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Anti-Defection and Expelled Members: Text, Structure, History, and Theory

Yesterday, a two-judge bench of the Supreme Court issued notice and referred to a larger bench the case of Amar Singh vs Union of India. Amar Singh was expelled from the Samajwadi Party in December, and was designated an “unattached member” in the Rajya Sabha. In his petition, he argued that, since he had been expelled, he should now be entitled to vote against the Party whip, or join another political party, without being disqualified from parliamentary membership under the Tenth Schedule of the Constitution. Standing in his way was a judgment of a two-judge bench of the Supreme Court in 1996, G. Vishwanathan vs The Speaker, in which the Court had held that the Tenth Schedule was applicable to expelled members. With the case now being referred to three judges, the Court can consider the issue afresh.

Interestingly, this is not the first time the Court was asked to reconsider the correctness of G. Vishwanathan. Amar Singh had been previously expelled from the Samajwadi Party in 2010. He, along with two other expelled members (of other parties), filed an identical petition asking that the 10th Schedule not be applied to them. The Supreme Court referred the case to a three-judge bench, but that bench only heard the case in 2016. At that time, all the three petitioners’ terms in parliament was over; therefore, despite hearing the matter at length, the Supreme Court finally declined to answer the referral question about the correctness of Vishwanathan. But now, with Amar Singh expelled all over again, the case is back in Court for a second round.

What makes Amar Singh vs Union of India so interesting is that it lies at the intersection of constitutional text, the scheme of the Tenth Schedule, its framing history, and democratic theory. Broadly, the Tenth Schedule provides for disqualification from Parliament in case of “defection”. Section 2 of the Schedule provides for two circumstances: where a person has “voluntarily” given up the membership of his party; and where a person votes against her party whip. The Explanation to the Section states that “an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member.”

Vishwanathan and the Text of the Tenth Schedule

In Vishwanathan, the Supreme Court relied upon the text of Section 2 to hold that the only circumstance contemplated by the Schedule, in which a member no longer belonged to her political party, was if she “voluntarily” gives up his membership. The Court also relied upon the Explanation, which stated that a member was deemed to belong to the party who set her up as a candidate for election. For this reason, the Court held that:

“Even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as `unattached’. The further question is when does a person `voluntarily give up’ his membership of such political party, as provided in paragraph 2(1)(a)? The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member.”

In other words, despite his expulsion, for the purposes of the Tenth Schedule, an MP remained a member of the political party that had expelled her, until she joined another party – at which point, she was deemed to have “voluntarily” given up her membership, and subject to disqualification.

Of course, this pure textual reading – that leads to a seemingly counter-intuitive result – is not the only way of reading the Tenth Schedule. In Vishwanathan, the Court based its entire interpretation upon the deeming provision in the Explanation (extracted above); however, it is well-settled that an Explanation to a Section can only clarify its scope; it cannot expand it. In this context, if we start our reading with the main Section (instead of starting with the Explanation, as the Court did), we arrive at the following reading: the word “voluntary”, in its ordinary, common-sense meaning, obviously cannot apply to a situation of expulsion. An expelled member has been compelled to leave her party. Section 2(1)(a) of the Schedule, therefore, does not apply to her. Nor does an expelled member “belong” to the party that expelled her any more. Consequently, 2(1)(b) of the Schedule does not apply either. Since Sections 2(1)(a) and 2(1)(b) exhaust the circumstances in which an elected member can be disqualified for defection, the Tenth Schedule does not apply to expelled members.

Parliamentary History

If both these readings are equally convincing, which of them ought to prevail? It is here that Parliamentary history comes in. The original draft of the Tenth Schedule had an additional “Section 2(1)(c)”, which specifically made the Schedule applicable to expelled members. During the course of the debates, however, this additional section was dropped from the final version of the Schedule. And indeed, a perusal of the 1985 Parliamentary debates reveals that the Lok Sabha members were explicit about the reasons why it was dropped: multiple members stood up to draw a distinction between what constituted defection, and what constituted dissent, and argued that the elimination of Section 2(1)(c) was important to preserve intra-party dissent. There was no contrary voice. Consequently, it seems clear that, at the very least, Parliament did not intend the Tenth Schedule to apply to expelled members. Of course, to what extent the Court can take this into account – and to what extent the Parliamentary Debates can modify the Court’s interpretation of the Tenth Schedule – is another question.

