By Kenneth Nongsiej
As political parties are warming up for the elections and choosing potential candidates for the 29 seats in the Khasi Hills Autonomous District Council (KHADC), the question that arises in the minds of voters is – Why should I vote? Many regard their votes as pointless, citing that elected members often switch political parties’ post-election leading to instability within the Executive Committee (EC). Historically, there were instances where a member was disqualified under the Anti-Defection Law of the KHADC, but the action was ultimately deemed invalid and the Member was subsequently reinstated. This article seeks to explore the Khasi Hills Autonomous District (Prevention of Defection) Act, 2003, and examine the Gauhati High Court’s judgement that nullified it.
The Khasi Hills Autonomous District Council (KHADC) enacted the Khasi Hills Autonomous District (Prevention of Defection) Act, 2003 on June 23, 2003. It received the Governor’s assent on March 3, 2004, and was subsequently supplemented by the Khasi Hills Autonomous District (Prevention of Defection) Rules, 2005, which were notified on June 30, 2005. This Act was introduced to curb defections and political instability within the District Council.
Under Section 3 of the Act, members could be disqualified on the grounds of defection. Specifically, a member could face disqualification if they voluntarily gave up membership or acted against their party’s directives, violated party directives during voting within the House, without subsequent condonation by their political party within 15 days of the violation.
The Act also included exemptions from disqualification. These applied in cases where a split occurred in the political party, the member’s political party merged with another party, the Chairman and Deputy Chairman voluntarily relinquished party membership during their tenure. Despite its seemingly comprehensive provisions, the Anti-Defection Act and its accompanying Rules are no longer in force. The reasons for their invalidation arises from a crucial legal challenge that happened after the disqualification of (L) H.S. Shylla, a former Chief Executive Member of the KHADC. (L) H.S. Shylla was disqualified from the Council after the Congress party suspended him for contesting Assembly elections against the party’s official candidate. Following his suspension, Shylla filed a writ petition in the Gauhati High Court at Shillong, challenging the validity of the order dated 18.4.2008 issued by the chairman, Khasi Hills Autonomous District Council under section 3 of the said Act disqualifying the petitioner from the membership of the Council
On July 22, 2008, a division bench of the Gauhati High Court declared the Khasi Hills Autonomous District (Prevention of Defection) Act, 2003 and its Rules null and void. The Court ruled that the Act was beyond the powers (ultra vires) conferred by the Constitution of India specifically under the Sixth Schedule.
The judgment highlighted critical constitutional limitations when the High Court observed that the Sixth Schedule provides a framework for the functioning of Autonomous District Councils (ADCs) in tribal areas. However, the power to amend, add, or repeal provisions of the Sixth Schedule rests solely with Parliament. The KHADC being a creation of the Sixth Schedule lacked the authority to curtail the tenure of its elected members through disqualification or other means.
Paragraph 2(6A) of the Sixth Schedule guarantees that the tenure of elected members of District Councils is five years unless dissolved earlier under Paragraph 16. The KHADC’s Anti-Defection Act by introducing provisions for disqualification, effectively sought to curtail this tenure. The Court ruled that such an alteration required Parliamentary amendment under Paragraph 21 of the Sixth Schedule. Thus, the said Act conflicts with the constitutional rights of elected members as it attempts to impose restrictions on their tenure and autonomy without constitutional sanction.
The Gauhati High Court’s decision rendered the KHADC’s Anti-Defection Act invalid and null and void and was accordingly struck down. Consequently, the KHADC and by extension, other Autonomous District Councils under the Sixth Schedule lack the authority to legislate on matters of defection. This legal void has contributed to continued political instability within the KHADC, JHADC and GHADC as members can freely change their political parties without fear of disqualification.
The only way to have a stable EC in the KHADC lies in constitutional reforms. For an Anti-Defection Law to apply, the Parliament must amend the Sixth Schedule to specifically empower District Councils to legislate on matters of defection. Alternatively, Parliament could enact a centralised Anti-Defection Law applicable to all Autonomous District Councils. Until such amendments are made the Anti-Defection Law will remain outside the jurisdiction of ADCs including the KHADC, JHADC and GHADC.
The KHADC’s Anti-Defection Law is a clear reminder of the constitutional restrictions placed on Autonomous District Councils. Despite the upright aim underlying the Khasi Hills Autonomous District (Prevention of Defection) Act, 2003, its invalidation highlights the necessity of legislative reform and constitutional clarity.