Table of Contents
Introduction
Recently, Defense Laws have become a major issue due to the total violation of the country’s rebel laws by leaders. Ever since the country gained independence, the practice of rebellion has been a major issue in India. We can look at, the problem of the Madhya Pradesh Government in March 2020, when Jyotiraditya Scindia and the 22-member MLA (“MLA”) resigned as speaker of the assembly which resulted in their defeat and, as a result, the BJP, which had a large number of seats, came to power. Shivraj Singh Chauhan was elected Prime Minister of Madhya Pradesh. Recently the Deputy Prime Minister of Rajasthan (Sachin Pilot) and 18 other opposition leaders of the congressional party were sent notices for the cause of the rebellion. Notices were issued demanding that they be removed from the executive council, which said they had all insulted the party’s whip by not attending 2 sittings of the legislature.
This article focuses on developing a better understanding of the prospects for heresies, their development through precautionary measures, and appealing punishments if they disregard these laws.
What is apostasy?
The Oxford Dictionary defines Apostasy as an act of leaving your country or political party and joining the opposition.
According to a 1967 sedition committee report, Defector was described as an “elected member of the legislature and assigned to a designated sect of any political party. It can be said that he has rebelled, if after being elected a member of the House of Representatives or in the legislature or in a state legislature or union, and voluntarily relinquishes his allegiance or affiliation to that political party as long as his action is not wrong. as a result of the decision of the party concerned ”
What is the law against apostasy?
The Anti-Rebellion Laws basically provide the grounds on which a Member of Parliament may lose his or her rights as the party’s Elected Representative and as a result, may be removed from the party. These reasons are provided under the Tenth Schedule to the Constitution. The Indian judiciary has repeatedly intervened in various judicial proclamations and has tried to put in place several preconceived notions to promote better politics and healthy competition between the parties.
The Anti-Defense Act states that if a Member of Parliament or a Member of the Legislature:
- You voluntarily give up group membership.
- Voting or abstaining from voting or abstaining from any party whip.
- Join any other organization.
A member will be removed from the party and will not hold the position of nominee or nominee under the group. Therefore, he will lose his position as a Member of Parliament or MLA.
Introduction of the anti-apostasy framework in the Indian Constitution
The Anti-Defense Bill was proposed by Rajiv Gandhi and was unanimously adopted by both houses and came into effect on March 18, 1985, after obtaining the president’s approval.
The Anti-Semitism Principle was added to the constitution in the form of Schedule Tenth of the constitution by amendment 52 of the constitution in 1985. These regulations provide for the dissolution of the Member Parliaments under Section 102 (2) and the Member Legislature under Section 102. 191 (2). Under these constitutional provisions, members of the judiciary may be dismissed if they are removed under the tenth system.
History and the need for anti-apostate laws
There is a well-known phrase “Aaya Ram Gaya Ram” related back to 1967, when Gaya Lal, a two-week ANC leader from the congress to the Janata Party then returned to the conference and went to the Janata Party.
In an article entitled “Aya Ram Gaya Ram- The political of defection” by the Indian Law Institute in 1979, it was stated that during the period 1967 to 1969 more than 1500 factions rebelled and 313 independent rebels out of 12. regions of the country. It is estimated that by 1971, more than 50% of the legislature had moved from one party to another.
The common term used when we read apostasy is “Horse Trading” for members of the legislature, which means the transfer of legislators from one party to another in a financial sense. There could be several reasons for changing teams.
All of these situations forced the government to enact a constitution that would create penalties for those found guilty of such conduct.
Different
Withdrawals under the purpose of Anti-Defection will not apply in the case of division/merger of 1 / 3rd or more party members to another party. It will also not work in the event of a merger i.e. 1 / 3rd or more members are included with any other organization. This is the exception when 1 / 3rd members are however reviewed in the form of 91 amendments to the constitution which subsequently removed the provision of division and now requires 2/3 of party members to join another party. The amendment revised these rules as a result of a mass revolt by members of the legislature and the amendment brought about a change in demand from 1/3 party members to 2/3 members and by removing the provision for party divisions.
All of these situations forced the government to enact a constitution that would create penalties for those found guilty of such conduct.
Bar in the courtroom under the rules of apostasy
Section 7 of Schedule Ten imposes a restriction on the jurisdiction of the court in respect of the dismissal of a member of the House.
This was contrary to the basic building doctrine established by the Supreme Court “in the case of Kesavananda Bharati”. where the basic elements of the constitution were established. Parliament cannot make changes to the doctrine of the basic structure and should therefore be kept intact. In these cases, the Judicial Review feature was changed under regulation 10 and needed further clarification. The creation of freedom had to be accepted by the courts in such a way that, it would give them the power to appeal to the Supreme Court and the High Courts in cases of disputes concerning the review of the speaker’s decision. The power of review was essential to end the ban imposed by the Tenth Amendment which removed the power of appeal in the courts. The power of review is appropriate and without it, the accuracy of the withdrawal made by the speaker’s decision would not have been possible due to the inability of the courts to do so.
