By- Mansi Tiwari

From the days of witnessing the scornful chants of “Aaya Ram, Gaya Ram” to the present trend of blatant horse-trading of MLAs, Indian political scenario has been a regular ground for the menace of defection.  The past few years have seen great turmoil in the legislatures of the states of Karnataka, Madhya Pradesh and now most recently, Rajasthan. Brought in the Indian Constitution by the Indian Constitution (Fifty-second Amendment) Act, 1985 (“the Act”) and enshrined in the Tenth Schedule of the Indian Constitution, India’s Anti-Defection Law was enacted by the Parliament to combat the frequent and reckless instances of defection by legislators that led to chaos in the legislatures and wide political instability. A mention also needs to be made of the aims and objectives of the Anti-Defection Law as found in the Tenth Schedule. The very first line of the Statement of Objects and Reasons of the Act reads as follows, “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.” In spite of being a result of a spirited attempt to end the menace of defection, the Anti-Defection Laws in India have been under scrutiny for lacking in certain aspects. The Rajasthan crisis has just been another occasion where the Anti-Defection Laws have come into play and been questioned.

In June 2020, Rajasthan’s Deputy Chief Minister Sachin Pilot, supported by 18 other MLAs, rebelled against Chief Minister Ashok Gehlot and his government. In a response to this rebellion, which was alleged by CM Gehlot to be a BJP supported coup, the rebel MLAs, including Pilot were issued notices by the Rajasthan Assembly’s Speaker C.P. Joshi to explain their side of the story after a complaint was made to initiate disqualification proceedings under the Anti-Defection Law. The rebel MLAs then approached the Rajasthan High Court that granted them relief by by ordering status quo on the disqualification notices issued by the Speaker. This essentially means that the Speaker will not be able to proceed with the disqualification even if the MLAs do not submit their replies. The Speaker, Mr Joshi had approached the Supreme Court against the order of the Rajasthan High Court, and as the latest development he has withdrawn his plea. The tussle has finally settled in a truce between the two camps. In this article, we seek to look at the Rajasthan crisis through the lens of the Tenth Schedule, vis-à-vis intra party dissent, power of the Speaker and the role played by the Governor.

The first allegation on the rebel MLAs under the Anti-Defection Law has been that they have violated Section 2(1)(a) of the Act and have thus become liable for disqualification as their conduct indicates that they have voluntarily given up the membership of the Indian National Congress, the party that has formed the majority government in the Rajasthan Assembly. In their petitions filed in the Rajasthan High Court, the rebel camp has argued that the mere expression of dissent against the working of the Chief Minister, without joining any other party cannot be construed as the voluntary giving up of party membership and hence the speaker had no reason to issue disqualification notices by invoking Section 2(1)(a). The petitioners also challenged the constitutionality of Section 2(1)(a) by arguing that it violates their freedom of Speech and Expression under Article 19(1)(a) of the Constitution. Reliance was placed on the Supreme Court’s verdict in Kihoto Hollahan v. Zachillhu and Ors. where it was held in the context of defection by “crossing the floor”. Senior Advocate Harish Salve while making an argument from the petitioners’ side, argued that mere dissent and expression of dissatisfaction could not be equated to crossing the floor and that the actions of the petitioners could not be construed as giving up party membership. Important here to mention, is also the judgement in the case of Ravi S. Naik v. Union of India, where the Supreme Court ruled that the conduct or acts of indiscipline of legislators can be used to infer ‘voluntary giving up of membership.’ However, in the case of   Balchandra L. Jarkiholi and Ors. v. B.S. Yeddyurappa and Ors. the Supreme Court, while setting aside the majority judgement of the Karnataka High Court, upheld the minority opinion of Justice N. Kumar in which he ruled that, what constitutes defection under Section 2(1)(a) of the Tenth Schedule is deserting the party; dissent is not defection and the Tenth Schedule while recognising dissent, prohibits defection.

