Anti-Defection Law

Syllabus: GS 2:Indian Constitution: Parliament and State Legislature

REFERENCE NEWS

The Speaker of the Maharashtra Assembly is currently juggling his responsibilities of presiding over the Assembly’s winter session alongside hearing the disqualification petitions under the Anti-defection Law against the rival factions of the Shiv Sena.

BACKGROUND

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 52nd 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 91st 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.

MERITS OF ANTI-DEFECTION LAW

• Prevents Defection: It is a tool to prevent defection by providing punitive measures. For instance, disobeying a three-line whip can put the lawmaker’s membership of the House at risk.
• Ensures stability: It increases stability of the Government by ensuring the legislators do not defect to other party.
• Promotes Party Discipline: It promotes party discipline as legislators have to stick to party policies and party whip.
• Reduces Political Corruption: It is expected to reduce political corruption by preventing horse- trading. Indian Politics has been a witness to “Aya Ram Gaya Ram” form of politics which was premised on the fact that the loyalty of legislators could be bought and sold.
• Promotes citizen trust in elected legislators: Voters exercise their preference for a set of policies espoused by contesting candidates of a party. Anti-defection law ensures candidate is loyal to citizens voting for him.
• Improves Governance: It frees government from challenge of defection and instability. Thus, the government can fully concentrate on governance and administration.
• Realignment of parties in House: It promotes realignment of political parties in the House. The law does it through a democratic process by allowing merger of political parties.
• Reduces expenditure on frequent elections: The anti-defection law reduces the scope of irregular defections by curbing political defections. Thus, it prevents the non-essential expenditure on frequent elections.
• Constitutional recognition to Political Parties: Political parties play an important role in parliamentary democracy. The anti-defection law gave recognition to the political parties in the Constitution for the first time.

DRAWBACKS OF ANTI-DEFECTION LAW

• Violates freedom of expression: The Anti defection Law forces the individual legislators to follow party whip. It thus interferes with the individual members freedom of speech and expression by curbing dissent against party policies or party whip.
• Lowers accountability of elected candidate towards his electorate: Following party diktat every time, the legislator cannot vote in line with his conscience, judgements and interest of his electorate. It lowers elected representative accountability towards his electorate. Thus, anti-defection law breaks the link b/w the elected legislator and his electors.
• Weak Oversight: The law weakens the legislator’s oversight on executive action as they are bound by party whip.
• Against Internal Party Democracy: The law removes the need for the govt. to build broad consensus for its decisions/ policy making. The ruling party can ensure the support of each of its MP by issuing a whip. Thus, it works against internal party democracy.
• Proliferation of Small political parties: The law has led to the birth of small political parties out of existing ones, primarily in order to bypass the law. This has further resulted in the formation of a number of unstable coalition government.
• Individual vs Group Defection: The law allows group defection by providing exception in the law for merger between political parties. But it doesn’t allow individual defections. This distinction is irrational.
• Discrimination between a nominated and an independent member: An independent member (Member not belonging to any political party) of the house becomes disqualified if he joins a political party after the elections. But a nominated member of the house becomes disqualified if he joins any political party six months after his nomination to the house. This discrimination between the nominated and the independent member of the house is considered to be irrational.
• Bias in decision making authority: The presiding officer may not be impartial due to political bias towards a political party. Moreover, the presiding officer lacks adequate legal expertise to exercise quasi-judicial powers.

VAGUENESS IN THE LAW & COURT JUDGEMENTS

WAY FORWARD

Thus,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: For Anti-Defection Law to be effective, the power to decide on disqualification cases must be vested in an independent tribunal.Comment. (15M, 250W)