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THE
ANTI-DEFECTION
THE
ROLE
OF
ACT,
THE
1985
AND
SPEAKER
N. S. GEHLOT
With the deteriorating political situation in the country the
trend of political defections has once again acquired new dimensions in our federal set up and it brought to the limelight the
loopholes in the Anti-Defection Law, 1985, enacted by the then
Rajiv Government with a view of strengthening our political
institutions. The political scenario furtherconfirmed the mis*
givings and doubts expressed at the time of its passage about
the utility of legislation and role of the Speaker in dealing with
the cases concerning the scope of the above-mentioned Act, It
is now admitted that the Act has failed to achieve its purpose,
viz-a-viz checking the unprincipled floor-crossingby our legislators
and ensuring governmental stability both at the Centre and in
the States of the Indian Union. The old game of the 'Aya Ram
and Gaya Ram* has once again made a mockery of our democracy and even of the enactment of the 52nd Constitutional Amendment Act, 1985, because retail defections had been outlawed in
it while wholesale defections have been legalized under this Act.
For example, Mr. Chandra Shekhar with a group of 61 MPs left
the Janata Dal, in a bid to oust the V.P. Singh Government and
then formed the Janata Dal (S) Government but it did not
attract the penalty laid down under the Anti-Defection Law.
The game of wholesale defection was termed as a 'split' in the
Janata Dal and not political defections because of 1/3 strength
of the original party in the Lok Sabha. The operation of 1/3
principle of the Act resulted into the ridiculous formation of a
minorityGovernment of the Janata Dal (S) backed by the Congress (I).
Science
TheIndian
, Vol. 52, No. 3, July- Sept.,1991.
ofPolitical
Journal
P- 5
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328
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THE ANTI-DEFECTION
ACT, 1985 AND THE ROLE OF THE SPEAKER329
Deputy Speaker or as a Chairman or a Deputy Chairman,
resigns from the membership of his party become a nonparty entity. These provisions will also not apply to them
when they rejoin the parental party or any other political
party after ceasing to hold such offices. All the proceedings
regarding the decisions on disqualifications of the members
of the House under the Tenth Schedule shall be deemed to
be the proceedings of Parliament/Legislature under Articles
122 and 212, respectively.
:
Decision of Cases Relatingto Disqualification
Para 7 of the Act lays down that any question regarding
disqualification arising out of defection is to be decided by the
Chairman or the Speaker of the House as the case maybe and his
decision shall be final. The courts do not have a jurisdiction in
such cases. It furthermentions that when a question regarding
such disqualification arises about the Speaker or the Deputy
Speaker, Chairman or Deputy Chairman, the question shall be
referred to such members of the House as the House may effect
in this behalf.
Rules and Regulationsof DefectionLaw :
The Constitutional Amendment Act, 1985, lays down a set of
rules and regulations forthe Speaker or Chairman, as case may be,
and it provides the procedure with regard to expulsion/admission
of a member of the House from the party. These rules were framed on December 16, 1985 by the Lok Sabha. The Lok Sabha
(Disqualification on Ground of Defection) Rules, 1985 stipulates
that every such petition alleging disqualification should be
addressed to the Secretary General of the Lok Sabha, containing
a concise statement of the material facts against the alleged
Member of Parliament (MP), It is provided that the Speaker
would seek the reply from the affected party within seven days
after receiving the petition from the leader of the parry concerned. The decision of the Speaker in this regard shall be notified
in the Official Gazette and forwarded to the Election Commission
and the Central Government. Likewise, the state Governments
also framed the similar rules and regulations for the application
of the disqualification clauses of the Act for their legislators.
The Speaker of Kerala obtained the firstopportunityto deal with
the case of disqualification under the Anti-Defection Law, 1985
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330
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THE ANTI-DEFECTION
ACT, 1985 AND THE ROLE OF THE SPEAKER331
(e) In the case of party split and party merger, the role
of the party organization has been completely ignored and
the legislative wing of the party has been given complete
freedomof action. Thus, the above-cited Act makes a discrimination between an Independent member and a nominated
member. The formercannot join any political party but the
latter can join it within six months of his election. However,
Independents can change his loyalty in favour or against the
Government on crucial occasions.2
In short, eminent Parliamentarians like J P,, Kripalani,
Madhu Limaye, Madhu Dandavate and a host of others had
expressed their apprehensions about the nefarious intensions
of the Act. They had termed it as sinister in character
under the garb of the utmost radical move, as it was meant
to legitimise the party-despotismor party bosses in the country.3Doubts were also raised whether the Act would be able
to provide political stability at the governmental and the
party levels, while honouring the working of inner party
democracy in a party-structure.4 Since the law on defection has not put a ban on defections arising out of the
lust for power and it has legalized wholesale defections, as it
was pointed out, it could not succeed in its mission to prevent the game of wholesale defectionswhich had taken place
in our polity during the 1989 90 phase.
