Anti-Defection Law

IN NEWS:

• Recently, Vice-President M. Venkaiah Naidu expressed concern over loopholes in the anti-defection law and said there is a need to amend the legislation to check mass defection of legislators.

BACKGROUND OF ANTI DEFECTION LAW:

• With the framing of Constitution, India adopted the Westminster System of representative democracy, where the leader who enjoys the majority support is chosen as the head of the government. Here, the loyalty of the legislators to the constituency is given primacy.
• However, during late 1970s, the country witnessed nefarious floor crossing by legislators.  Legislators used to change parties frequently, bringing about chaos in the legislatures. 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.
• Starting from private members’ efforts, various bills were brought in by the governments at different times to counteract defections.

• The 32nd Constitution Amendment Bill was introduced for disqualifying defected legislators from holding ministerial births. This Amendment Bill lapsed with the dissolution of Lok Sabha.
• It was followed by the 48th Constitution Amendment Bill with the same tenor and terms of the lapsed Bill.
• At last in 1985, when Rajiv Gandhi became Prime Minister with a large majority, the Tenth Schedule was knitted into the Constitution along with the anti-defection law, through the 52^nd amendment.

FEATURES OF ANTI DEFECTION LAW:

The 52nd Amendment Act of 1985 provided for the disqualification of the members of Parliament and the state legislatures on the ground of defection from one political party to another. It made changes in four Articles of the Constitution and added a new Schedule (the Tenth Schedule) to the Constitution.

• Disqualification:

• Exceptions:

1. If a member goes out of his party as a result of a merger. A merger takes place when two-thirds of the members of the party have agreed to such merger.
2. If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office.

(Note: The 91^st amendment deleted the provision of the Tenth Schedule pertaining to exemption from disqualification in case of split by one-third members of legislature party. It means that the defectors have no more protection on grounds of splits.)

• Deciding authority: Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House. Following the Kihoto Hollohan case (1991), this decision has been made subject to judicial review.

• Rule-making power: The presiding officer of a House is empowered to make rules to give effect to the provisions of the Tenth Schedule. All such rules must be placed before the House for 30 days. The House may approve or modify or disapprove them
• Working: The presiding officer can take up a defection case only when he receives a complaint from a member of the House. Before taking the final decision, he must give the member, against whom the complaint has been made, a chance to submit his explanation. He may also refer the matter to the committee of privileges for inquiry.
• Position of speaker: Whips issued by parties are not applicable to speakers. However, if a question arises on whether the chairman or speaker of a house has become subject to disqualifications under the law, it shall be referred for the decision of such member of the house as the house may elects in this behalf.

JUDICIAL INTERPRETATIONS ON ANTI DEFECTION LAW:

• Kihoto Hollohan vs Zachillhu and Others (1991):
  • SC Constitution Bench declared that the Speaker’s decision on defection was subject to judicial review.
• Ravi Naik vs Union of India:
  • Supreme Court interpreted that there is a wider meaning of the words “voluntarily giving up membership”.
  • In the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.
• G. Viswanathan Vs. The Hon’ble Speaker, Tamil Nadu:
  • Members who have publicly expressed opposition to their party or support for another party are deemed to have resigned.
  • Once a member is expelled, he is treated as unattached member in the house but he continues to be a member of the old party as per the Tenth Schedule.
  •  If he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party.
• Other interpretations:
  • The Speaker of a House does not have the power to review his own decisions to disqualify a candidate.
  • If the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule.

RECOMMENDATIONS OF EXPERT BODIES ON ANTI DEFECTION LAW:

• Dinesh Goswami Committee on electoral reforms (1990)
  • Disqualification should be limited to cases where,
    1. A member voluntarily gives up the membership of his political party
    2. 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.
• 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.
• 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.
• Election Commission
  • Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.

LOOPHOLES OR ISSUES IN THE LAW:

The law has certainly been able to curb the evil of defection to a great extent. However, over the years there have been several issues in relation to the working of this law which need to be discussed.