The Basis of Anti-Defection 

Consider also the question of democratic theory. Anti-defection is premised on the theory that the basic unit of parliamentary democracy is the political party, and that therefore, a legislator’s responsibility to her party is more important than her responsibility to her constituents. This arguments comes through clearly in Kihoto Hollohan vs Zachillhu (which G. Vishwanathan’s Case relies upon). In that case, the constitutionality of the 10th Schedule was challenged. The petitioners argued that:

“… the very concept of disqualification for defection is violative of the fundamental values and principles underlying Parliamentary democracy and violates an elected representative’s freedom of speech, right to dissent and freedom of conscience and is, therefore, unconstitutional as destructive of a basic feature of the Indian Constitution.” (Emphasis supplied)

The challengers advanced a theory of representative democracy where the primary responsibility of a Member of Parliament was towards the constituents that had elected her. To substantiate this theory, they relied upon Edmund Burke’s 1774 speech to the Electors of Bristol and the observations of Lord Shaw sitting in the British Appeals Court in 1910, both of whom had stressed that under the British “Parliamentary Constitution” and system of “representative Government”, an individual legislator’s conscience ought to be the supreme. The Tenth Schedule, that subordinated the legislator’s conscience (presumably guided by the demands of her constituency) to that of party ideology, on the pain of disqualification, was therefore contrary to the basic feature of “democracy”.

The Supreme Court rejected this argument. Its reasoning proceeded as follows: first, applying principles of judicial deference, it accepted the legislative judgment that “unethical political defections” constituted “a canker eating into the vitals of democracy”. It then acknowledged the importance of debate and discussion within the Parliament, but also went on to observe:

“… a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance – nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things.”

Yet what of the legislator’s responsibility to her constituents, and the possibility that the exercise of this responsibility might come into conflict with the party line – and, correlatively, the requirement of dissent and democracy within political parties? The Court recognised this problem, responded by extracting a lengthy passage from Rodney Brazier’s Constitutional Reform and, in particular, seized upon a passage from the book that advocated a right to recall in case a legislator crossed the floor of the House. It finished by holding that compulsory disqualification was nothing more than a “statutory variant of… [the] justification underlying the power of recall.

Thus, in Kihoto Hollohan, the Supreme Court explicitly endorsed a model of parliamentary democracy which privileged the party line – and therefore, by extension, the vehicle of the political party – over the MP’s sense of responsibility to her constituents, and her right to dissent within the party. However, it is important to note that this does not negate the MP’s responsibility to her constituents or her right to dissent. In fact, in other judgments, the Supreme Court has indicated that the relationship between an elector and a candidate is normatively at least as important as that of the role of the political party within the Indian Constitutional scheme. A good example of this is a set of cases brought to Court in the last decade, which sought to make disclosure of personal details about political candidates compulsory. In Union of India vs Association for Democratic Reforms, for instance, the Supreme Court noted that:

“For health of democracy and fair election, whether the disclosure of assets by a candidate, his/her qualification and particulars regarding involvement in criminal cases are necessary for informing voters, may be illiterate, so that they can decide intelligently, whom to vote? In our opinion, the decision of even illiterate voter, if properly educated and informed about the contesting candidate, would be based on his own relevant criteria of selecting a candidate. In democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizens – voters. In a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. He has choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in criminal case. For maintaining purity of elections and healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided – its result, if pending – whether charge is framed or cognizance is taken by the Court?”

In this case, therefore, the Court placed a substantial amount of importance upon the relationship between the citizen-elector and the candidate qua candidate. This suggests that the Indian Constitutional scheme contains elements of both the legislator-centric and the party-centric theories of representative democracy.

Now, if this is the case – i.e., that Indian parliamentary democracy contains elements both of the part-centric model as well as the legislator-constituent-centric model – then the Xth Schedule ought not to be interpreted in a way that entirely privileges the former over the latter. In other words, given that the Xth Schedule prescribes the extremely draconian punishment of disqualification for “defection” – i.e., it subordinates the interests of the party over the relationship between the legislator and her constituents – when interpreting the Xth Schedule, the Court should do so strictly, so as to not entirely efface the latter. In other words, if there are two possible interpretations open to the Court – one that expands the scope of the Xth Schedule, and one that does not – all other things being equal, the Court should choose the former.

The Finality of the Speaker

Lastly, consider this. The Tenth Schedule makes the speaker’s decision on the issue of whether defection attracts disqualification final. The rationale for this is that – following common law traditions – those acts that have purely to do with the business of the House are to be regulated by the Speaker. Now, in the Parliamentary Debates, one of the reasons for removing Section 2(c) from the Draft Xth Schedule Bill was that expulsion of members is something that takes place “outside the House”. Consequently, an interpretation of the Tenth Schedule that would bring expulsion within its meaning would effectively mean extending the jurisdiction of the Speaker to activities outside the legislature. Could such an interpretation stand?

