The Significance of Political Parties in India

Facts. Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651. A large number of petitions challenged the constitutionality of the Amendment. It was argued that paragraph 7 took away the jurisdiction of the Supreme Court under article 136 and of the High Courts under articles 226 and 227, so that the Bill required ratification by the legislatures of not less than half the States under the proviso to article 368(2) and, not having been ratified, failed altogether; that disqualification for defection violates a representative's freedom of speech, right to dissent and freedom of conscience and destroys a basic feature; that the Speaker, being a party nominee, is not an independent adjudicator; and that the expression "any direction" was unduly restrictive of the freedom of speech.

Held. A Constitution Bench upheld the Schedule in substance and severed paragraph 7.

On paragraph 7: it excludes the jurisdiction of all courts including the Supreme Court and the High Courts and changes the operation of articles 136, 226 and 227, so it required ratification under the proviso to article 368(2). It is severable, and the rest of the Tenth Schedule stands independently, being complete, workable and untruncated by its excision.

On paragraph 2: valid. Its provisions do not subvert the democratic rights of elected members and do not violate their freedom of speech, of vote or of conscience, or any right under articles 105 and 194. They are salutary and intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections.

On "any direction": the words must be construed harmoniously with the other provisions and confined to the objects and purposes of the Schedule. The direction whose violation may entail disqualification is limited to a vote on a motion of confidence or no confidence, or where the motion relates to a matter that was an integral part of the policy and programme on which the party approached the electorate.

On the Speaker: while functioning under the Tenth Schedule the Speaker or Chairman exercises judicial power and acts as a tribunal, so the decision is amenable to judicial review. The finality clause in paragraph 6(1) does not exclude the jurisdiction of the Supreme Court under article 136 or of the High Courts under articles 226 and 227, and the legal fiction in paragraph 6(2) brings the proceeding within article 122 or 212, making it justiciable on the ground of illegality or perversity despite immunity from challenge for irregularity of procedure.

Why this is the significance of parties in Indian law. After 1985 the party is not merely the vehicle by which a candidate reaches the House; it holds the seat. A member who votes against the whip on a confidence motion or on the party's central programme loses their membership of the House. No other association in India has any comparable power over a person's public office.

What follows, and it cuts both ways

In favour. The anti-defection law ended the practice by which governments were made and unmade by legislators changing sides for office, which was so common that the phrase for it entered ordinary speech. Stability improved, and the Court called the provisions salutary.

Against. A legislator who is disqualified for voting against the party cannot function as a representative exercising independent judgment, and the House loses the deliberative character a legislature is supposed to have. Members vote as instructed on everything that matters, so debate cannot change an outcome, which is a real cost and is part of chapter 840's ethical decay.

And the Speaker problem, which the Court identified and could not cure. The person deciding whether a member has defected is elected by the House and in practice belongs to a party. The Court's answer, judicial review for illegality or perversity, addresses the outcome and not the delay: a decision withheld until the term expires cannot be reviewed usefully.

A worked example

A State government has a majority of four. Twelve members of the governing party are dissatisfied with the Chief Minister.

Before 1985 they could have crossed the floor, brought the government down, and joined or formed another, which is what the Amendment was enacted to stop.

After 1985, if they vote against the government on a confidence motion contrary to the whip they are liable to be disqualified, and they lose their seats rather than change the government. The vote will therefore not happen.

What they may lawfully do instead. Persuade within the party; seek a change of leader through the party's own processes; resign, which forfeits the seat but is not a defection; or, if their number is large enough to constitute a merger within the terms the Schedule permits, act together.

And the question a student should notice. Is that a good outcome? The government survives, which is stability; the members' judgment about their own government's leadership is legally irrelevant, which is the loss. The Court held the first justified the second, and reasonable people continue to disagree about it.

Distinctions that carry marks

What this topic is NOT

It is not the claim that parties are mentioned in the Constitution as adopted. They were not, and they entered the text in 1985.

