Issues in the Working of Anti-Defection Law – Explained, pointwise

Introduction

There has been a political turmoil in the State of Maharashtra over the last few days. The incumbent Chief Minister of Maharashtra had resigned on June 29, and the new Chief Minister was sworn-in on June 30. The new Government has to pass the floor test very soon. These political developments have brought the Anti-Defection Law into limelight once again. The law was enacted to eliminate political defections by the legislators. However, on numerous occasions the law has proved to be ineffective in curbing defections. Political experts are calling for amending the law to address the shortcomings.

What are the conditions for disqualification of a Legislator under the Constitution?

Article 102/191 of the Constitution of India lays down the grounds under which a Member of Parliament/Member of Legislative Assembly may be disqualified from being a member of the house.

The first part of Article 102 elaborates several instances when such a disqualification may be done: (a) If the person holds any undeclared office-for-profit under the Government; (b) If he is declared to be of unsound mind by a competent court; (c) If he is an undischarged insolvent etc.; (d) Voluntarily acquires the citizenship of a foreign State; (e) Disqualified by or under any law made by Parliament.

The Second part of Article 102 (and 191) gives authority to the Tenth Schedule of the Constitution to disqualify any member. It is this Tenth Schedule that is popularly known as the anti-defection law.

What is Anti-Defection Law?

The Tenth Schedule of the Constitution, commonly known as the Anti-Defection Law, was introduced in 1985 by the 52nd Constitutional Amendment.

‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group”. 

The anti-defection law was enacted to ensure that a party member does not violate the mandate of the party. In case he does so, he will lose his membership of the House. The law applies to both Parliament and State Assemblies.

It provides for the Presiding Officer of the legislature to disqualify any defector on a petition by another member. Grounds for Disqualification:  (a) A member voluntarily giving up membership of the party on whose symbol he got elected; (b) A member violating a direction (whip) issued by his party to vote in a particular way or to abstain from voting; (c) A member who is independently elected joins any party; (d) Any nominated member joins any political party after the end of 6 months.

It also states that anyone disqualified under the Tenth Schedule would also be automatically disqualified from a ministerial post. 

Exceptions: Under Paragraph 4 of the Tenth Schedule, disqualification on account of defection will not apply in case of a merger of one party with another. A valid merger occurs when two-thirds of the party’s total elected strength agrees to the merger. Paragraph 3, which allowed the use of a split (1/3rd members) to avoid disqualification for defection, was deleted by the Constitution (91st Amendment) Act, 2003.

What is the significance of Anti-Defection Law in Parliamentary Democracy?

It is important to keep a check on corruption/horse trading in parliament, thus curbing the popular phenomenon of “Aaya Ram Gaya Ram” in the Indian polity of the 1960s. It prevents shifting of party allegiance by the members, which provides stability to the government.

It also promotes party discipline by ensuring that the elected candidates remain loyal to the party.

What are the issues in the functioning of the Anti-Defection Law?

Ambiguity over Merger Clause: The confusion is about the use of terms ‘Political Party’ and ‘Legislature Party’. It is not clear whether political parties should merge amongst themselves before the merger of elected members (Legislature Party) of two distinct parties.

The merger envisaged in Paragraph 4 of the Tenth Schedule is a two-step process. Under this, one political party first merges with another, and then the legislators accept the merger.  However, the second sub-paragraph (of Paragraph 4) says that a party shall be “deemed” to have merged with another party if not less than 2/3rd of the members of the legislature party concerned have agreed to such merger.

The ambiguity is that whether the merger of the Legislature Party would deemed to be the merger of the Political party as well. Legal experts from the Vidhi Center of Legal Policy argue that the clause seems to be creating a “legal fiction” so as to indicate that a merger of 2/3rd members of a legislature party can be deemed to be a merger of political parties. Even if there is no actual merger of the original political party with another party. 

Partisan Role of Presiding Officer: The Speaker/Chairperson of the House is the key authority to take decisions on the disqualification issue. It is often seen that when the aggrieved party moves for disqualification, Speakers choose not to act, thus formalizing the defection.

No time limit to decide on disqualification: The Speaker/Chairperson is expected to give a prompt decision on disqualification under the Tenth Schedule; however no strict time limit has been prescribed. 

In Manipur, for instance, 7 MLAs of one party had joined another party shortly after the 2017 Assembly election. One of the defecting member became a Minister as well. However, the Speaker did not act on petitions to disqualify the Minister for over two years. In 2020, the Supreme court used its extraordinary powers and removed the Minister concerned, from the Cabinet and barred him from entering the Assembly.

Defection through Resignation: In 2019, some members submitted resignation letters to escape disqualification proceedings. The Supreme Court ultimately ruled that the Speaker has the authority to verify if a resignation is voluntary and genuine, but it is constitutionally impermissible for the Speaker to take into account extraneous factors while considering the resignation. In other words, once it is clear that a member is resigning out of free will, the Speaker is bound to accept it.

Freedom of Speech of Legislators: One of the condition for disqualification is violation of whip issued by the Political Party to vote in a particular manner. Critics argue that this greatly limits the ability of a member to exercise her free opinion on the floor of the House on certain proposed legislations

Why are there calls to scrap the Anti-Defection Law?

First, the law has failed to curb defections in recent years and lacks any deterrence effect on legislators. Further, re-election in by polls shows public’s acceptance of defecting legislators.

Second, the criticisms leveled against the exemption given to splits in political parties – that it facilitated defection by groups – applies equally to mergers. The present law forbids individual defections but facilitates group defections.

Third, the MPs or MLAs are supposed to act as per party’s command and not by their own judgement. This undermines representative democracy as they are unable to put forward the demands of people.

Fourth, the scope of defection is very wide as it is applicable on every legislation (violation of whip). It is also applicable to members of the Rajya Sabha and Legislative Councils which don’t have a say in the stability of the government.

What should be the approach going forward?

First, the Supreme Court needs to adjudicate whether an actual merger of Political Parties is a condition precedent for the merger of Legislature Parties (i.e., the should the merger of Legislature Parties be deemed as merger of Political Parties).

Second, the Speaker/Chairperson should give decisions within 3 months as advised by the Supreme Court. Further, an independent tribunal can be created in the long run to decide cases under the Tenth schedule. This would effectively reduce partisan role played by the Speaker.

Third, the Law Commission in 1999 and the National Commission to Review the Working of the Constitution (NCRWC) in 2002 had recommended to delete the clause related to merger (Paragraph 4, Exception to Disqualification). Parliament should consider, debate and decide on the recommendations.

Fourth, the Dinesh Goswami Committee Report recommended that disqualification of a member should only be attracted in the event a member violates a whip on matters related to Motion of Vote of Confidence, a No-confidence Motion, Money Bill or a Motion of Vote of Thanks to the President’s address.

Conclusion

As defections continue unabated and Speakers refrain from acting on these developments based on their political loyalties, there is a strong case to reform the anti-defection law. Redefining the merger clause, shifting the adjudicatory power from the Speaker to some other credible authority and even dispensing wholly with the law are measures that jurists have suggested. Additionally the Parliament must re-consider the clause related to the whip to ensure that the Right to Freedom of Speech of the Members of Legislature is not impacted.

Source: The Hindu, The Hindu, The Hindu