Conclusion

Therefore, when the three-judge bench assembles to hear Amar Singh vs Union of India, it will have to contend with a range of arguments centred around the text of the Tenth Schedule, its scheme, the Parliamentary history, and competing theories of democratic legitimacy in a parliamentary system. The outcome should be fascinating.

(Disclaimer: The author was one of the lawyers working on the brief on the behalf of the Petitioner, Amar Singh.)

 

 

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The Uttarakhand Incident: Thinking through the Anti-Defection Law

(In this Guest Post, Udit Bhatia, a doctoral candidate at the University of Oxford, examines the question of anti-defection laws, in light of the recent political and legal tussle in Uttarakhand)

The anti-defection law, introduced by the 52nd amendment to the Indian Constitution, prohibits legislators from voting against their party’s whip on any legislation, or voluntarily giving up membership of their party. Legislators who act otherwise are expelled from the legislative body. This rule was formulated in response to what was perceived as large-scale dubious floor-crossing by legislators in response to monetary incentives to bring down governments. What the amendment forbade, however, was not just the practice of legislators voting against their party in a trust motion, or vote of no-confidence, but from voting against it on any legislative matter where the party chooses to issue a whip. The anti-defection law was at the forefront of a recent Supreme Court ruling over President’s Rule in the state of Uttarakhand. While much of that debate focused on the centre’s seemingly unjustified intervention in the state’s legislative affairs and its trust vote, it seems to have been yet another missed opportunity to deliberate upon the justifiability of an anti-defection law in the first place.

Before I examine that debate further, I wish to emphasize that such strict policing of party boundaries might be somewhat less problematic if parties themselves were internally democratic units. As with legislation, then, the coercive nature of party positions on those legislations could derive legitimacy through their being voted upon after a discursive process open to all members. Political parties in India, however, remain far from this model of intra-party democracy. The selection of candidates for elections remains a highly centralised process for a large majority of the national parties. Additionally, the executive committees themselves are products of insufficient, if not non-existent, procedures in most cases. Although there exists little research on this, the opaqueness with which parties respond—when they do finally respond—to the Election Commission’s requests for information about internal elections is telling. Their reports say little about the method through which the executive committees were chosen. It remains unknown whether such selection takes place through unanimous nomination, or election; and if the latter, how many votes were polled in favour of those selected.

The debate over defection can be located in the wider one over the relationship between elected representatives and their constituents. Political theorists have long debated whether representatives are best understood as trustees or delegates. The trusteeship model sees representatives as free to engage in political actions with adequate leeway on behalf of their constituents provided that they shall be held accountable ex post through elections. On the delegate model, representatives are elected to try and execute a mandate given to them by their constituents. They are not free to engage in whatever political actions they see fit, but must advocate and attempt to secure their constituents’ wishes. There might of course, be a clash with other constituents’ wishes, or turn out to be contextual limitations to how far representatives can do this. However, they are required to adhere as closely as possible to what their constituents elected them to do.

One might defend the anti-defection law as a component of the delegate model. On this explanation, representatives are elected by constituents to demonstrate adherence to political parties through which they have been chosen. The mandate of the representative lies in ensuring that the party’s platform, as determined by the organisation’s leadership is fulfilled as far as possible. On the other hand, we may even defend the anti-defection law as a component of the trusteeship model. On this reading, the agent to which leeway extends in fulfilling constituents’ wishes is the party and not the representative herself. Thus, we ought to give adequate room to parties to operate in whichever way they see fit in order to execute their platform insofar as they are accountable later through elections. The party’s control over the representative is a part of the leeway afforded to it.

I suggest that such defences of the anti-defection law would be misguided for at least two reasons. Firstly, any appeal to either a pure trusteeship or delegate model appears misguided. As constituents, we often work with both models in choosing our representatives. Thus, I might choose the Aam Aadmi Party, viewing my vote as having delegated it to enact a Jan Lokpal law. On the other hand, I may remain indifferent or unsure of my stand on its policies with respect to monitoring of public schools. I find it sufficient that I have a vote that I can exercise later to reward or punish what it decides to do, but do not hold a fixed view on the matter for myself. Further, it might also be that I amend my delegate-view as a result of the Aam Aadmi’s political actions. The party may decide to not execute the Jan Lokpal law, and explain that there are good reasons for not doing this. I may change my mind as a result of their explanation even though I originally viewed my vote as having delegated the party to enact that law. Therefore, the appeal to pure delegate or trustee models to defend the anti-defection law are mistaken because (a) it is unclear that constituents subscribe exclusively to one view (b) whatever stance constituents take on their vote is itself subject to change as a result of the political process.

