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Section: B

Category: Article

Paper Code: RA-AM-01

Page Number: 273 - 281

Date of Publication: February 10, 2021

Citation: Apurva Mehta, Anti-Defection Law: A Conflict Between the Right to Dissent and the Integrity of the Political Party, 1, AIJACLA, 273, 273-281, (2021),

Details Of Author(s):

Apurva Mehta, B.A. LL.B. (Criminal Law Hons.), 5th Year, National University of Study and Research in Law, Ranchi

ABSTRACT The on-going political crisis in the several Indian States wherein the Legislators are crossing the floor according to their whims and fancies, manifests that the Anti-Defection Law has failed miserably to achieve its purpose of curbing the evil of defection. At the same time, the Constitution has also gifted the Legislators the indispensable feature of democracy, the right to dissent. However, it seems to be difficult that a monolithic government and the right to dissent can co-exist. This is the issue that has been analyzed in the research paper. It is concluded that both the features can go hand in hand although with some restriction in the right to dissent. Some suggestions have also been provided to harmonize both the aspects as both are wheels of the same vehicle that aids in the smooth and effective functioning of parliamentary democracy which is one of the basic features of the Constitution. KEYWORDS Anti-Defection Law, Democracy, Right to Dissent, Tenth Schedule, etc.

INTRODUCTION The on-going Rajasthan political crisis[1] manifests that the Anti-Defection Law has failed miserably to achieve its purpose of curbing the evil of defection. The other current examples include the Madhya Pradesh[2] and Karnataka's[3] political crisis where the Members of the Legislative Assembly switch parties according to their whims and fancies. The purpose of the Anti-Defection Law appears to be diluted when Members of the House cross floor in the disguise of the right to dissent. The Constitution (Fifty-second Amendment) Act, 1985 was introduced as the Tenth Schedule in the Constitution of India, wherein Paragraph 2(1) discusses the circumstances in which elected members can be disqualified on the grounds of voluntarily giving up of membership or when an MP or MLA opposes the directions of the party whip. Such MP or MLA is barred from holding the post of Minister until his term has expired or until he is re-elected.[4] While interpreting Paragraph 2(1), the Hon’ble Supreme Court has held that a Member who has even opposed its party is considered to have intentionally surrendered his membership.[5] Sharad Yadav of JD(U) is one of the recent instances that was disqualified for engaging in activities that were against the norms of the party.[6] In the on-going Rajasthan political crisis, Sachin Pilot was sacked from the position of Deputy Chief Minister of Rajasthan, as it was inferred from his conduct that he was not obeying the directions issued by the Indian National Congress Party. The decision came soon after the rebel legislator failed to attend the 2nd Congress Legislative Party meeting, which turned out to be the final nail in the coffin.[7] The issue which needs to be contemplated at this very moment is that does Sachin Pilot or for that matter, any other Member of the House, does he not have the right to dissent? Does his wisdom and conscience have no role in the formation of his political decisions? If the answer to these questions are in the affirmative then will that not simply render an elected MP/MLA a person without any conscience of his own on the floor of the House? However, at the same time, the significance of a monolithic party in the House cannot be overlooked as it is indispensable for the effective functioning of any Government. This brings us to the research question of this paper that in the conflict between the right to dissent and the integrity of the political party, which one should prevail. For concluding the conflicting claims, it is essential to examine the scope of both aspects. Hence, the objective of the research paper is to analyze both the pros and cons of the Anti-Defection Law i.e., whether the Anti-Defection Law is a boon for securing the integrity of the political party or whether it is a bane as it deprives the Member of the House the right to dissent. The objective also includes providing some suggestions to tackle the current political instability.

