Anti-defection law itself raises a number of issues and challenges. The first challenge is that whether anti-defection law violates freedom of speech and expression guaranteed under the Indian Constitution. This issue was addressed by Supreme Court in Kihoto Hollohan vs Zachilhu and others13 and held that the provisions do not subvert the democratic rights of elected members in Parliament and State Legislatures. It does not violate their conscience.

The Supreme Court held that provisions do not violate any right or freedom. Another issue is can paragraph 2(b) of the Tenth Schedule of Constitution be termed as violative of Article 105 of the Constitution and Punjab and Haryana High court held that right of member guaranteed under Article 105 is not an absolute one and has been made subject to the provisions of the Constitution and rules and standing orders regulating the procedure of Parliament.

The framers of the constitution never intended to confer absolute right of freedom of speech on a member of the Parliament and same can be regulated or curtailed by making any constitutional provisions, such as 52nd Amendment. Therefore, it cannot be termed as violative of Article 105.

According to Paragraph 6 of the Tenth Schedule Speaker’s or the Chairperson’s decision on questions of disqualification on ground of defection shall be final as all such proceedings shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212. Further, Paragraph 7 said, “Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.”

While upholding the Constitutional validity of the Tenth Schedule, a Constitution Bench of the Supreme Court in Kihoto Hollohan vs Zachillhu and Others declared paragraph 7 as unconstitutional. Supreme Court said the Speaker’s decision was subject to judicial review. The Supreme Court struck down this condition partly and held that no judicial intervention shall be made until the presiding officer gives his order.

However, the final decision can be appealed in the High Courts and Supreme Court. In Prakash Singh Badal v. Union of India,14 a Full Bench of the Punjab and Haryana High Court has struck down paragraph 7 of the Tenth Schedule as “invalid and still-born” on the ground that it affects the powers of the High Courts under article 226 and of the Supreme Court under article 136 of the Constitution and also because it has not been ratified by one half of the states as mandated by clause (2) of article 368 of the Constitution.

Further, the phrase ‘voluntarily giving up’ is not explained in the Schedule. In a case G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly15 question arose that – Whether a member can be said to voluntarily give up his membership of a party if he joins another party after being expelled by his old political party?

The court ruled that once a member is expelled, he is treated as an ‘unattached’ member in the house. However, he continues to be a member of the old party as per the Tenth Schedule. Some criticize its discrimination between an independent member and a nominated member is illogical. If the independent member joins a party, he is disqualified while nominated member is allowed to do the same. A nominated member would not be disqualified if he joins the party within the 1st 6 months of being nominated.

This provision is illogical and without any sound basis. Disqualification provision should be only imposed on Legislators when he votes against the stand taken by the party on those matters which are core to the party’s manifesto. On Other issues Legislators should be allowed to vote on the basis of their own viewpoint on the issue.

No difference has been put about these two terms. Dissent means using one owns opinion in case of voting on some topic in the house. According to Anti-Defection law, a member has to follow his party’s decision & he can’t use his own opinion while casting a vote. In short, this law makes the political party the boss & hence the high command culture flourishes.

Whether the Speaker has the power to review its own decision on disqualification of a member was answered in the case of Dr. Kashinath G Jhalmi Vs. Speaker, Goa Legislative Assembly, 16 the court held that the Speaker of a House does not have the power to review his own decisions, such power has not been provided for under the Schedule, and neither is implicit in the provisions. Constitution 52nd Amendment Act, 1985provided provisions related to antidefection in India. In this amendment, articles 101, 102, 190 and 191 were changed.

It laid down the process by which legislators may be disqualified on grounds of defection. The Constitution (52nd Amendment) Act 1985 suddenly introduced the provision that questions of disqualification on ground of defection shall be decided by chairmen and speakers of the legislative bodies. The intention was to have speedier adjudicative processes under the Tenth Schedule.

This provision was a subject matter of serious debate in both Houses of Parliament when the bill was being passed. In Ravi S, Nayak v. Union of India, 17 two issues were raised that whether the Speaker of a legislature is bound by the directions of a Court and Whether judicial review by courts extends to rules framed under the Tenth Schedule, it was held by the Hon’ble Apex Court that “the orders passed by a speaker are subject to judicial review and rules under the Tenth Schedule are procedural in nature. Any violation of those would be a procedural irregularity. Procedural irregularity is immune from judicial scrutiny.”

RECOMMENDATIONS OF VARIOUS COMMITTEES ON REFORMING THE ANTI-DEFECTION LAW

• DINESH GOSWAMI COMMITTEE ON ELECTORAL REFORMS (1990) ⎯ Disqualification should be limited to cases where
  • (a) a member voluntarily gives up the membership of his political party,
  • (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence. ⎯ The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
• HALIM COMMITTEE ON ANTI-DEFECTION LAW (1998) ⎯ The words ‘voluntarily giving up membership of a political party’ be comprehensively defined. ⎯ Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members. ⎯ The term political party should be defined clearly.
• LAW COMMISSION (170TH REPORT, 1999) ⎯ Provisions which exempt splits and mergers from disqualification to be deleted. ⎯ Pre-poll electoral fronts should be treated as political parties under anti-defection law. ⎯ Political parties should limit issuance of whips to instances only when the government is in danger.
• ELECTION COMMISSION ⎯ Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
• CONSTITUTION REVIEW COMMISSION (2002) ⎯ Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term. ⎯ The vote cast by a defector to topple a government should be treated as invalid.

What is Anti-defection Law in Detail?