Wilbur Menezes
It’s been called many things, ‘Aya Ram, Gaya Ram’ (ref: 1967, Haryana legislator Gaya Lal changed loyalties twice in one day and thrice in a fortnight to be in the ruling party). ‘horse trading’, ‘Musical Kursis’, ‘Hajurias and Khajurias’ (ref: 1996, Gujarat, for those who stayed with CM Keshubhai Patel and Vaghelas turncoats holed up in Khajuraho, MP), ‘floor-crossing’, ‘carpet-crossing’, ‘party- hopping’, etc. The recent torrent of defections (including mergers or splits) has exposed serious lacunae in the 10th schedule of India’s Constitution, better known as the Anti-Defection law. This piece highlights the aspects of defection and specifically splits or mergers in other Commonwealth countries (given the similarity in democratic set-up) including their constitutional mandate.
Anti- defection law in India
The Tenth Schedule was inserted in the Constitution in 1985 and applies to both Parliament and State assemblies. Popularly termed as the anti-defection law it sought to prevent political defections (in simple sense a legislator moving from one party to another or a group or individually) which may be due to reward of office or other similar considerations. The Tenth Schedule lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature (the Speaker) based on a petition by any other member of the House. A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. Therefore a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. This was the easy part; the devil lies in the exception that states that legislators may change their party without the risk of disqualification in certain circumstances such as a merge with or into another party provided with the consent of two-thirds of its legislators. In this scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification (Eg. Recent merger of Congress into BJP in Goa). However, there is a grey area in this regard. Some schools of thought interpret that besides the consent of two-thirds of the party, it is a must for the original political party to merge as well.
As per study titled “Anti-defection law in India and the Commonwealth” by GC Malhotra, the study states “In Bangladesh, there is no specific provision for splits and mergers in the Constitution or in any law or Rules of Procedure. In Ghana, a merger of parties at the national level sanctioned by the Constitution or membership of a coalition government of which his original party forms part shall not affect the status of a member of Parliament. In Nigeria, exemption is given in cases of splits and mergers. However, there is no prescribed number as to what constitutes a split or a merger. In Sierra Leone, both collective as well as individual defections are penalised. In South Africa, as mentioned earlier, following the laid down conditions and procedure, a party could merge, sub-divide or sub-divide and merge only once by written notification to the Speaker during the 15-day window period. In Belize, Guyana, New Zealand, Sri Lanka, Trinidad and Tobago, there are no legal provisions for splits and mergers. In Mozambique, the law does not formally recognise splits within the parties or parliamentary coalitions. The Constitution of Australia does not contain any reference to political parties except for a provision requiring casual Senate vacancies to be filled by a person of the same party as the Senator who vacated his or her place. The Standing Orders of the House of Representatives do not refer to political parties at all .In the Australian system of government, members are elected as individuals to represent their constituencies and party membership is a matter for their personal choice.”
Further the study states that “In the Canadian Parliament, although most members are elected with a party affiliation, they are not obliged to retain that party label during the whole of their mandate. A member who changes party allegiance is under no obligation to resign his seat and stand for re-election. There is no prohibition, legal or constitutional, against the practice of crossing the floor. There is no reference to the term ‘defection’ in the Constitution or in the Standing Orders of the House of Commons or the Rules of the Senate. The matter of discipline is particularly important for the Government party which must retain the support, or confidence, of the Legislature to remain in office, and more so if that Government party commands the support of only a minority of legislators. The Speaker does not have any say in these matters. A split is deemed to have taken place when members request the Speaker to change the seating arrangements in the House so that they may sit opposite their former party or outside the bloc of seats reserved for it.”
Further as per the study “In Papua New Guinea, the law envisages penalties if a member of the legislature leaves the party with which he was aligned when first elected and joins another party or becomes independent. If the member chooses to change the party then he is required to face the ‘leadership tribunal’ (the Ombudsman Commission), which shall decide whether the grounds for resignation are valid. Under the legislation, valid resignations are possible only when the party has breached its own constitution or when the party has been declared insolvent. If the tribunal rules against the member, a by-election must be held. In the Parliament of South Africa, members represent not only the public but also specifically their parties in the Legislature. The Constitution has, however, been amended in 2003 to make provision for two 15-day window periods during the five-year life of a Parliament, during which Assembly members may change their party membership while retaining their seats in the Assembly. During this period, by giving written notification to the Speaker and complying with provisions laid down in this regard, a member may change party membership once, a party may merge, subdivide, or subdivide and merge once only; and a member may resign from a party to form another party.
In the United Kingdom, changes of party membership do occur from time to time. However, the changes of party cause problems for the political parties concerned rather than for the House of Commons. In recent Parliaments, there have been instances where members have changed their party affiliations. There are no laws or Standing Orders requiring members to register the party of which they are members or providing for any consequences if a member changes the party. A member who changes party is not required to resign. Similarly, a member expelled from his party would retain his seat. Seating in the House is governed by convention, and not rules, but such a member would normally sit separately from party members.”
In fine, the comparative analysis of various anti-defection laws within the Commonwealth realm shows us that the Republic of India is not the exclusive victim of defection infection. It is, however, noteworthy to keep in mind that, besides there being a clear cut lacunae in the 10th schedule of the Constitution needing urgent remedy, it would be appropriate if legislators would show self restraint, putting loyalty and ideology first, rather than circumventing legal hurdles.
(Wilbur Menezes is a lawyer at the Bombay HC, Goa).
