Why there is need to address the issues associated with Anti-defection law?

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.

Issues Related to Anti-Defection Law:

Undermining Representative Democracy: After enactment of the Anti-defection law, the MP or MLA has to follow the party’s direction blindly. This leaves them with no freedom to vote their judgment on any issue and undermines representative democracy.

Undermining Legislatures: The core role of an elected MLA or MP is to examine and decide on a policy, bills, and budgets. Instead, the MP becomes just another number to be tallied by the party on any vote that it supports or opposes.

Undermining Parliamentary Democracy: In the parliamentary form, the government is accountable daily through questions and motions and can be removed any time it loses the support of the majority of members of the Lok Sabha. Due to Anti-Defection law, this chain of accountability has been broken by making legislators accountable primarily to the political party. Thus, anti-defection law is acting against the concept of parliamentary democracy.

Controversial Role of Speaker: In many instances, the Speaker (usually from the ruling party) has delayed deciding on the disqualification. The Supreme Court has tried to plug this by ruling that the Speaker has to decide the case in three months, but it is not clear what would happen if a Speaker does not do so.

No Recognition of Split: Due to the 91st constitutional amendment 2004, the anti-defection law created an exception for anti-defection ruling. According to this, if two-thirds of the strength of a party should agree for a ‘merger’ then it will not be counted as a defection. However, the amendment does not recognise a ‘split’ in a legislature party and instead recognises a ‘merger’.

Proposed Changes:

• One option is that such matters be referred directly to the high court or the Supreme Court for an express judgment -- should be given within a period of 60 days.
• The second option is that if somebody has any difference of opinion with respect to the party or the party leadership, he has the option to resign and seek the fresh mandate of the people.
• These changes envisage the need for an elected representative to be accountable and responsible towards the people.

When was the anti-defection law instituted?

The anti-defection law is contained in the 10th Schedule of the Constitution. It was enacted by Parliament in 1985. It came into effect on 1st March 1985.

For a long time, the Indian political scene was besmirched by political defections by members of the legislature. This situation brought about greater instability in the political system. The infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous defections by the legislators. Legislators used to change parties frequently, bringing about chaos in the legislatures as governments fell. In sum, they often brought about political instability. This caused serious concerns to the right thinking political leaders of the country.

Several efforts were made to make some law to curb defections. Starting from private members’ efforts, Bills were brought in by the government at different times. No Bill could be passed because of one reason or the other. However, the most important reason was that there was no consensus on the basic provisions of an anti-defection law. Members of Parliament were concerned about the freedom of speech in Parliament and other legislatures as they had a fear that too stringent a law on defection would likely curb the freedom of speech (which is a constitutional right) of the legislators. A lot of time was taken before a consensus could be reached on this issue.

Finally, in 1985, the Rajiv Gandhi government brought a Bill to amend the Constitution and curb defection. The 10th Schedule of the Constitution, which contains the anti-defection law, was added to the Constitution through this amendment.

Where this law is open to interpretation?

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.

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.

Who declared that tenth schedule is constitutionally valid?

Kihota Hollohon vs. Zachilhu (1992)- In the judgment, the Supreme Court clarified that the 10th schedule is constitutionally valid. It neither impinges upon the freedom of speech and expression nor subverts the democratic rights of elected members. It also upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs. However, it also held that Presiding Officer’s decisions of disqualification shall be open to judicial review.

Challenges of Anti-Defection Law

Against the true spirit of representative democracy: The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also enforces a restriction on legislators from voting in line with their conscience, judgement and interests of his electorate.

Impedes legislative control on government: The anti-defection law impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership.In short, if legislators are not able to vote on laws independently, they would not act as an effective check on the government. The Anti-Defection Law, in effect, dilutes the separation of powers between the Executive and the Legislature – and centralises power in the hands of the executives.

Role of presiding officer of the house: The law lays down that legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. However, there are many instances when presiding officers play a part with the vested interests of a political party/government in power. Also, the law does not specify a time period for the Presiding Officer to decide on a disqualification plea. The decision thus is sometimes based on the whims and fancies of the presiding officer.

Affects the debate and discussion: The Anti-Defection Law has created a democracy of parties and numbers in India, rather than a democracy of debate and discussion. In this way, it does not make a differentiation between dissent and defection and weaken the Parliamentary deliberations on any law.

How far has the law succeeded in achieving its goal?

The law certainly has been able to curb the evil of defection to a great extent. But, of late, a very alarming trend of legislators defecting in groups to another party in search of greener pastures is visible. The recent examples of defection in state Assemblies and even in Rajya Sabha bear this out. This only shows that the law needs a relook in order to plug the loopholes if any. But it must be said that this law has served the interest of the society. Political instability caused by frequent and unholy change of allegiance on the part of the legislators of our country has been contained to a very great extent. That is a story of success of one of the most important legislation that the Indian Parliament has enacted.

Steps need to be taken

Rational use of the anti-defection law: Several experts have suggested that the law should be valid only for those votes that determine the stability of the government. e.g. passage of the annual budget or no-confidence motions.

Advice of Election Commission: Various commissions including National Commission to review the working of the constitution (NCRWC) have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.

Independent authority to deal with disqualification: Justice Verma in Hollohan judgment said that tenure of the Speaker is dependent on the continuous support of the majority in the House and therefore, he does not satisfy the requirement of such independent adjudicatory authority. Also, his choice as the sole arbiter in the matter violates an essential attribute of the basic feature. Thus, the need for an independent authority to deal with the cases of defection.

Promoting the principle of intra-party democracy: 170^th  Law Commission report underscored the importance of intra-party democracy by arguing that a political party cannot be a dictatorship internally and democratic in its functioning outside. Thus, the parties should listen to the opinions of the members and have discussions on the same. This would give the freedom of speech and expression to its members and promote inner-party democracy.