Anti-defection Law

The strongest part of Indian parliamentary democracy is the Indian public power of electoral utilization in every five years for their adult suffrage for legislative assemblies, local governing bodies, panchayats and parliament. Originally, the Constitution of India carried no reference to political parties and their existence. Since multi-party democracy had not evolved in 1950s and early 1960s, the heat of defections and their implications were not felt. Things however, changed after the 1967 elections. The 1967 elections are thus called a watershed moment in India’s democracy. In 1967, some sixteen states had gone to polls. The Congress lost majority in them and was able to form government only in one state. This was the beginning of coalition era in India. This election also set off a large scale defection. Between 1967 to 1971, some 142 Mps and over 1900 MLAs migrated their political parties. Governments of many states, beginning from Haryana, collapsed. The defectors were awarded with plum ministries in the governments, including Chief Minister-ship in Haryana. In Haryana, one legislator “Gaya Lal” changed party for three times and thus, all defectors used to be called “Aaya Ram-Gaya Ram”.

However, the issue was not addressed immediately. It took further 17 years to pass the anti-defection law in 1985. The 52th amendment of the Constitution in 1985 inserted 10th schedule in the constitution with Provisions as to disqualification on ground of defection.

The purpose, as is obvious, is to curb political defection by the legislators. There are two grounds on which a member of a legislature can be disqualified. One, if the member voluntarily gives up the membership of the party, he shall be disqualified. Voluntarily giving up the membership is not the same as resigning from a party. Even without resigning, a legislator can be disqualified if by his conduct the Speaker/Chairman of the concerned House draws a reasonable inference that the member has voluntarily given up the membership of his party.

Second, if a legislator votes in the House against the direction of his party and his action is not condoned by his party, he can be disqualified. These are the two grounds on which a legislator can be disqualified from being a member of the House.

However, there is an exception that was provided in the law to protect the legislators from disqualification. The 10th Schedule says that if there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified.

Yes, the law was amended in 2003. When it was enacted first, there was a provision under which if there occurs a split in the original political party and as a result of which one-third of the legislators of that party forms a separate group, they shall not be disqualified. This provision resulted in large scale defections and the lawmakers were convinced that the provision of a split in the party was being misused. Therefore, they decided to delete this provision. Now, the only provision which can be invoked for protection from disqualification is the provision relating to the merger, which is provided in Paragraph 4 of the 10th Schedule.

The first ground for disqualifying a legislator for defecting from a party is his voluntarily giving up the membership of his party. This term “voluntarily giving up the membership of his party” is susceptible to interpretation. As has been explained earlier, voluntarily giving up the membership is not the same as resigning from a party. Then what exactly it means? How can one decide that a member of a legislature has voluntarily given up the membership of his party? The Supreme Court has clarified this point by saying that the presiding officer, who acts as a tribunal, has to draw a reasonable inference from the conduct of the legislator.

Conditions of Disqualification

• 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.
• 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.
• If an independent candidate joins a political party after the election.
• If a nominated member joins a party six months after he becomes a member of the legislature.

Power to Disqualify

• The Chairman or the Speaker of the House takes the decision to disqualify a member.
• If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.

Exceptions – Merger

A person shall not be disqualified if his original political party merges with another, and:

• He and other members of the old political party become members of the new political party, or
• He and other members do not accept the merger and opt to function as a separate group.

This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.

Court’s Intervention

All proceedings in relation to any question on disqualification of a member of a House under this Schedule are deemed to be proceedings in Parliament or in the Legislature of a state. No court has any jurisdiction. This was subsequently struck down by the Supreme Court. Currently, the anti-defection law comes under the judicial review of courts.

Various Supreme Court Judgments on Anti-defection Law

Beginning with Kihoto Hollohon vs Zachillhu And Others (1992) case, various provisions regarding anti-defection law have been challenged in the Supreme Court. The Key issues and Supreme Court observations are listed below:

Kihota Hollohon vs. Zachilhu and Others (1993)

• Issue:If the 10th schedule curtails the freedom of speech and expression and subvert the democratic rights of the elected members in parliament and state legislatures.
• SC Judgement: The 10th schedule neither impinges upon the freedom of speech and expression nor subverts the democratic rights of elected members. The 10th schedule is constitutionally valid.
• Issue: Is granting finality to the decision of the Speaker/ Chairman is valid.
• SC Judgement:This provision is valid however, High Courts and the Supreme Court can exercise judicial review under the Constitution. But the Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen.

