Anti-defection law

JAN 4

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WHY IN NEWS?

There has been calls from various quarters to amend the provision related to the anti-defection law mentioned in the tenth schedule of the Constitution.

CONSTITUTIONAL PROVISIONS:

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. For this purpose, it made changes in four Articles of the Constitution and added a new Schedule (the Tenth Schedule) to the Constitution.

  • DISQUALIFICATION:

Members of political party

Independent members

Nominated members

Becomes disqualified if he:

(a) Voluntarily gives up his membership of such political party; or

(b) Votes or abstains from voting in the House contrary to any direction issued by his political party, without obtaining prior permission and such act has not been condoned by the party within 15 days

Becomes disqualified if he joins any political party after such election

Becomes disqualified if he joins any political party after the expiry of six months from the date on which he takes his seat in the House. This means that he may join any political party within six months of taking his seat in the House without inviting this 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.
    • Hence, defection has no immediate and automatic effect.
  • 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, the questions shall be referred for the decision of such member of the house as the house may elects in this behalf.
    • His decision on the matter will be final.

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 the Supreme Court has 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: There is a wider meaning of the words “voluntarily giving up membership”. Members who have publicly expressed opposition to their party or support for another party were 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.
  • The Speaker of a House does not have the power to review his own decisions to disqualify a candidate. Such power is not provided for under the Schedule, and is not implicit in the provisions either
  • 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. 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.

BENEFITS:

  • 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.

 

 

ISSUES:

The main intent of the law was to combat “the evil of political defections”. The law certainly has been able to curb the evil of defection to a great extent. However over the years there have been criticisms over the disqualifications and several issues in relation to the working of this law which need to be discussed. The recent examples of defection in state Assemblies and even in Rajya Sabha bear this out.

  • Irrational features:
    • It does not make a differentiation between dissent and defection. It curbs the legislator’s right to dissent and freedom of conscience.
    • Its discrimination between an independent member and a nominated member is illogical. If the former joins a party, he is disqualified while the latter is allowed to do the same.
    • Its distinction between individual defection and group defection is also arbitrary.
    • It does not provide for the expulsion of a legislator from his party for his activities outside the legislature.
  • No time limit:
    • The law doesn’t touch on the time period for the speaker to decide on disqualification.
    • Speakers are not legally bound to take a decision within a timeframe and this discretion has helped ruling parties on various occasions in several states.
    • In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, had broken away in small groups gradually to join the ruling party. In some of these cases, over time, more than 2/3rd of the opposition has defected to the ruling party.
    • While the Speaker’s decision is subject to judicial review, the courts cannot interfere in the process unless the speaker takes a decision.
  • Impinges on the right of free speech of legislators:
    • The law restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. 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.
    • This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.

 

  • Doubts regarding “voluntarily” resignation from a party:
    • There is no clear definition of voluntary resignation. They are derived from numerous judicial proceedings.
    • 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
    • In many occasions, because of this lack of clarity, decisions by the presiding officer have come under criticism
  • Discourages active democracy:
    • Political parties issue whips to MPs on how to vote on most issues, irrespective of the nature of the issue. It affects the independence of MPs/ MLAs, as their/their electorates’ views are given no priority.
    • This encourages passivity among the elected members, as they have become mere numbers on paper. The law breaks the accountability link between the elected representative and the voter. Legislators can now claim that they voted in a particular manner because their party required them to do so.
    • The Anti-Defection Law also weakens the systems of checks and balances inherent in a parliamentary democracy where the executive is accountable to the legislature and the legislature keeps oversight on the executive's actions.
  • Questions over decisions of the presiding officer:
    • Vesting of decision-making authority in the presiding officer is criticised on two grounds:
      • She/he may not exercise this authority in an impartial and objective manner due to political exigencies
      • She/he lacks the legal knowledge and experience to adjudicate upon the cases

WAY FORWARD:

  • What is lacking in the present legal system are provisions for ensuring intra-party democracy in a political party. Necessary amendments are required in the Representation of People Act to make political parties more democratic in the selection of their leadership. 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.
  • It is undesirable and against all modern civilised notions of justice that the Speaker be the adjudicating authority on the issue of disqualification. As pointed out by the 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. Other experts have recommended the creation of special committees, with legislative members and subject experts in them, to look at cases of defection.
  • The law restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. Several experts (Dinesh Goswami Committee on electoral reforms 1990. Law Commission 170th report etc) have suggested that the law should be valid only for those votes that determine the stability of the government like passage of the annual budget or no-confidence motions
  • The phrase “voluntarily giving up membership” is too vague and needs comprehensive revision.
  • Parliament can be effective only if individual MPs have a significant role as law makers, and if they can be held accountable for their actions by their electorate. In this regard, the court has suggested that the usage of whips be limited to ensure the freedom of elected representatives. 
  • The events of this year should catalyse a public debate about the need for the deletion of not only the merger provision but also the rest of the anti-defection law. After all, this law continues to threaten the very foundations of our representative democracy.

Practice Question

Q. Parliament can be effective only if individual MPs have a significant role as law makers, and if they can be held accountable for their actions by their electorate. In this regard, critically examine the need to repeal the Anti defection law?