DESTRUCTION OF BASIC STRUCTURE OF THE CONSTITUTION: THE 'CHILLING EFFECT' OF MAKING INTRA-PARTY DISSENT TANTAMOUNT TO DEFECTION At the outset, let us examine whether Anti-defection law is a bane for depriving the Member of the House of his right to dissent. The right to dissent finds its existence in the Preamble to the Constitution of India in the form of liberty of thought, expression, belief, faith, and worship. Although the expression ‘liberty’ does not have fixed content and may not be easy to define, it is given content by Clauses (a) to (c) of Article 19(1).[8] These clauses guarantee the freedom of speech and expression;[9] freedom to assemble peaceably and without arms;[10] and the freedom to form associations or unions.[11] These three freedoms act as the vehicle through which dissent can be conveyed. violates parliamentary democracy The Hon’ble Supreme Court in Keshwananda Bharti[12] and Indira Gandhi[13] has settled beyond dispute that democracy is a basic feature of the Constitution. Parliamentary democracy anticipates that issues including the execution of the Governmental policies ought to be debated by the Member of the House. It might be possible that Members belonging to the same political party may likewise have contrasts of feeling on an issue. On some occasions, the perspectives communicated by the Individuals in the House have brought about generous adjustment, and even the withdrawal of the proposals under consideration. A Member may not agree with the views of his party because of his closely-held convictions or due to its exceptional ramifications for his constituents. freedom of speech is violated The attack against Paragraph 2(1) is that it is destroying the democratic setup as it denies the privilege of freedom of speech, the right to dissent, and the freedom of conscience which are the basic features of the Constitution. Also, in Parkash Singh Badal[14] Tewatia, J. opined that on literally interpreting the term ‘any direction’ mentioned in Paragraph 2(1)(b), the people's representative becomes a completely political party's delegate, which he is positively not. Moreover, Paragraph 2(1) infringes on the rights and immunities exercised by the Members of Parliament and Legislative Assembly under Articles 105(1) and 194(1) respectively. To support this contention, Edmund Burke in the famous speech to the Electors of Bristol, 1774 said: "It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. . . .But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or any set of men living. . . .Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion."[15] When a Member returns to the House of Parliament/Legislature, the party anticipates that he should be faithful. This is not completely unjustifiable for it is the cost of the party's name which made sure about his political race. However, the arsenal of terrorizing incorporates the danger that the Member may never get an opportunity to hold a ministerial office or go on abroad excursions supported by the party, or that he may be accounted for to his electorate which may wish to consider his conduct when the election takes place again.[16] In such a scenario, it is difficult to ascertain that the Member enjoys the Parliamentary advantage of the right to speak freely. His speech cannot be free in the event of such party threats. Also, Tewatia, J. in his dissenting judgment has recommended the perusing down of this provision as it would be destructive of the democratic setup.[17] Lord Shaw in Osborne[18] held that a provision that makes an elected Member liable for disqualification for unreservedly communicating his perspectives on issues of political conviction is without doubt restrictions on the ability to speak freely and are against public policy. Also, Mr. Palkhivala, an eminent jurist of India denounced the measures to prevent defection in the following terms: No greater insult can be imagined to Members of Parliament and the State legislatures than to tell them that once they become Members of a political party, apart from any question of the party Constitution and any disciplinary action the party may choose to take, the Constitution of India itself expects them to have no right to form judgment and no liberty to think for themselves, but they must become soulless and conscienceless entities who would be driven by their political party in whichever direction the party chooses to push them. . . .”[19] In case of conflict between the interest of the constituency and the political party, the former should be valued as a citizen in the capacity of an electorate who is supposed to be the political sovereign. Freedoms granted in Articles 105(1) and 194(1) to a great extent ascertain the security of electors without constraints. Yet, this would be a joke if, after this privilege which had been bestowed among the electors, the chosen representative is not himself free to act according to his wisdom and conscience.[20]