• Discriminating features:
  • It does not make a differentiation between dissent and defection. It curbs the legislator’s right to dissent and freedom of conscience.
  • It also discriminates disqualification between independent members and nominated member and between individual defections and group defections.
    • The difference between individual and group defection is irrational.
    •  Former is banned and later is legalized, as Vice-President M. Venkaiah Naidu recently said retail is banned, and wholesale is legalized.
  • It does not provide for the expulsion of a legislator from his party for his activities outside the legislature.
• No time limit:
  • Speakers are not legally bound to take a decision within a timeframe. While the Speaker’s decision is subject to judicial review, the courts cannot interfere in the process unless the speaker takes a decision.
  • This discretion has helped ruling parties on various occasions. Eg: In recent years, opposition MLAs in Andhra Pradesh and Telangana had broken away in small groups gradually to join the ruling party. However, the speaker did not take up the matter until more than 2/3rd of the opposition has defected to the ruling party.
• “Voluntarily” resignation from a party:
  • There is no clear definition of voluntary resignation.
  • According to a Supreme Court judgment, “voluntarily giving up the membership of the party” is not synonymous with “resignation”. It 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.
• Discourages active democracy:
  • Political parties issue whips to MPs on how to vote on most issues, irrespective of the nature of the issue.
  • It restricts a legislator from voting in line with his conscience, judgement and interests of his electorate and makes them mere numbers on paper. This encourages passivity among the elected members, and breaks the link of accountability between the voter and the elected representative.
• Questions over decisions of the presiding officer: Vesting of decision-making authority in the Presiding officer is criticized on two grounds:
  1. She/he may not exercise this authority in an impartial and objective manner due to political exigencies
  2. She/he lacks the legal knowledge and experience to adjudicate upon the cases.

• Violation of provisions:
  • The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties.
  • However, this has been ignored by presiding officers on a number of occasions.

SHOULD THE LAW BE REPEALED?

YES:

• Failed to plug defections: Despite the law being in existence for over 3 decades, the issue of political defections and horse trading continues to hamper Indian politics. The recent debacles in Karnataka and Madhya Pradesh are examples.  
• Hinders representative democracy: The law restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. Legislators can now claim that they voted in a particular manner because their party required them to do so.
• Weakens the systems of checks and balances: The law disturbs the balance of power between the executive and the legislature, by constraining the ability of a member to hold the government accountable.
• Absent in major democracies: Mature democracies, such as the US, UK and Canada, do not have an anti-defection law. Among the 40 countries that have an anti-defection law, only six countries have a law that mandates legislators to vote according to party dictum. The remaining countries only disqualify legislators if they are found to resign from their party or be expelled from it.

NO:

• Ensures stability for government and policies: It provides for greater stability in the body politic by checking the propensity of legislators to change parties, by ensuring that candidates remain loyal to the party as well the citizens voting for him.
• Recognition of party system: It gives, for the first time, a clear-cut constitutional recognition to the existence of political parties. Also, it facilitates democratic realignment of parties in the legislature by way of merger of parties and promotes party discipline.
• Reduce corruption and horse trading: It reduces corruption at the political level as well as non-developmental expenditure incurred on irregular elections. It also provides for punitive measures against a member who defects from one party to another, there by discouraging defection
• More concentration on governance is possible. Whips ensure that the government can initiate policy measures and structural changes without fear of members voting against them.

WAY FORWARD:

• The current form of the Anti-Defection Law has proven to be woefully ineffective in achieving its key objective - preventing quid-pro-quo deals and political instability. However, rather than complete abrogation of the law, it is ideal to bring forth amendments to overcome the existing shortcoming.
• Some of the desired amendments can be:
  • As pointed out by the Dinesh Goswami Committee, report of the 170th Law Commission, the President or the Governor, as the case may be, should be made the deciding authority for question of disqualification based on an enquiry conducted by the Election Commissioner.
  • Make the law valid only for those votes that determine the stability of the government, like passage of the annual budget or no-confidence motions. Several commissions such as Dinesh Goswami Committee on electoral reforms 1990 and Law Commission 170th report have suggested the same.
  • Amend the law to include a time frame within which decisions on cases of defections should be taken.
  • The phrase “voluntarily giving up membership” needs comprehensive definition.
  • Remove the distinction between disqualification of elected, nominated and independent members, as well as between individual and group defections.
  • Those elected representatives who resign could be disqualified from contesting elections for a certain period.
• Reforms outside the ambit of the law are also essential to prevent the menace of defection. This could include:
  • Amendments in the Representation of People Act to mandate intra party democracy.
  • Regulate the usage of whips so as to ensure the freedom of elected representatives.
  • Also the Supreme Court said the Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.
  • The Constitution needs to be amended to insert a provision that only the violation of whip issued by a political party following intra-party democracy would entail disqualification of a legislator.
• There are no fool-proof remedies against defection. No degree of tightening of the loopholes can prevent a willing legislator from switching sides. The only way to prevent defection altogether is to get the voters to punish the defector through ballot.

PRACTICE QUESTION:

Q. “Despite its limitations and drawbacks, the Anti-Defection Law framed with all good intentions suffers because of mala fide intent today”. Critically analyse.