Ravi S Naik v. Union of India (1994)

• Issue:If only resignation constitutes “voluntarily giving up” membership of a political party.
• SC Judgement:There is a wider meaning of the words “voluntarily giving up membership”. The inference can be drawn from the conduct of the members also.

1. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996)

• Issue:If a member is expelled from old party and he joins another party after being expelled, will it be considered as having voluntarily given up his membership?
• SC Judgement: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 ongoing political crisis in Rajasthan is neither new nor uncommon. Turbulence in governments — involving the “switching of sides” by elected representatives — has been increasingly frequent in recent months. The past year has seen the toppling of two state governments in Karnataka and Madhya Pradesh amid allegations of political defections and horse-trading. There has also been turmoil in Goa and Manipur.

The phenomenon in question — i.e., bringing down an elected government by depriving it of its majority through the defection of Members of the Legislative Assembly (MLAs) — goes back a long way. To resolve this problem, in 1985, the Constitution was amended to include the Tenth Schedule (also known as the anti-defection law). The anti-defection law provides that members of political parties who disobey the whip or vote against the party in a confidence motion, will face disqualification. As recent events have made clear, however, the Tenth Schedule is no longer an effective check on the phenomenon of defection, and an urgent reconsideration is required.

There are a few reasons why this is so. The first is that the defecting MLAs have found a way around the restrictions in the Tenth Schedule. Instead of formally “crossing the floor” or voting against their party in a confidence motion, they resign from the party. This brings down the party’s strength in the House, and the government is toppled. A few months later, when by-elections are held, the same MLAs then stand for election on the ticket of the opposition party, and are returned to the assembly. This, it should be clear, is defection in all, but the most formal sense. Unfortunately, in their recent judgments, the courts have failed to stop this practice (although, arguably, the language of the Tenth Schedule does not leave much room to the judiciary).

The second reason is that no matter how well-drafted a constitutional provision is, ultimately, its implementation depends upon constitutional functionaries acting in good faith. As BR Ambedkar pointed out soon after the framing of the Constitution, every constitutional text can be subverted if those charged with running the affairs of government are inclined to do so.

 

In recent times, it has become clear that the major constitutional actors involved in times of constitutional instability — i.e., the governors and the speakers — do not act in good faith. In every constitutional crisis over the last few years, governors have acted like partisan representatives of the political party that appointed them, and have flouted constitutional conventions with impunity (from deciding which party to call first to form the government in a hung house, to ordering — or refusing to order — floor tests to prove majorities). Thus, despite the fact that the governor — as an unelected functionary — is supposed to play a minimal role in the affairs of the state, the individuals in that position have interfered on behalf of their erstwhile political parties. Speakers have done little better.

Third, the judiciary itself has not proved up to the mark. For example, during the Karnataka crisis last year, the Supreme Court (SC) — while ostensibly passing a “balanced order” — effectively overrode the provisions of the Tenth Schedule. It said that rebel MLAs, whose disqualification petitions were being considered by the Speaker, could not be compelled to participate in the proceedings of the House. The rebels were happy for they did not have to obey the party whip. This reduced the effective majority of the government.

More recently, the Rajasthan High Court effectively injuncted the Speaker of the Rajasthan Assembly from acting upon disqualification notices, despite clear SC precedent to the contrary. As observers have pointed out, if it is the case that horse-trading is in progress, then an indefinite injunction on the Speaker’s ability to act under the Tenth Schedule will only provide further fillip to such actions.

The last — and most under-discussed — aspect is the presence of money in politics. It has been widely reported that huge sums of money are offered to MLAs to desert their parties and bring down the government. This is enabled by the existence of electoral bonds, which allow for unlimited and anonymous funding to political parties. Under the electoral bond scheme, phenomenal sums of money have been donated to political parties over the last two years. Unfortunately, a petition challenging the constitutionality of the electoral bond scheme has been pending in SC for the last two years. Despite multiple election cycles, the apex court has taken no action upon it.

In sum, therefore, the anti-defection law needs to be improved (there have been suggestions, for example, that disqualification or resignation should be accompanied by a five-year-long bar from standing for elections again). More crucially, however, the legally-sanctioned influence of big money in politics must be curtailed. If these steps are not taken, Indian democracy risks dissolving into a sham quickly.