ANTI - DEFECTION LAW - POLITY
News: The anti-defection law is facing convulsions
What's in the news?
● After long years of legislative meanderings, Parliament enacted the anti-defection law (10th Schedule) in 1985 to curb political defection.
● The volume, intensity, recklessness and uncontrolled venality seen in defections in the 1960s and thereafter almost came to a stop after this.
Key takeaways:
● Defections not only caused the frequent fall of governments but also caused great instability in political parties with power-seeking politicians wreaking havoc on political parties.
● The Supreme Court of India in its first comprehensive judgment in the Kihoto Hollohan case characterised it as a political evil and upheld the right of Parliament to curb this evil through legislative mechanism.
Anti-defection laws:
What is Anti-defection?
● The anti-defection law provides for the disqualification of MLAs who, after being elected on the ticket of a political party, “voluntarily give up their party membership”.
Origin:
● Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.
● The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.
Constitutional basis:
● The Tenth Schedule was inserted in the Constitution in by 52nd Amendment Act, 1985.
Procedure:
● It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
● The decision on disqualification questions on the ground of defection is referred to the Speaker or the Chairman of the House, whose decision is final.
Condition of Defection:
The following are the grounds for disqualification.
A member can be disqualified if:
● A member of a house belonging to a political party:
○ Voluntarily gives up the membership of his political party, or
○ Votes, or does not vote in the legislature, contrary to the directions of his political party (Whip). However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
● An independent candidate joins a political party after the election.
● A nominated member joins a party six months after he becomes a member of the legislature.
Applicable to: The law applies to both Parliament and state assemblies.
Exceptions in Law:
● Legislators may change their party without the risk of disqualification in certain circumstances.
● The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
● In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
Interpretation by Courts:
● The Supreme Court has interpreted different provisions of the law.
● The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation.
● The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’.
● However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.
● In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.
Judicial review:
● Decision of the Presiding Officer is subject to judicial review.
● The law initially stated that the decision of the Presiding Officer is not subject to judicial review.
● This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court. (Kihoto Hollohan case)
● However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
Concerns of Anti-defection law:
1. It affects the ability of legislators to make decisions as the law restricts a legislator from voting in line with his conscience, judgement and interests of his electorate.
2. It also undermines the member’s potential to be an effective legislator. The issuance of party whips reduces a member of the legislature to a mere voting entity in the House.
3. Hence such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
4. Reduces the accountability of the Government by preventing shifting of allegiances.
5. By curbing dissent among the party members, it intrudes upon the member's right to freedom of speech and expression.
Advantages of Anti-defection law:
● The law aims at providing stability to the Government by punishing members in case of any party shifts on their parts.
● Anti-defection laws trying to bring about a sense of loyalty of the members towards their own party, ensuring that the members selected in the name of the party and its support as well as the party manifesto remain loyal to the political party of which he is a member and its policies.
● It prevents breach of trust of people due to defection.
● It curbs political corruption, which is a necessary first step for addressing other forms of corruption in the country.
Challenges of Anti-defection law:
1. Time Limit for Presiding Officer:
● The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea.
● Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.
● There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.
● In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House.
● There have also been instances where opposition members have been appointed ministers in the government while still retaining the membership of their original parties in the legislature.
2. Ambiguous Nature of Split:
● In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken away in small groups gradually to join the ruling party.
● In some of these cases, more than 2/3rd of the opposition has defected to the ruling party.
● In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller groups.
● However, it is not clear if they will still face disqualification if the Presiding Officer makes a decision after more than 2/3rd of the opposition has defected to the ruling party.
3. Defecting to party forming Government after election:
● There have been instances wherein after the declaration of election results, winning candidates have resigned from their membership of the House as well as the party from which they got elected.
● Immediately, they have joined the political party which has formed the government and have again contested from that political party, which appears to be a fraud and goes against the spirit of the democracy and 52nd constitutional amendment.
4. Power to the Speaker:
● One of the major criticisms of this power is that it is not necessary that the speaker has legal knowledge and expertise to look upon and perform such acts in such cases.
5. No Freedom to go against party whip:
● A political party acts as a dictator for its members who are not allowed to dissent.
● In this way it violates the principle of representative democracy wherein the members are forced to obey the high command.
6. Problem with merger provision:
● The provision tends to safeguard the members of a political party where the original political party merges with another party subject to the condition that at least two-third of the members of the legislature party concerned have agreed to such merger.
● The flaw seems to be that the exception is based on the number of members rather than the reason behind the defection.
7. Undervalued legislatures:
● Since the MP or MLA has no freedom to take decisions on policy and legislative proposals, he/she will have no incentive to understand the different policy choices and their outcomes.
● Hence, the core role of an MP to examine and decide on policy, bills and budgets is side-lined.
Recommendations of Committees on Anti-Defection Law:
1. Dinesh Goswami Committee on Electoral Reforms (1990):
● Disqualification should be limited to cases where
○ a member voluntarily gives up the membership of his political party,
○ a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.
● The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
2. Law Commission (170th Report, 1999):
● Provisions which exempt splits and mergers from disqualification to be deleted.
● Pre-poll electoral fronts should be treated as political parties under anti-defection law.
● Political parties should limit issuance of whips to instances only when the government is in danger.
● Election Commission decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
3. Constitution Review Commission (2002):
● Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term.
● The vote cast by a defector to topple a government should be treated as invalid.
Recommendations:
1. On Presiding Officer:
● Various expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.
2. Similar to Office of Profit:
● This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries a remuneration, and has not been excluded in a list made by the legislature).
3. SC Judgement:
● The Supreme Court said Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.
4. Critical times:
● Anti-defection rules should be applied only at the time of a no-confidence motion to save the government.
5. Democracy in the party:
● Most of the time defection results due to the dissatisfaction among the members of the political parties, therefore steps must be taken to strengthen inner party democracy.