INTRA-PARTY DISSENT IS ANTITHESIS TO STABILITY OF A POLITICAL PARTY AND IS AMENABLE TO ANTI-DEFECTION LAW Let us now examine the other side of the coin whether the Anti-Defection Law is a boon for securing the integrity of the political party. Articles 102(1)(e) and 191(1)(e) enable Parliament to formulate provisions for disqualification of an MP or MLA. Since contesting an election is just a statutory right and not a fundamental right, the Parliament is empowered to force such limitations as it thinks about essential or reasonable in the public interest.[21] The passing of the Anti-defection Bill in both the Houses of the Parliament without a solitary vote of contradiction exhibits the exigency of the law to prevent defections. As a Member represents his whole constituency, it would fundamentally imply that the Members of the House speak to the desire of individuals and in that sense, the Anti-Defection Law is considered to have been formulated with the consistent will of the entire country. How then such a measure can be said to have the impact of disintegrating Parliamentary democracy. significance of the political parties For the effective functioning of the Parliament, political parties are indispensable.[22] To elucidate the importance of a political party, Professor Harold opined that the Member's task is to support the general directions of his party. If he has so nice a conscience that a scrupulous examination of mostly technical minutes is the necessary preamble to his vote, the correct remark upon his mentality is that he is not by disposition fit to be a Member the House.[23] The political stability of a party relies upon the mutual convictions and united actions of its Members. Any divided belief would result in impairing public confidence in it, which is its ultimate source of survival. Griffith and Ryle said: "Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. . .. Generally, Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by a party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy."[24] The Parliament/State Legislature is composed of parties and not individual Members. The Government is free to exercise control over its Members. To defy the Government would be equivalent to leaving the party.[25] If the Parliament/Legislature comprises only of independent members without any party or few small parties, then no Government could have been sustained. The electors, along these lines, do not give their vote to a candidate but generally to a party. The candidate’s electioneering is very less significant in comparison to the impact which his party makes on the brains of the electors. The Member is thus returned to support a party.[26] The constituents anticipate that the Member should adhere to the guidelines of the party’s whip.[27] freedom of speech is not violated Paragraph 2(1) of the Tenth Schedule offers an impact to the rule and assumption of the integrity of the party by imposing disqualification on Members. In Kihoto Hollohan,[28] the Hon’ble Supreme Court has construed that ‘any direction’ should pertain to two matters, viz., (i) a vote on the decision of the motion of confidence or no confidence in the government; and (ii) if the impugned motion is related to a fundamental policy of the political party dependent on which it moved toward the electorate. The same has also been suggested by the Dinesh Goswami Committee on Electoral Reforms.[29] When the party proposes a Bill, it is anticipated to have been discussed where the Members of the House get a full opportunity to set up their perspectives. Once the party comes to a final decision, the Member is bound to comply with it. If still, the Member cannot accommodate, he can surrender the seat to which he got chosen in the name of the party and look for re-election. So far as the right of a Member under Articles 105(1) and 194(1) is concerned, these rights are not unconditional but are dependent upon different provisions of the Constitution such as Article 19 and rules of the Parliament. The Constitution makers, accordingly, never proposed to give any supreme right of freedom of speech to a Member of the Parliament/State Legislature and it can be supervised and regulated by enacting separate Constitutional legislation.

