In 1967, Haryana’s MLA Gaya Lal changed his political party three times in the span of fifteen days — first from the Congress to the Janata Party, then back to the Congress, and again to the Janata Party. ‘Aaya Ram, Gaya Ram’1 thus became a popular phrase in Indian politics, referring to legislators (members of legislative bodies, such as MPs or MLAs) who frequently change their political allegiance and jump from one political party to another.
Political defection or shifting of party allegiance by legislators can happen for varied reasons, but it becomes problematic when politicians are given bribes to shift to other parties, by offering them the reward of a powerful political position or other benefits. Defections by legislators threaten the stability of the government and can even result in the fall of a ruling government. 2
Even now, there is an ongoing dispute in Rajasthan between the ruling Congress party and the opposition BJP. Chief Minister Ashok Gehlot has accused the BJP of trying to overthrow his government by bribing Congress MLAs to join the BJP.3 Rajasthan is now the fourth state in India to witness such a turmoil in the last one year.
Anti-defection law in India: Tenth Schedule of the Constitution
Frequent political defection is a problem faced by many parliamentary democracies including India. To tackle the problem of defection, also known as floor-crossing, the Indian Parliament adopted the legislative route and amended the Constitution. In 1985, the Tenth Schedule4 was added by the Constitution (Fifty-second Amendment) Act. The Schedule lays down the process by which legislators may be disqualified on grounds of defection.
Under the Tenth Schedule, a person can be disqualified from being a member of the:
- State Legislative Assembly
- Legislative Council of a State
Disqualification means that the person cannot be a member of any of these legislative bodies. In other words, upon disqualification, a person belonging to a political party cannot compete in elections for a seat in these houses and cannot become a legislator.
A legislator belonging to any political party who is disqualified from being a member of a legislative body, is also disqualified to be appointed as a Minister in the government,5 till he is re-elected.
How can a legislator be disqualified?
Disqualification of a legislator can happen in two ways:
- The legislator will be disqualified if he voluntarily gives up his political party membership,6 generally through a formal resignation. Sometimes, even without a formal resignation, it is possible to conclude from a person’s behaviour/conduct that he has given up membership in a political party.7 Thus, the act of voluntarily giving up membership of a political party may be either express or implied.8
- Legislators have to vote on various issues in the Parliament/State legislative bodies. Every political party has its own opinion on any issue, and will decide whether party members will vote in favour of an issue or against it. If a member of a political party goes against his party’s orders and does not vote according to what his party has decided, then he will be disqualified from being a legislator.9 The disqualification will not happen if the party decides to accept its member’s vote within fifteen days from the date of voting.
Sometimes, a person who is not a member of any political party gets elected to be a member of a legislative body. In this case, the person who has got elected will be disqualified if he joins any political party after the election.10
Changing one’s political party without facing disqualification
There are certain circumstances in which legislators may change their party without facing disqualification. The law allows a political party to merge with another party if at least two-thirds of its legislative members have agreed to the merger.11 In a merger situation, the party’s legislative members will not face disqualification, irrespective of whether they have agreed to the merger, or chosen to function as a separate group without merging.
Who decides whether a legislator should be disqualified?
The decision of whether a legislator should be disqualified or not, is taken by the Chairman or Speaker i.e., the Presiding Officer of the legislative body.12 A legislator is allowed to appeal against the Presiding Officer’s decision in court. 13
In this Kihoto Hollohan v. Zachillhu and Others, the Supreme Court discussed the underlying purpose of the Tenth Schedule and its various provisions. The Court said that the objective is to curb the evil of political defections which happen when politicians join other parties in return for being given certain political posts or similar rewards, thus endangering the foundations of democracy.
Further, the Court held that:
‘These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party.’
According to the Court, the law that disqualifies a person who voluntarily gives up party membership is based on political propriety and morality. If the legislator, after election, changes his affiliation and leaves the political party which had set him up as a candidate, then he should also leave his membership of the legislature and go back before the electorate. This is also applicable to a person who is elected as an Independent candidate and wishes to join a political party after the election.