in the state assembly despite being disqualified.

The court had also told them that although they have been allowed to vote in the Assembly during the floor test, their votes will not be treated on a par with the rest of the MLAs.

The Speaker had disqualified nine Congress MLAs under the anti-defection law hours after the imposition of Presidents rule in the state on March 27, a day before the state government was scheduled to go for a floor test in the state assembly. The imposition of President’s Rule on March 27, a day before the Governor ordered the floor test, was a ‘‘colorable exercise of power,’’ implying mala fide intention.[4]

As Justice U.C. Dhyani pointed out, this court, subject to the scrutiny of the speaker’s action on the principles of natural justice, therefore, holds that the ingredients of paragraph 2 (1) (a) of the Tenth Schedule of the Constitution are met against the petitioners. By their conduct, the judge held, ‘’it has been established that they have ‘voluntarily given up membership of their political party’, even if they have not become members of any other political party. Paragraph 2 in the Tenth Schedule – which is popularly known as the anti-defection law and was inserted through the 52nd amendment to the constitution in 1985 to combat the evil of political defections – lays down the grounds for disqualification.[5]

The purpose for which Anti-Defection law came into force wasn’t met and was undermining the very reason it was used for and promoted horse-trading which led to the extreme exposed situation of the the government which eventually will lead to political instability.[6]

The Supreme Court in Kihoto Hollohan v Zachillhu, justified the rules pertaining to disqualification, saying they do not violate the freedom of speech, freedom of vote and conscience as contended. It had only termed as side effects and fall out, the feeling of hurt that honest dissenters and conscientious objectors may feel but noted that these are the usual plus and minus of all areas of experimental legislation.[7]

Issue:
If the 10th schedule curtails the freedom of speech and expression and subverts the democratic rights of the elected members in parliament and state legislatures.

SC Judgement:
The 10th Schedule neither impinges upon the freedom of speech and expression nor subverts the democratic rights of elected members. The 10th Schedule is constitutionally valid.

Issue: Is granting finality to the decision of the Speaker or chairman is valid?
SC Judgement:
The provision is valid, however; HC and the SC can exercise judicial review under the constitution. But the judicial review shouldn’t cover any decision made by the chairman or speaker.
It was held that provision regarding disqualification on the ground of defection is constitutionally valid. It was observed that the provisions were salutary and were intended to strengthen the fabric of Indian Parliamentary Democracy by curbing unprincipled & unethical political defections. It further observed that it didn’t violate any rights of freedom under Art 105 and 194.[8]

The constitutionality of the law has been upheld by the SC in a 3:2 decision in Kihota’s case, but at the same time it has ruled that the speaker’s order under the law disqualifying a member on the ground of defection is subject to judicial review.[9]

In the case of Ravi S. Naik And Sanjay Bandekar vs Union Of India And Others, the Hon’ble Supreme Court explained that ‘voluntarily giving up a seat may mean more than giving it up on one’s own volition and need not necessarily mean resignation. A person may voluntarily give up his membership of a political party even though he has not rendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.[10]

The Supreme Court in the case of Rajendra Singh Rana v Swami Prasad Maurya, also ruled in 2007 that:
if a legislator requests the governor to call the opposition to form a government, that would also amount to voluntarily giving up his or her membership of the party. In the case of Uttarakhand too, the rebel Congress MLAs had accompanied the BJP MLAs to meet the governor and tell him which side of the fence they were on. In this case, the SC set aside the decision as unconstitutional because it was based on no evidence. [11]

It cannot be said that Article 105(2) is a source of immunity from the consequences of unprincipled floor-crossing. The para (2) of the 10th Schedule is valid.[12]

Chapter II: Uttarakhand case Anti defection Law viz-a-viz Karnataka case Anti Defection Law?
The Speaker used the phrase ‘volunteer participation willingly’ to describe misuses of power to suppress only moderate ways of dissent at the choice of political party leaders. One instance was the expulsion of 11 leaders by the Speaker of the Karnataka Legislative Assembly in 2010. Originally, the governor was informed by thirteen lawmakers that the B.S.-led government did not have confidence. Yedyurappa as Chief Minister believed that the working of the State was largely corrupt and nepotistic. They demanded an intervention and constitutional process from the governor.

The Governor has written to the Chief Minister urging him to demonstrate the House's confidence and vote. Through submitting a request to the Speaker, the Chief Minister tried to disqualify the thirteen members under the 10th Schedule.

On 07/10/2010, The President gave the appropriate lawmakers a legal notice and requested a reply by 10/10/2010. By 12/10/2010, the ground check should have been accomplished. Until 12/10/2010, the ground check was to be carried out. In its response, 11 lawmakers articulated categorical opposition only to the present government, headed by B.S. Yet Yedyurappa did not plan to bow to pressure for the B.J.P. group or to go over the floor crossing and yet stay the party's "disciplined troops." The Speaker subsequently disqualified the eleven legislators preaching that the act of writing to the letter stating lack of confidence in B.S. Yedyurappa amounted to 'voluntarily giving up membership' of the part. Nevertheless, two legislators replied that they had never submitted to the governor and that letters had not been signed by them.

The Speaker quickly moved to report the lawmaker before the floor tests and with this purpose the lawgiver has been granted less than three days to address the show cause notice, and the proof was also sent to the doors of the lawmaker's official residences in Bangalore, although they were well informed that the rules of natural justice had been violated. Whereas the CJ affirmed the Speaker's order, Justice N. Kumar perceived the dissent articulated by legislators to be a dissent within the party and that should not be disqualified under the 10th Schedule if they disobeyed the whip while during the floor test. Justice Kumar has also claimed that it would not be' voluntary to leave membership of the group' to show lack of confidence in a specific person as the CM.