Speaker'sRole UnderThe Anti-DefectionLaw :
The political scenario of instabilityas was obtained in country
after the split of the Janata Dal in November, 1989 also called
in question the impartiality and neutrality attached with the
officeof Speaker.6 Doubts were raised that the Indian Speaker,
while handling the situation arising out of the dissident activities
amongst the elected members and the 'split* caused in the Janata
Dal, did not act judiciously and impartially. It was alleged by
the opposition parties that the role of the Speaker of the Lok
Sabhaand the Speakers of Rajasthan, Gujarat, Uttar Pradesh and
Bihar, in granting officialrecognition to the rebels of the break
away group of the legislators was not a sign of impartiality,
especially when they (defectors) had openly flouted the partywhip.
Their voting behaviour, contrary to the party whip, virtually
incurred the disqualification as laid down in the Anti-Defection
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332
Law of 1985. The voice was raised that the Lok Sabha Speaker
should have declared them disqualified according to the spirit of
the provisions of the Act. Different legislative parties moved
their petitions lodging the complaints against the behaviour of
the defectors and urged the Speaker to declare them as disqualified under the Anti-Defection Act, 1985.
Our recent experience has shown that Indian Speakers have
not acted in an impartial and independent manner in dealing
with the disputes of disqualifications of the legislators arising out
of the 'split* of a party or violation of the party-whip on Confidence Motion and other cases of floor-crossings. The way in
which the membersof Legislatures changed their party-affiliations
with a desire to grab power, has dragged the august body into fresh
controversies. They have been alleged to have misused their
powers entrusted to them under the Anti-Defection Act, 1985
and they have totally frustrated the very purpose of the Act,
while excercising the powers under Para 3 of Tenth Schedule of
the Act that recognizes the 'split* in the party caused by 1/3
members of that party and Para 4 that recognizes an elected
member as the party-member. They were furtheralleged to have
perverted the spirit of the Act, rendering it so obsolete in our
federeal polity,because their role has weakened the party loyalty
as well as party discipline.
The manner in which the Lok Sahha Speaker, Mr. Rabi
Ray, delivered his rulings relating to the issue of disqualification
of the members of the Janata Dal (S), also shocked many.
Serious concerns have been expressed and the voice was raised
that the Act should be reviewed again in the light of its inherent
weaknesses and flaws, providing checks on Speaker's powers to
strengthen the political system of India. It was realised that
those weaknesses have reduced it to a mockeryin our set-up.
The Anti-Defection Law was conceived as a measure of electoral
reformwith explicit purpose of putting a stop to political defections of over-ambitious membersof legislatures from one party to
another and eradication of the 'Aya Ram Gaya Ram' phase from
our political system. The political turn-out that followed with
the exit of the V. P. Singh Government at the Centre brought to
the lime-light new technicalities of the Act, especially when the
issue of status of the break-away group from the Janata Dal was
to be determined by the Speaker, as these members had been
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THE ANTI-DEFECTION
ACT, 1985 AND THE ROLE OF THE SPEAKER333
expelled from the party in two batches. It was noted with disgust how the spirit of the Anti-Defection Law was conveniently
ignored by all concerned of the Lok Shbha to suit their convenience of power and how they failed to honour the law of Parliament which had enated it in 1985. Instead, the game undermined
our democratic institutions and rendered the second experiment
of the National Front Government a failure in our political
system.
The Government
:
of Defectorsat theCentre
The National Front Government led by V. P. Singh was
voted out of power on November 7, 1990 following the defections of the thirtyseven members of the Janata Dal (JD). The
list of these members was submitted to the then Speaker of the
Lok Sabha, Mr. Rabi Ray, on November 6, 1991, by its leader,
Mr. Chandra Shekhar, informinghim about the split in the J.D
and the formation of a new political party. On the eve of the
Vote of Confidence in the Council of Ministers led by Mr. V. P.
Singh, the Speaker declared the twenty five members of the
breakaway group of the J. D. as "unattached". Notwithstanding
the ruling of the Speaker, the leader of its group, Mr. Chandra
Shekhar, staked his claim to form the government at the Centre
with the 'outside' support of the Congress (I) and he could
successfully form the government at the Centre. The purpose of
a split in the Janata Dal, thus, was fulfilled; that is, it was
merely a struggle of game for power launched by Mr. Chandra
Shekhar and Mr. Devi Lai to grab the power.
