Anti-defection law not applicable in PresidentÔÇÖs election

By Kunwar Vijay Pratap Singh

The provisions of anti-defection law as described under Tenth Schedule of the Constitution of India are not applicable in the elections for the office of President, Vice-President or Rajya Sabha. According to the clarifications issued by the Election Commission of India, voting or not voting as per free will in the Presidential election by any member of the Electoral College will not come within the ambit of disqualification under the Tenth Schedule of the Constitution of India. Thus, electors are at liberty to vote or not to vote in the Presidential election as per their own free will and choice.

Accordingly, voting in election to the office of President is different from voting by a Member of Parliament or State Legislature inside the House. The Supreme Court of India in Kuldip Nayar vs Union of India (AIR 2006 SC 3127) held that an elector would not attract the penal provisions of the Tenth Schedule in the case of the election to the Rajya Sabha if a member of a State Legislative Assembly votes for a candidate in defiance of the partyÔÇÖs directions.

In Pashupati Nath Sukul vs Nem Chandra Jain (AIR 1984 SC 399), the Supreme Court of India has said that elections to the Rajya Sabha by members of the State Legislative Assemblies are a non-legislative activity and not a proceeding within the State Legislature. The election to the office of the President is also held by an electoral college which comprises of elected members of both House of Parliament and elected members of the State Legislative Assemblies (Article 54 of the Constitution). The electors of this Electoral College vote in the Presidential election as members of the said Electoral College and the voting in such election is outside the House concerned and that is not a part of the proceedings of the House.

Thus, every elector in the Presidential election has the freedom of making a choice to vote for any of the candidates or not to vote in the election as per his free will and choice. This will equally apply to the political parties and they are free to canvas or seek votes of electors for any candidate or requesting or appealing to them to refrain from voting. However, the political parties cannot issue any direction or whip to their members to vote in a particular manner or not to vote in the election leaving them with no choice, as that would tantamount to the offence of undue influence within the meaning of section 171C of the Indian Penal Code.

What is Anti-Defection Law?

Anti-Defection Law is an important feature of Indian Parliamentary democracy. This provision was incorporated in the Constitution of India by inserting Tenth Schedule by the 52nd Amendment of Constitution in 1985. This law contains adequate provisions for disqualification of members of Parliament and the State Legislatures on the ground of changing loyalty. This provision was further amended by 91st Amendment Act 2003.

Disqualification on the ground of defection

A member of either House of Parliament or of a State Legislature belonging to a political party will be disqualified for being a member of that House; if he voluntarily gives up his membership of such political party. Similarly, a member of either House of Parliament or of a State Legislature belonging to a political party will be disqualified for being a member of that House if he votes or abstains from voting in such House against the directions issued by that political party to which he belongs.

An Independent candidate elected for either House of Parliament or of a State Legislature cannot join a political party. If he does so, he will come under the domain of disqualification provision. However, an Independent member can become a minister with a political party in power. We have example of Madhu Koda who served as Chief Minister of Jharkhand from September, 2006, to August, 2008, as an Independent member of Jharkhand Legislative Assembly.

Exceptions of Anti-Defection Provisions

The disqualification provision of ant-defection law shall not be applicable in case all the members belonging to a political party of a House or not less than two-third members of that political party of that House make a new political party or merge with another political party.

Similarly, the office of the Speaker or the Deputy Speaker of Lok Sabha or Vidhan Sabha of a State; Deputy Chairman of Rajya Sabha and Chairman or Deputy Chairman of the Legislative Council of a State has been kept out from the ambit of disqualification provisions.

Concept of unattached member

If a member of a House belonging to a political party is expelled by that party for any reason, such member shall not be subjected to disqualification on the ground of defection and shall not lose his membership from that House. Such member will be treated as an ÔÇÿunattached memberÔÇÖ.

It can be summed up from the above discussion that Anti-Defection Law has played an important role in the development of Parliamentary democracy in the Republic of India. Right from its inception in 1985 through 52nd Amendment to 91st Amendment (2003), the Tenth Schedule of the Constitution of India has seen many ups and downs.

Even in the post-2003 era, it had restricted ÔÇÿAya-Ram Gaya-RamÔÇÖ politics to a significant extent. We have certain recent examples like Haryana, Karnataka, Uttarakhand and Arunachal Pradesh where the provisions of the Tenth Schedule have been used, misused and even abused for the gain of the party in power. In the case of Haryana, Kuldeep Bishnoi had to approach Punjab and Haryana High Court for asking the Speaker to decide his petitions in a time-bound manner. Even the decision of the High Court came on October 9, 2014, after the last session of Haryana Assembly was over on July 15, 2014, and the election process started for the next Vidhan Sabha.

We cannot rule out judicial review of SpeakerÔÇÖs action or of imposition of PresidentÔÇÖs rule in a State by the Union government. However, open outburst of Uttarakhand High Court on the President, the Chief Executive of the Republic of India, does not give good taste keeping in view the ethos of democracy like ours.

On the whole, we appreciate the objects and reasons behind the inception of Anti-Defection Law in the shape of Tenth Schedule in the Constitution of India. The Presiding officers, Chairman or Speaker as the case may be, should act in an impartial manner as a true custodian of the House without taking side with the interests of the party they belong to.

 (The writer is a distinguished police officer and a scholar of Constitutional & Criminal Law)

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