Date: 21 Sept, 2020
by Ambica Sharma, TIPS, Dwarka
● “Aaya Ram Gaya Ram”, an expression which captures the intriguing political tale of Gaya Lal, is the oft used one line justification of the need for an Anti-Defection Law.
● In 1967, Gaya Lal, a Congress leader switched parties thrice within a span of days, from the Congress to the Janata Party, then back to Congress and then again to Janata.
● The anti-defection law presently in place under the 10th schedule to the Indian Constitution, seeks to injunct such political maneuvering. The law was proposed and spearheaded by Rajiv Gandhi and on 18th March 1985, the 52nd Amendment to the Constitution inserting the 10th Schedule came into force to disqualify defectors.
The law states that if an MP, MLA or MLC:
1. Votes or abstains from voting in disobedience of a party whip; or
2. Voluntarily gives up the membership of the member's political party;
then in these circumstances, such member(s) will be disqualified under Article 102(2) or 191(2), thereby vacating their seat as an MP, MLA or MLC by the effect of Article 101(3)(a) or 190(3)(a).
VOLUNTARILY GIVING UP MEMBERSHIP
● In Ravi S. Naik v. Union of India [1994 SCR (1) 754], the Supreme Court considered the disqualification of voluntarily giving up one's membership under Para 2(1)(a) of the 10th Schedule.
● The court observed that a person may voluntarily give up the membership of a political party even though such person has not offered his resignation from the association of that party.
● Hence, even in the absence of formal notice, we can draw from the conduct of a member that such member has voluntarily given up their membership of the party. An example of such conduct is joining a rival party as a member.
By way of the 91st Amendment to the Constitution, the disqualification under the purview of anti-defection law does not apply to a case where 2/3rd or more of the legislators of one party merges with another party.
POWER OF JUDICIAL REVIEW
● Under Para 6 to the 10th Schedule, the power to decide upon questions of disqualification is conferred on the Speaker or the Chairman. However, the Speaker or Chairperson is not immune from judicial review while exercising such power.
● In Kihoto Hollohan v. Zachillhu and Ors (1992 SCR (1) 686), the Supreme Court while considering the constitutional validity of the amendment inserting the 10th Sch., upheld the judicial power vested in the SC and HC to review the Presiding Officer's decision under the 10th Sch.
● This position was reaffirmed by the Supreme Court in cases including Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and Ors. [Appeal (Civil) 765 of 2007].
● In Rajendra, the SC invoked its power of judicial review to test the decision of the U.P. Speaker in recognising a split without considering an application for disqualification of the same members who put forth the position of a split.
● The SC held that it was the duty of the Speaker to hear such an application and that the decision to recognise a split and to postpone the consideration of the disqualification application was not a mere irregularity but was an illegality that went to the root of the matter.