Secondly, the emphasis on the party’s wishes to the complete exclusion of the choices of individual legislators does not square with elements of the democratic process. We do, after all, elect individual legislators belonging to certain parties, rather than voting for a party and allowing it to choose parliamentarians in its own wisdom depending on its vote-share. We also care about whom we vote for, as is evident in processes requiring scrutiny of individual candidates, their antecedents, and their wealth. It seems strange that we would invest as much in the individual characteristics of representatives when, at the end of the day, they are bound by the wishes of their party’s leadership.

One might now suggest that my argument does not provide compelling evidence for favouring complete autonomy for legislators. It might be true that we do not adopt pure trustee or delegate models in electing representatives. But it might be that on this particular choice—adherence to the party’s platform—we did, indeed, view our vote as an act of delegation. It might be that we do care about individual features of representatives, but we also elect them qua members of a party. My argument so far only seems to have led to further doubt in relation to the relationship between parties, representatives and their constituents. I will now argue that there is one way of resolving the debate: through a democratic process rather than a philosophical one.

It seems that the reason why debates over trustee versus delegate models are inconclusive is because the matter is not one that should be entrusted to a purely philosophical debate. Rather, it is precisely the kind of matter that democratic processes are intended to resolve. Whether legislators should lose their seat for voting against party lines or not seems precisely the kind of matter that voters ought to be entitled to determine since their can be reasonable disagreement on this issue. So far, it seems that my argument leads to the conclusion implied by the anti-defection law: if legislators defect from their party, they ought to face re-election. However, this does not follow from the principle sketched above. Contrary to the the Supreme Court’s assertion in Kihoto Hollohan, that “What might justify a provision for recall would justify a provision for disqualification for defection”, there is a distinction between the two.

Giving persons the ability to determine whether or not I have acted in accordance with their wishes does not require asking them this on every occasion. After all, it might be that my wish is precisely that I do not have to offer my judgment on each particular occasion. Rather, one need only provide persons the choice of offering their judgment. Thus, there is a difference between constituents having to give their judgment on whether their defected MP still represents them, and between constituents having the choice to give their judgment. The former results in an election being triggered as soon as the MP defects from the party. The latter allows constituents to trigger an election if they believe they are no longer represented as a result of the MP’s defection. The former is more consistent with democratic principles since it does not take a stand on the delegate or trustee model, instead leaving matters to the electorate. Unlike the pure trustee model, it does not leave constituents merely with the option of offering their judgment at the next electoral cycle. Rather, it affirms that a defection might be a worthy ground for loss of the MP’s ability to represent constituents at a particular moment. On the other hand, unlike the delegate model, it does not suggest that defection necessarily disqualifies MPs from being seen as representative of their constituents’ wishes. Instead, it affords them leeway to claim that their defection was an extension of their role as their constituents’ representatives—as long as their constituents do not repudiate this claim and ask to hold them to account.

As a result, one way out of the debate on defections seems to be awarding citizens a right to recall representatives where defection counts as one of the grounds for triggering recall. Does this move not threaten the political stability and social utility of political parties as the Court argued in Kihoto Hollohan? Firstly, such fears seem unfounded once one surveys the several democratic systems where parties continue to thrive in spite of defections. Secondly, such an argument ignores the considerable power parties anyway enjoy over their legislators, for instance, through the possibility of denying ministerial berths of future tickets for elections. Finally, my proposal sketched here also ensures that defection comes with an additional cost: the fear of facing a recall election. This makes it likelier that legislators would expose themselves to such risk only when such defection is perceived as consistent with their constituents’ demands rather than on extraneous grounds.

Specifying the proportion of constituents needed for triggering recall elections, and other legitimate grounds for  doing so is beyond the scope of this piece. Further, I will also refrain from assessing whether or not defection in a trust vote ought to be subject to a possible recall or the more drastic measure of by-election. This is because one might suggest that there are good practical reasons for disqualifying defectors in trust votes since these have more severe consequences for the stability of government, and it isn’t possible to curb corrupt practices. One might also argue that even though legislators can reasonably claim disagreement upon particular moves of the party, wholesale rejection of party membership ought to be subject to a greater threshold of scrutiny. However, even in this more limited form, the option of recall elections on grounds of defection would be more consistent with democratic principles than automatic disqualification for such a move.

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