CONCLUSION AND SUGGESTIONS The purpose of enacting the Anti-Defection Law is not only to provide stability to the Government but also to make it effective. Democracy is a basic feature of the Constitution. Election directed at standard spans is basic to the democratic system conceived in the Constitution. At the same time, the sanctity of the electoral process also needs to be secured. If a Member casts a vote or refrains from casting a vote by going against the directions and ethics of the political party then it would be equivalent to dissatisfaction with regards to the program dependent on which the Member and got himself chosen by the electorates and would result in the breach of the trust of the electorate. The debate is a basic and sound need in the working of Parliamentary democracy and considering the outcomes of the disqualification which is the termination of the Membership of a House, the Kihoto case has rightly limited the freedom of speech without eliminating it since freedom of speech is also indispensable in democracy along with a stable political party. Such limitation is viable with the soul of our Parliamentary Constitution and for compelling and intentional administration of the nation, individual freedom of Individuals from the House must be diminished in the interest of the nation. The research paper provides few suggestions given below to harmonize both the aspects as both are wheels of the same vehicle which aids in the smooth and effective functioning of Parliamentary democracy which is one of the basic features of the Constitution: i. Paragraph 2(1) should be interpreted amicably with other Constitutional provisions and should be suitably limited to the objects of the Tenth Schedule. ii. When the impugned motion is regarding the impeachment of the President of India and Judges of the Supreme Court, no directions should be issued to its Members since the exercise of these functions are essentially judicial. iii. Where a Member defects for a financial preferred position, a component of exacerbation goes into his activity which must be dealt with more noteworthy seriousness. Such legislator shall be barred from contesting an election in the future. This is necessary as defections have not stopped altogether. Such suggestion may appear to be harsh at the first glance, but to create a deterrence effect among the Members, it is expedient as malignant diseases call for drastic remedies.

[1] Jaykishan Sharma, Rajasthan Political Crisis: ACB Files Case against another Rebel Cong Lawmaker, Hindustan Times (Jul 2020, 18, 07:30 PM), (last visited 24 Sep., 2020). [2] Madhya Pradesh Crisis another Reminder that India's Anti-Defection Law is Rife with Problems, Needs Serious Rethink, Firstpost (Aug. 2020, 11, 09:10 PM), [3] Karnataka Political Crisis: All about the Anti-Defection Law, The Times Of India (Aug. 2020, 28, 10:00 AM), [4] Constitution of India, 1950, Art. 164 (1B). [5] Ravi S. Naik v. Union of India, 1 S.C.R. 754 (1994). [6] Sharad Yadav Disqualified from RS, The Hindu ( Oct. 2020, 01, 02:00 AM), [7] Rajasthan Crisis: Sachin Pilot Fired as Rajasthan Deputy CM, State Party Chief, India Today (Aug. 2020, 05, 11:00 AM), [8] The Right to Dissent is the Most Important Right Granted by the Constitution: Justice Gupta, The Wire (Oct. 2020, 07, 03:15 PM), [9] Constitution of India, 1950, Art. 19(1)(a). [10] Id. [11] Id. [12] Keshwananda Bharti v. State of Kerala, 3 S.C.C. 154 (1974). [13] Indira Gandhi v. Raj Narain, 3 S.C.R. 333 (1975). [14] Parkash Singh Badal v. Union of India, I.L.R. 1 P&H 251, at 313-14 (1988). [15] Griffith & Ryle, Parliament Functions, Practice And Procedures 70 (1989). [16] Rodney Brazier, Constitutional Reform - Reshaping The British Political System 48-49 (1991). [17] Parkash Singh Badal v. Union of India, I.L.R. 1 P&H 251, at 277 (1988). [18] Amalgamated Society of Railway Servants v. Osborne, 1910 A.C. 87, at 111. [19] Nani Palkhivala, Our Constitution Defaced And Defiled (1974). [20] Amalgamated Society of Railway Servants v. Osborne, 1910 A.C. 87, at 111. [21] Ministry of Home Affairs, Report of Committee on Defections (1969). [22] Kanhiya Lal Omar v. R.K. Trivedi, 4 S.C.C. 628 (1985). [23] Harold Joseph Laski, Parliamentary Government In England: A Commentary (1938). [24] Supra note 15. [25] Ivor Jennings, Cabinet Government (1959). [26] Supra note 23. [27] Herman Finer, Theory And Practice Of Modern Government 97 (1949). [28] Kihoto Hollohan v. Zachillhu, 1992 S.C.C. Supl. (2) 651, at 711. [29] Government of India, Ministry of Law and Justice, Legislative Department, Report of the Committee on Electoral Reforms (Sep. 2020, 07, 10:00 AM),

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