Primer for Public on Disqualification Due to Defection

Image Credits: Hermann Mueller — Getty

By Sikander Hyaat Khan

EKNATH Shinde led BJP-Sena Rebels alliance took charge of the government in Maharashtra following the upheaval that saw the end of Maha Vikas Aghadi. The defection in Maharashtra is latest in a string of defections that have taken place in the recent past in Madhya Pradesh, Manipur, Goa, Arunachal Pradesh and Karnataka. This event has revived the discourse on the issue of defection in politics. In this context, it is imperative to take a closer look at defection and how it is situated in terms of the law of the country.

Defection: What and Why

As per the Cambridge English Dictionary, defection may be defined as the “act of leaving a country, political party, etc. to go to another one”. Therefore, in layman terms, defection may be referred to as the act of leaving one political party to join another. Different jurisdictions employ different terminologies for this act. Such terminologies inter alia include party switching and crossing the floor. While defection, understood simply, means leaving a party to join another, for the purposes of this column and discussion in Indian law, defection is referred to in the context of a member of the House. The term House denotes either House of the Legislature of a State or either House of the Parliament, in terms of Paragraph 1(a) of the Tenth Schedule of the Constitution. 

Research on parliamentary systems has recognized that personal incentives motivate defections from one party to another. G.C. Malhotra, in his treatise on defection law, points out that legislators from a party may be tempted to defect from their party to another one in return for appointments in the other party. In such a scenario, defection is able to provide votes necessary to form a new government. In the current context of defections, this observation holds true.

Malhotra’s research quantifies what he terms “the lure of office” by stating that in a period of 1967 and 1968 when defections became a common occurrence “out of 210 defecting legislators of various states, 116 were included in the Councils of Ministers which they helped to form by defections”.

While appointments are prima facie tangible and serve as evidence of incentive offered for defection, there may be other clandestine transactions such as offerings in cash or kind made by a political party to the defector/s. Such corruption is a mere speculation but not entirely unforeseeable.  

Reasons for defection cannot be put into watertight compartments. It is possible that defections occur on account of more than one overlapping factors. Defectors may have genuine concerns pertaining to party leadership. This may include aspects such accessibility to party leadership, effective mechanisms for redressal of grievances and freedom of expression and speech within the organization. This, in fact, was stated as one of the key reasons by the Shinde camp for parting with Uddhav’s Shiv Sena and the Maha Vikas Aghadi. 

Consequences of Defection 

Legislating to penalize the act of defection primarily stems from the rationale that defections undermine basic democratic principles such as representation and accountability. Moreover, defections leading to change in governments also adversely affect consistency in policy thereby leading to wastage of resources. 

According to P.M. Kamath (in his Politics of Defection in India in 1980s), “whenever a legislator elected on a party ticket or as an independent change his party affiliation or joins a party, he commits a breach of faith”. He has further stated, “In most elections, party identity has more influence on the minds of the electorate than the personal prestige of the candidate. In fairness to the electorate, a defector should be made to seek a fresh mandate from the individuals”.

In parliamentary democracies, parties are the bridge between voters and politicians. Stability in party memberships is what helps voters in identifying candidates of their choice and thereafter cast their votes. Defection violates this basic electoral pact and undermines the authority of a party-based system. 

Penalizing Defection and the Indian Position

In Kenneth Janda’s words (from his 2009 paper on defection), “banning parliamentary party defections, there would be less corruption, more party stability, and more meaningful party labels with less personalism in politics”.

In India, penalty for defection is provided for under the Tenth Schedule of the Constitution. As per sub paragraph 1 of Paragraph 2 of the Tenth Schedule a member of the House is liable to be disqualified for being a member of the House if he has voluntarily given up membership of political party to which he belongs or if he votes or abstains from voting contrary to the direction issued by the political party without obtaining prior permission of the party.

In terms of sub-paragraph 1 of Paragraph 4 of the Tenth Schedule, disqualification is not attracted in situations where the political party to which the member of the House belongs merges with another political party and the member/s claim that: – 

(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or 

(b) have not accepted the merger and opted to function as a separate group.

In terms of sub-paragraph 2, merger of the original political party of member of the House shall be deemed to have taken place only if two-thirds members have agreed to such merger. The Shinde camp finds itself immune to disqualification by virtue of this provision.

Glaring Loopholes

Temporal limit

Paragraph 7 of the Tenth Schedule bars the jurisdiction of courts in respect of matters related to disqualification of a member of the House under the Tenth Schedule. In terms of Paragraph 6, the adjudicating authority to make decisions as to disqualification on grounds of defection is the Speaker of the concerned House. By virtue of sub-paragraph 2, disqualification proceedings are deemed to proceedings in Parliament as per the meaning ascribed under Article 122 and proceedings in the Legislature of the State under Article 212. Therefore, deciding disqualification challenges lies within the exclusive jurisdiction of the Speaker of the concerned House. 

While laying down modalities in respect of deciding disqualification proceedings, the Tenth Schedule lacks in prescribing a temporal limit for deciding such proceedings. Lack of a time-based restriction enables misuse and exploitation of the Tenth Schedule. Disqualification challenges are withheld at the discretion of the Speaker making it a ‘veto’ in the hands of the Speaker.  In its recent judgment in Keisham Meghachandra Singh vs. Speaker, Manipur Legislative Assembly rendered in 2020, the Hon’ble Supreme Court of India opined that Speakers of the State Legislative Assemblies and Parliament must decide disqualification pleas within a period of three month except in extraordinary circumstances. 

A corollary question which then begs consideration is: what if the defector is moving to the party which has nominated the Speaker? In such an event, there exists a conflict of interest. In Keisham Meghachandra Singh itself, the Hon’ble Supreme Court has also suggested that disqualification proceedings be presided over by independent tribunals and not the Speaker. 

The final and most contentious issue considering defection in today’s context is that it so happens that most defectors are leaving other parties to join the party ruling at the center. A study conducted by the Association for Democratic Reforms revealed that nearly 45% of defecting MLAs who switched parties and contested elections again between 2016 and 2020 joined the BJP. An amendment to defection law is in the nature of a constitutional amendment and not a legislative amendment. The BJP has a majority in both Houses of the Parliament. Being a beneficiary of the recent defection ‘wave’, it is unlikely there would be any substantial progress anytime soon towards setting the ball in motion for amendment of the Tenth Schedule.

  • Views expressed in the article are the author’s own and do not necessarily represent the editorial stance of Kashmir Observer

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