Report No. 255
B. Exceptions to the Law on Defection
5.8. Mere insertion of the Tenth Schedule did not mark an end to the problems arising out of defection. One of the primary reasons for the ineffectiveness of the Tenth Schedule was the provision on 'split'. The 170th Report of the Law Commission made the following observation about the Tenth Schedule:
"The experience of the country with the Tenth Schedule since its introduction has not been happy. It has led to innumerable abuses and undesirable practices. While the idea of disqualifications on the basis of defection was a right one, the provision relating to 'split' has been abused beyond recall."
5.9. Paragraph 3 of the Tenth Schedule originally contained an exception for disqualification on the ground of defection of members in the case of split in the party to which they belonged, provided their strength was not less than one-third of the members of their legislature party in the House.
The intention behind inserting this provision in the Tenth Schedule was the need to provide for such floor-crossing on the basis of honest dissent. Kihota Hollohon v. Zachilhu AIR 1993 SC 412. However, it was noticed that splits were being engineered for the purpose of Paragraph 3 by indulging in the kind of practices which the Tenth Schedule sought to prevent. The Tenth Schedule was criticised for effectively allowing bulk defections while declaring individual defections as illegal.186
186. Mendiratta, supra note 161, at 448
5.10. The Supreme Court tried to impose strict standards for proving a split for the purpose of Paragraph 3 by saying that mere making of a claim would be insufficient, prima facie proof of a split in a political party is necessary to be produced before the Speaker. Jagjit Singh v. State of Haryana, (2006) 11 SCC 1.
The case of Jagjit Singh v. State of Haryana, (2006) 11 SCC 1 was one such instance where the Supreme Court found that no split had occurred in the Haryana unit of the Republican Party of India but the claim of split was only made as an afterthought to escape defection under Paragraph 2(1)(a) of the Tenth Schedule.
5.11. The most scathing indictment of the anti-defection law came across during the open hearings conducted by former Speaker Mr. Shivraj Patil in his decision delivered on June 1, 1993 in the case of a split in the Janata Dal. The Speaker criticised the Tenth Schedule for having been drafted in haste, because of which it is defective and full of lacunae.189 The Speaker also noted that splits were basically unprincipled defections which were allowed to go unchecked, and which would cause the entire electoral system to lose its legitimacy and become dysfunctional.190
189. Kashyap, supra note 178, at 791
190. Ibid., at 791
5.12. Against this background, the Goswami Committee Report in May 1990, the 170th Report of the Law Commission in May 1999 as well as the NCRWC in April 2002 recommended omission of Paragraph 3 of the Tenth Schedule.191 The need to strengthen the law in this regard led to the Constitution (Ninety-first Amendment) Act, 2003, which omitted Paragraph 3 altogether from the Tenth Schedule.
191. Constitution (Ninety-first Amendment) Act, 2003, Statement of Objects and Reasons
5.13. Pursuant to this Amendment, the Fourth Report of the Second ARC on Ethics in Governance noted that:
"The 91st Amendment to the Constitution was enacted in 2003 to tighten the anti-defection provisions of the Tenth Schedule, enacted earlier in 1985. The Amendment makes it mandatory for all those switching political side.- whether singly or in group.- to resign their legislative membership. They now have to seek re-election if they defect and cannot continue in office by engineering a 'split' of one-third of members, or in the guise of a 'continuing split of a party'."
5.14. The Supreme Court, in Rameshwar Prasad v. Union of India and Anr., (2006) 2 SCC 1 also remarked:
"By the 91st Amendment, defection was made more difficult by deleting the provision which did not treat mass shifting of loyalty by one-third members as defection and by making defection altogether impermissible and only permitting merger of the parties in the manner provided in the Tenth Schedule."
5.15. While Paragraph 3 with the exception on split has been deleted, another exception to disqualification of the ground of defection exists in the case of merger of a political party with another political party, as provided under Paragraph 4 of the Tenth Schedule. A party shall be deemed to have merged with another party if not less than two-thirds of the members of the legislature party concerned have agreed to such merger. If such merger takes place, those who do not agree to such merger and opt to function as a separate group in the House are also saved from disqualification, irrespective of their numerical strength.
5.16. The 170th Report of the Law Commission had recommended deletion of Paragraph 4 as well (along with Paragraph 3) in the 'interest of maintenance of proper political standards in the House and also to minimise the complications arising on that account.'193 However, the 91st Amendment (or any other) did not delete the provision on merger and it continues as an exception to the law on disqualification upon defection.
193. LCI, 170th Report, supra note 108, at Chapter IV
5.17. As opposed to instances of split, various mergers of political parties have been legitimately recognised by the Speakers in recent years.194 The requirement that two-thirds of the members of the legislature party need to consent to a merger for it to be considered legitimate is a sufficient safeguard which has prevented the misuse of Paragraph 4. Hence, in the present Report, the Law Commission does not make any recommendation with regard to amendments to Paragraph 4.
194. Kashyap, supra note 178, at 798