Questions regarding court restrictions were asked under the “Kihotov Hollohon v Zachillu” (“KihotoHollohon”) case of 1992. apart from the remedies found under Sections 136, 226, and 227 of the Constitution and as a result, this was amended by attracting clause 2 of Section 368. It was envisaged that, the decision of the Chairperson and Speaker on the withdrawal of members should be taken. is considered legal but subject to a court review. Thus, the case clearly stated that the decisions of the Speaker of the House were lawful and binding but were questionable in the courts.
THAT THE RIGHT TO FREEDOM OF SPEECH AND SPEECHES OF SPEECHES AND RULES IS AFFECTED BY THE TEN SCHEDULE.
The Constitution explicitly guarantees the right to freedom of speech and expression under Article 19 of the Constitution of India, yet it is subject to reasonable limits.
This right is guaranteed by all citizens including legislators and members of parliament, therefore, this is done on the basis of doubts about the validity of Section 2 of the plan (Reasons for withdrawal). It was held by the Supreme Court in the case of KihotoHollohon, that the Tenth Schedule does not invalidate the rights of elected members of parliament and the legislature and, as such, did not violate Sections 105 and 195 of the constitution while holding this set forth by. The Supreme Court said that the provisions of the Tenth Schedule were useful and intended to strengthen the foundations of India’s parliamentary democracy while preventing unethical and unjust political deviations.
Withdrawal on the grounds of voluntary membership
Subsection 2 (1) (a) of the Rebellion Act provides for voluntary membership of members.
In this case, the Supreme Court granted ample opportunity to “resign by voluntary membership”. The court found that a person could voluntarily relinquish his or her membership of a political party even before resigning. Although it is not legal to resign from membership it can be construed as a member’s conduct by voluntarily giving up his or her membership of the political party to which he or she belongs ”.
The act of termination of membership may be disclosed or stated that this is seen in G. Viswanathan &Ors. v. Honorable Speaker Tamil Nadu Legislative Assembly &Ors 1996.
It was suggested that the act of voluntarily giving up membership of a political party could be obvious or meaningful. If a person who is fired or expelled from a party that has been nominated as a candidate is elected and joins another (new) party, it will certainly be tantamount to voluntarily giving up membership of an established political party. as such a member in the election. ”
Power of court to review a speaker’s decision
The Speaker is not immune to any legal review, protection is provided to the speaker by Section 6 of the Tenth Schedule. This was confirmed to Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors. (2007).
In this case, the speaker had not yet received a verdict on the split and accepted the split on the members’ claim. The court further ruled that the dismissal of the application for withdrawal was not merely a misdemeanour but a violation of constitutional obligations.
Contempt for the party whip
What is a Party Whip?
The whip is an order issued by political parties to vote in favour of a party in the Legislature.
In the case of Shri Rajeev Ranjan Singh (Lalan), He did not vote by staying away and proof of his illness was not considered sufficient for his absence from the house. Therefore, there should be enough reason to satisfy the speaker about his absence from the house by the member when he is bound by the whip.
The burden of proof
If specific questions are addressed to a member about his or her willingness to leave the party, the burden of proof that he or she did not intend to leave will remain with the legislature. This point was noted in Ravi S Naik’s decision of the Supreme Court.
Limit on the width of the speaker query
Shrimanth Balasahib Patil v Karnataka Speaker of Parliament (Karnataka law conference case)
In this case, 15 MPs resigned from the conference and Janata Dal Secular resigned. The government fell after this and the speaker fired Members of Parliament for some time until the end of the 2023 session.
Comments made by the esteemed Supreme Court
The decision to withdraw the speaker was upheld by the Supreme Court. However, it was not fully confirmed by the Court and parts of the decision that required time for withdrawal were set aside. The following is noted by the court:
1.“The scope of the Speaker’s inquiry into the acceptance or rejection of a resignation granted by a member of the legislature is limited to assessing whether the resignation was voluntary or sincere. It is unconstitutional for the Speaker to consider any external factors when considering resignation. The Speaker’s satisfaction depends on a legal review ”.
2. It was also found that the speaker did not have the power to define the term of office of a member. Cancellation does not invalidate the speaker’s right to disqualification.
• Horse trading and the corrupt practices associated with apostasy and change of allegiance as a result of seduction or misconduct are not over. Thus, citizens are excluded from stable governments. In these cases, there is a need to strengthen certain factors, so that such anti-democratic practices are discouraged and tested.
Reasons for reviewing the speaker’s decision
In this case, the Supreme Court set out the grounds for reviewing the speaker’s decision.
1. If it violates the constitutional mandate.
2. If the speaker’s decision is incorrect.
3. If it does not comply with the principles of environmental justice and corruption.
Conclusion
The Anti-Defections Act should include rules under which separate committees should be formed to investigate cases of horse trade between the parties and where members of these organizations are found guilty, they should be subject to punitive sanctions. In addition, they should be barred from running in elections, so that these sections do not interfere with the democracy of the country.
This Article is written by:
Name of Author: Simran (currently pursuing B.A.LL.B.(1st year)from Geeta institute of law)
Name Co-Author: Rashi (currently pursuing B.A.LL.B. from Geeta institute of law)