It is not a claim that the anti-defection law abolished defection. It changed its form, and a great deal of litigation concerns resignations, mergers and delayed decisions.

"Any direction" does not mean every direction. Kihoto Hollohan confines it to confidence motions and to matters integral to the party's electoral programme, and an answer that omits this states the law too widely.

Paragraph 7 was not upheld. It was held to require ratification, and was severed, which is why judicial review of a Speaker's decision exists at all.

Quick revision

1. What parties supply: a government commanding confidence; a choice the voter can actually make; an opposition; leadership; aggregation across languages, religions, castes and regions; and continuity.
2. The Constitution as adopted did not mention parties, and they entered its text through the Tenth Schedule in 1985.
3. Paragraph 2 disqualifies a member who voluntarily gives up party membership, or who votes or abstains contrary to any direction without permission and without condonation within fifteen days.
4. Kihoto Hollohan, 1992 Supp (2) SCC 651: paragraph 7 required ratification under the proviso to article 368(2) and was severable; paragraph 2 is valid and does not violate articles 105 and 194, being salutary and intended to strengthen the fabric of Indian parliamentary democracy; "any direction" is confined to a confidence or no confidence motion or a matter integral to the party's electoral programme; and the Speaker acts as a tribunal, so the decision is reviewable for illegality or perversity but not for irregularity of procedure.
5. The significance in one line: since 1985 the party holds the seat, and no other association in India has comparable power over a person's public office.
6. Both sides: it ended government-making by floor crossing, and it removed the legislator's independent judgment from everything that matters.

Test yourself

1. Why are parties indispensable to the working of the Indian Constitution? Because the Council of Ministers is collectively responsible to the House and holds office only while it commands a majority, and no stable majority can be assembled from several hundred individuals without parties. Because a voter chooses one candidate in one constituency and is in fact choosing a government, which is possible only because the candidate carries a label that carries a programme and a prospective head of government. Because scrutiny requires an organised opposition ready to take office. And because a party seeking a majority in India must assemble support across languages, religions, castes and regions.

2. What does paragraph 2 of the Tenth Schedule provide? That a member of either House of Parliament or of a State Legislature is disqualified if they voluntarily give up membership of the political party which set them up as a candidate, or if without prior permission of that party they vote or abstain from voting contrary to any direction issued by it and the voting or abstention is not condoned within fifteen days. It also disqualifies an independent member who joins a party after the election, and a nominated member who joins one after six months from taking their seat.

3. What did Kihoto Hollohan decide? That paragraph 7, which excluded the jurisdiction of all courts, changed the operation of articles 136, 226 and 227 and therefore required ratification under the proviso to article 368(2), and that it was severable so the rest of the Schedule stood. That paragraph 2 is valid and does not violate the freedom of speech, vote or conscience of members or articles 105 and 194, being salutary and intended to curb unprincipled and unethical defections. That "any direction" is confined to votes on confidence or no confidence motions or on matters integral to the party's electoral programme. And that the Speaker acts as a tribunal, so the decision is subject to judicial review for illegality or perversity though not for irregularity of procedure.

4. Why is the narrow construction of "any direction" important? Because on a wide reading a party could disqualify a member for voting against any instruction whatever, which would make the member an agent of the party in every matter and would raise a serious question about the freedom of speech in the House. The Court's construction limits the sanction to a vote on the survival of the government or on a matter that was an integral part of the policy and programme on which the party approached the electorate, on the reasoning that voting against such a direction is a breach of the trust reposed by the electorate. An answer that omits the limitation states Indian law far too widely.

5. Assess the effect of the anti-defection law. It ended the practice by which governments were made and unmade by legislators changing sides for office, and the Supreme Court described its provisions as salutary and as strengthening the fabric of parliamentary democracy. The cost is that a legislator can no longer exercise independent judgment on anything that matters without losing their seat, so debate cannot change an outcome and the House loses much of its deliberative character. And the Court's remedy for a partisan Speaker, review for illegality or perversity, addresses the decision and not the delay, since a determination withheld until the term expires cannot usefully be reviewed.