A petition on behalf of the J. D. was filed to the Lok
Sabha Secretariat for the disqualification of 31 members of the
J. D. for defying the party whip and voting against the N. F.
Government. This list included all those dissidents who had
been expelled from the Janata Dal and who had already been
declared 'unattached' by the Lok Sabha Speaker.7 On the other
hand, the J. D, dissident leader also filed his petition, urging the
Speaker to revoke his order declaring the 25 Janata Dal faction
MPs as 'unattached' and appealing to recognize them as a separate political entity (the Janata Dal - Socialist) in the Lok
Sabha under the Tenth Schedule of the Constitution. His plea
was that the breakaway group of 37 Janata Dal constituted the
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334
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336
uphold the dignity of the House and the Speaker as well.9 And
finally,on the question of remaining in officeby the five Union
Ministers, who had already been disqualified by the speaker in
the disqualification case, it was widely viewed as the defiance of
Speakers ruling. The Janata Dal (S) was charged in the Lok
Sabha of reducing the spirit of the Anti-Defection Act, 1985 that
is political stability and public morality,as keeping the Ministers
in office amounted to legitimatising defectors under Article 75
(5) of the Constitution of India. The Government's attention
was drawn to the specific recommendation of the Defection
Committee formed in 1967, which had suggested that defectors
should not be given any ministerial birth. Even the opposition
parties, namely the Janata Dal, the B. J. P. and the Left parties, in their memorandum to the President of India, urged to
sack those Ministers in order to uphold the sanctity of the constitutional law. The controversy lateron ended when the Prime
Minister relieved the Union Ministers from their portfolios
following the mounting pressure of the Congress (I).
Meanwhile, a full bench of the Delhi High Court revoked
its stay order on 11th January,1991, declaring that the Speaker
of the Lok Sabha enjoyed jurisdiction in the matters of disqualification cases of the members of the Lok Sabha. It was a healthy
development that during the Lok Sabha debate, the wisdom
prevailed and the dignity of the House as well as the authority
of the Speaker was maintained. It was, however, unfortunate
that the entire embroglio left a bad reflectionof the standard of
political conduct of a Minister in our Parliamentary history.
Validityof Speaker'sRuling Questioned
Notwithstanding the fact that the Speaker's rulings in the
disqualification was widely welcomed, the doubts about the
impartiality of the Lok Sabha Speaker were aroused because of
Speaker's political affiliation with the party which had elected
him as Speaker. The Speaker of Kerala's Legislative Assembly,
Mr. V. Radhakrishna, for example, questioned the impartial role
played by the Lok Sabha Speaker, as he had not given a chance
to the members of the break-away Janata Dal to submit their
explanations before declaring them 'unattached'. He should
have taken into account the claims and counter-claims of the
members of the Janata Dal and its faction before his judgement.
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THE ANTI-DEFECTION
ACT, 1985 AND THE ROLE OF THE SPEAKER339
First, a fresh country-wide debate should be called for to
evolve a national consensus as to how to overcome the trends of
defections and how to remove the drawbacks of the Anti-Defection Law, with a view to strengtheningour parliamentary democracy. Second, there is an utmost need to have some effective
checks on the unlimited powers of the Speaker in dealing with the
disqualification cases of elected members. The demand that the
Speaker's ruling should be made subject to judicial review by the
special tribunal constituted for the purpose should be seriously
taken into consideration.
Apart from this, the wholesale defections shall have to be
banned under the law, because dissident members in a political
party are free to act according to their convictions at the party
forum but they must resign and seek fresh mandate from the
electorate who have elected them on the label of a particular
party. The lacuna as referredto by the Lok Sabha Speaker in his
ruling should also be taken into account. It is, however, important to explore the scope of allowing dissidence to function within the organization of a political party,because dissident opinion
is one of the important ingredientsof democracy and it should be
encouraged in our party system. The political party is more important than the individuals in a democratic setup as electors
vote for a party and not for candidates. Also, a deterrentprovision has to be made placing a ceiling on the size of the Council
of Ministers so as to circumscribe the scope of sheilding political
rewards to defecting members.
Lastly, there is utmost need to introduce the principle of inner
democracy within the organization of a political party in India to
eliminate the evils like bossism in the partysystem. In the absence
of inner party elections, the political parties have come into existence on the basis of autocracy, feudalism, religion, casteism and
regionalism, which have subverted the virtues of party system,
such as dissension, emergence of rival leadership and periodic
elections within the organization. These evils have given birth to
psychophancy and mental-slaveryin the rank and file in the name
of loyalty, discipline and ideology. It is regrettedthat the political parties which have ruled the largest democracy of the world
have sofar not honoured the concept of inner-partydemocracy in
their organizations. It is, therefore, suggested that the party
system in the country should be recognized under the constitu-
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340
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