Hence the Karnataka HC upheld the order of the Speaker. The SC held that expressing lack of confidence in the Government headed by B.S. Yedyurappa due to alleged corruption and nepotism did not amount to voluntarily giving up membership of the party, especially when the legislators have categorically stated that they shall continue to be loyal to the party[13]

The Supreme Court criticized the Speaker for his attempt to do so, strongly indicating that he intended to help the CM to pass the floor test by ensuring that the 11 lawmakers did not participate in the floor test. The Court also held that the Speaker was wrong in inferring that the request made to the Governor by the legislators to institute 'constitutional process' is the same as a request for facilitating imposition of President's Rule.[14]

In the case of G.Vishwanathan v. Honorable Speaker, Tamil Nadu Legislative Assembly, the SC held that:
after expulsion from a the party if a legislator goes on to join another party, it amounts to voluntary giving up of membership of the party[15]

The restriction it imposes upon the right of voting is another flaw in the anti-defection statute. As previously mentioned, paragraph 2 of the 10th Schedule notes that the abstention or vote against any direction given by the political party shall not constitute a reason for disqualification without prior approval or subsequent pardon.

In the case of Kihoto Hollohan v. Zachillhu, the Supreme Court acknowledged the paralytic impact that the 10th schedule had on right to vote. While paragraph 2 of the 10th Schedule has been affirmed by the Court, the Court has made it clear that the legislation is bound by order of that party only in matters relating to trust motion / no-trust motion and in matters fundamental to the rule of the party based on which it is approved by the electorate.[16]
The justification for this decision was that the electorate's confidence would otherwise be abused.[17]

Anti-defection legislation is the wrong solution to tackle bribery in legislative elections. It is valid, since acknowledging illicit pleasure, that ballots should not be cast by lawmakers. Nonetheless, if such lawmakers are engaging in unethical activity, the most effective solution will be to prosecute bribery and to eliminate protection from criminal prosecutions. But in the SC in P.V. Narasimha Rao v. State, where it was held that Article 105 (2) of the Constitution grants immunity to legislators from criminal prosecution though they voted in a particular manner after receiving illegal gratification for the same. [18]

Critical Analysis:
The Anti-Defection law has enabled the political parties to have a stronger grip on their members which many times has resulted in preventing them to vote for the lure of money of ministerial birth. It also provides stability to the government by preventing shifts of party allegiance and ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party. However, it also resulted into its unintended outcome i.e. the curtailing to a certain extent the role of MPs. It culminated into the absence of constructive debates on critical political issues. The whip has become all more powerful and has to be followed in all circumstances.

Reforms:
  1. The decision-making power of speaker needs review.
  2. The phrase voluntarily giving up membership is too vague and needs comprehensive revision.
  3. The political parties should limit the issuance of the whips when the govt. is in threat.[19]

Conclusion:
In the present anti-defection statute, there are other disadvantages and weaknesses, but the article's scope is limited to dissension or free expression and election. The tenth Amendment was revised to integrate the Supreme Court's revisions to anti-defection legislation into rulings such as Kihoto Hollohan, one of the most necessary reforms. Paragraph 2 shall be updated to reduce the party's authority to issue guidance on financial bills and demands for trust. It really is essential that the legislation is amended to preserve the autonomy of each representative who draws authority from the Constitution and is known as the electorate's guardian of interest. The rise and dominance of political parties ' leadership, and determining how a representative must vote and articulate himself, must be avoided. The adjustment to the tenth schedule is needed not only for the above-mentioned reasons but also to eliminate irregularities surrounding the definition or dismissal by a political party of a member, etc.

End-Notes:
  1. MP Jain, Indian Constitutional Law, Lexis Nexis, 8th ed, 1802
  2. DD Basu, Commentary on the Constitution of India, 8 vol, Lexis Nexis, 9th ed, 8342.
  3. PTI, Harish Rawat indulged in horse-trading: Jaitley, The Hindu, 12th September 2016.
  4. Kunwar Pranav Singh Champion And vs Speaker Legislative Assembly, AIR 1994 SC 1558
  5. Ibid as 2.
  6. FPJ Bureau, Uttarakhand crisis: Making Anti Defection Law redundant, Free Press Journal, April 1, 2016.
  7. Kihoto Hollohan v Zachillhu, 1992 SCR (1) 686
  8. Supra Note 2 at 8344.
  9. Supra Note 1 at 49
  10. Ravi S. Naik And Sanjay Bandekar vs Union Of India And Others, 1994 Supp (2) SCC 641, 1994 1 SCR 754
  11. Rajendra Singh Rana v Swami Prasad Maurya, 2007 4 SCC 270
  12. Dr. Subash C. Kashyap, Constitutional Law of India, 2 vol., Universals, 1050.
  13. Balachandra L Jarkiholi & ors v. B.S. Yedyurappa & ors, (2011) 10 SCR. 877.
  14. Ibid.
  15. G.Vishwanathan v. Honourable Speaker, Tamil Nadu Legislative Assembly, A.I.R. 1996 SC 1060
  16. Supra Note 7
  17. Supra Note 7.
  18. P.V. Narasimha Rao v. State, (1998) 4 SCC. 626
  19. Anti-Defection Law & 10th Schedule explained, GK Today, last Accessed 29th Oct,2019

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