He also ruled, “It (Intra-party Dissent) only shows an opportunity is given to a political party to respect honest dissent, re-think, retrace its steps and take corrective methods, if its members do not agree with the official line of the party. It is a wake-up call by the members of the party who are in minority, to the party, not to curb internal democracy, stifle dissent…” This particular pronouncement by Justice Kumar is relevant as if the Rajasthan High Court had provided a clean chit to the legislators under Section 2(1)(a) to vote in the probable floor test. The rebellion launched by the 19 MLAs had spiked the probability that the Gehlot government’s confidence in the 200 seat Rajasthan Assembly would be greatly threatened if the opposition, having 76 seats, would have had the support of the rebels, as then only a thin margin would have separated the Gehlot government from fall.  The rebels could have been subject to fresh actions under Section 2(1)(b) of the Tenth Schedule had they not voted as per the directions of the party leadership if and when a floor test was conducted. Thus, even if the Gehlot government would have failed the floor test, the rebel MLAs would still have faced disqualification proceedings under the Anti-Defection Law.

Here comes the role of the Governor, Kalraj Mishra and Articles 174 and 163 that deal with the Governor’s powers to convene the Assembly. CM Gehlot had been insistent with the Governor to convene the Assembly sessions, first, to discuss the strategy to battle Covid-19, and later to prove majority vide a floor test. However, the Governor, using his discretionary powers under Article 163, described the circumstances as “extraordinary” and thus advocated the use of his discretion, instead of complying with the aid and advice of the CM and his Council of Ministers which, as per the Supreme Court, in the case of Nabam Rebia v. Deputy Speaker and Ors., was to be binding on the Governor in the events of summoning, proroguing or dissolving the House. He has twice rejected the CM’s request to convene the Assembly and has thus, again raised questions on the office of the Governor and his allegiance to the Centre, that effectively appoints him by advising the President. The Governor and his powers have often been questioned as effectively going against the idea of Federalism. The Governor though, in theory, is to be a link between the Centre and the States, there have been instances of misuse of his power to aid and cause the imposition of President’s Rule in a State and the same has been aimed to be checked by the Apex Court in various judgements, ranging from S.R. Bommai v. Union of India to Nabam Rebia v. Deputy Speaker and Ors.

Coming to the powers of the Speaker under the tenth schedule, we again will refer to the 1992 judgement of the Supreme Court in the case of Kihoto Hollahan v. Zachillhu and Ors., where using the Basic Structure doctrine, the Speaker’s decisions on defection were made subject to judicial review while earlier the Speaker had the supreme power under the Tenth Schedule. The Rajasthan crisis is also sensational as never before has any Court tried to halt disqualification proceedings even before the Speaker had taken his final decision. Not only has the Rajasthan High Court in this manner, stepped into the Speaker’s arena in a never-seen-before manner but has also been ‘endorsed’ by the Supreme Court on its decision to do the same. The Supreme Court has also observed that the rebel legislators were a manifestation of the voice of dissent in the Assembly and hence they should not be suppressed.

Defection and democracy have been long related to each other; where there are democracies, there is the menace of defection. India is one of the few democracies which bar defection using laws. The Anti-Defection Law is silent on certain important aspects that need greater clarification. For instance, the law does not give any directives as to the course of action to be adopted in case of intra-party dissent. The motive of the Anti-Defection Law mainly is to prevent the defection of legislators by voluntarily giving up membership of a particular party to join a rival party or to establish a new political party and topple the government to form one of their own. The Tenth Schedule cannot be used to silence all dissent within the parties and the initiation of disqualification proceedings against the rebel legislators in Rajasthan by the Speaker of the Assembly can be equated to the violation of their freedom of speech and expression.

The conspiracy to usurp power, the idea of toppling popularly elected governments to gain a steadier footing in the political tussles and voluntarily migrating to a rival party to have more favourable outcomes is what Anti-defection Laws seek to prevent and stop. The Tenth schedule seeks to achieve the protection of democracy against defection but to do so successfully after 35 years of its enactment; it needs to break the silence on some aspects.