In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution. But its enactment was catalysed by the political instability after the general elections of 1967. This was the time when multiple state governments were toppled after MLAs changed their political loyalties. The noted context in this regard is the serial defector of Haryana MLA Gaya lal who changed his loyalty thrice in 1967 and thereafter famously called Aaya Ram Gaya Ram. The purpose of the 1985 Constitution Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected. The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.
The anti-defection law was included in the Constitution as the Tenth Schedule in 1985 to combat the “evil of political defections”. The main purpose was to preserve the stability of governments and insulate them from defections of legislators from the treasury benches. The law stated that any Member of Parliament (MP) or that of a State legislature (MLA) would be disqualified from their office if they voted on any motion contrary to the directions issued by their party.
The law specifies the circumstances under which changing of political parties by MPs invite action under the law. The law covers three types of scenarios with respect to an MP switching parties. The first is when a member elected on the ticket of a political party “voluntarily gives up” membership of such a party(para 2(1)(a)) or votes in the House contrary to the wishes of the party(para 2(1)(b)). The second possibility is when an MP who has won his or her seat as an independent candidate after the election joins a political party. In both these instances, the MP lose the seat in the House on changing (or joining) a party.
The provision was not limited to confidence motions or money bills (which are quasi-confidence motions). It applies to all votes in the House, on every Bill and every other issue. It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government. Therefore, an MP (or MLA) has absolutely no freedom to vote their judgement on any issue. They have to blindly follow the direction of the party. This provision goes against the concept of representative democracy.
The third scenario relates to nominated MPs. In their case, the law specifies that within six months of being nominated to the House, they can choose to join a political party. The time is given so that if a nominated MP is not a member of a political party, they can decide to join one if they want. But if they don’t join a political party during the first six months of their tenure, and join a party thereafter, then they lose their seat in Parliament. That is what has happened in Dasgupta’s case. After his nomination to Rajya Sabha in 2016, he did not join a political party within the mandatory period of six months, and his membership was open to challenge under the anti-defection law.
There is one exception of such disqualification post defection. The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
In the case of Keisham Meghachandra singh v Hon’ble speaker, Manipur raised the serious questions of the role of the speaker. Under this law if a legislator should be disqualified or not and such determination of disqualification is vested with speaker of the house who is de jure or de facto member of ruling party. The tenth schedule unequivocally asserted the centrality of the role of the speaker in determining the questions of defection and disqualification. The Three judge bench led by Justice Rohinton Fali Nariman advocated the need for a constitutional amendment where the power to decide matters pertaining to defection should be taken away form the speaker and should be vested with a permanent tribunal headed by retired SC judge.
In the recent years the MLAs are either defecting to ruling party or resigning from existing party. In the former case the the speaker of the house is impendingly hold his decision favouring indirectly to the ruling party. And in the latter case though the speaker acts timely, the ruling party may loss majority in the house because of the resignation or voluntarily giving up the membership leading to the fall of government. The SC in Ravi S Naik v State of Maharashtra had quite liberally interpreted para 2(1)(a) to suggest that the term ‘voluntarily giving up the membership’ should not be restricted to formal acts of resignation from the party alone but should also be inferred from the members behaviour as to whether his actions would, in the eyes of the speaker, amount to anti party activities.
When the MLAs resign from ruling party the speaker may withheld his decision or decline to accept the resignation which might collapse the govt. When the move to SC or HC, in general the court order the floor test to prove its majority. Justice Ramana in judgment pertaining to resignation of MLAs in Karnataka held that an order of the Speaker under the Tenth Schedule could be subject to judicial review only on four grounds: mala fide, perversity, violation of the constitutional mandate and order passed in violation of natural justice. He referred to the Constitution Bench decision in the Kihoto Hollohan case in this context. In the case the SC upheld the decision of speaker for disqualification of all MLAs but didn’t bar from contesting the elections. “Neither under the Constitution nor under the statutory scheme it is contemplated that disqualification under the Tenth Schedule would operate as a bar for contesting re-elections”.