Anti – Defection Law

In News

• Recently, eight of the 11 Congress MLAs in the Goa Assembly defected to the Bharatiya Janata Party (BJP).

Anti-defection Law

• Origin:
  • 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.  
  • The anti-defection law was a response to the similar toppling of multiple state governments by party-hopping MLAs.
  • Parliament added it to the Constitution in 1985. 
• Constitutional Basis:
  • The Tenth Schedule was inserted in the Constitution by the 52nd Amendment Act. 
  • It lays down the process by which legislators may be disqualified on grounds of defection. 
• What constitutes defection?
  • Voluntarily giving up:
    • When legislators elected on the ticket of one political party “voluntarily give up” membership of that party or vote in the legislature against the party’s wishes. 
    • A legislator’s speech and conduct inside and outside the legislature can lead to deciding voluntarily giving up membership.
  • Independent members:
    • The second scenario arises when an MP/MLA who has been elected as an independent joins a party later. 
  • Nominated legislators:
    • The law specifies that nominated legislators can join a political party within six months of being appointed to the House, and not after such time.
  • Violation of the law in any of these scenarios can lead to a legislator being penalised for defection. 
• Applicable to: 
  • The law applies to both Parliament and state assemblies.
• Deciding authority:
  • The Presiding Officers of the Legislature (Speaker, Chairman) are the deciding authorities in such cases. 
  • The Supreme Court has held legislators can challenge their decisions before the higher judiciary.
• How long does it take for deciding cases of defection?
  • The law does not provide a time frame within which the presiding officer has to decide a defection case. 
  • The court in its recent judgement has held that, ideally, Speakers should take a decision on a defection petition within three months.
• Exceptions in Law:
  • Legislators may change their party without the risk of disqualification in certain circumstances. 
    • The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. 
    • In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
• Interpretation by Courts: 
  • The Supreme Court has interpreted different provisions of the law.
  • The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation
    • The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. 
    • However, the Supreme Court 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.
• Decision of the Presiding Officer is subject to judicial review: 
  • Initially it was not subject to Judicial Review:
    • The law initially stated that the decision of the Presiding Officer is not subject to judicial review. 
    • This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.
    • However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
• It affects the ability of legislators to make decisions:
  • The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. 
  • However, this law also 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.

Significance

• The law aims to bring stability to governments by discouraging legislators from changing parties. 
• Anti-defection law tries to bring a sense of loyalty of the members towards their own party. 
• It aims to ensure that members selected in the name of the party are also loyal to the party manifesto and the basic philosophy of the party to which he belongs.

Criticisms

• Ambiguous Nature of Split: 
  • The law punishes individual MPs/MLAs for leaving one party for another but allows a group of MP/MLAs to join (i.e. merge with) another political party without inviting the penalty for defection. 
  • In recent years, opposition MLAs in some states have broken away in small groups gradually to join the ruling party. 
  • The flaw seems to be that the exception is based on the number of members rather than the reason behind the defection.
• Power to the Speaker:
  • One of the major criticisms of this power is that it is not necessary that the speaker has legal knowledge and expertise to look upon and perform such acts in such cases.
• No penalty for political parties:
  • The law does not penalise political parties for encouraging or accepting defecting legislators.
• No Freedom to go against party whip:
  • A political party acts as a dictator for its members who are not allowed to dissent. 
  • In this way, it violates the principle of representative democracy wherein the members are forced to obey the high command.
• Problem with merger provision: 
  • The provision tends to safeguard the members of a political party where the original political party merges with another party subject to the condition that at least two-thirds of the members of the legislature party concerned have agreed to such a merger. 

Views of Committees on Anti-Defection Law

• Dinesh Goswami Committee on Electoral Reforms (1990)
  • Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.
  • The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
• Law Commission (170th Report, 1999)
  • Provisions which exempt splits and mergers from disqualification to be deleted.
  • Pre-poll electoral fronts should be treated as political parties under anti-defection law.
  • Political parties should limit issuance of whips to instances only when the government is in danger.
• Election Commission
  • Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
• Constitution Review Commission (2002)
  • Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term.
  • The vote cast by a defector to topple a government should be treated as invalid.

Suggestions made to improve the law

• Former Vice President Hamid Ansari has suggested that it applies only to save governments in no-confidence motions. 
• The Election Commission of India has suggested it should be the deciding authority in defection cases. 
• The Supreme Court recently said Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.
• Some commentators have argued that the President and Governors should hear defection petitions. 

Conclusion

• The introduction of the Tenth Schedule in the Indian Constitution was aimed at curbing political defections.
• Though the law has succeeded in a reasonable way but due to some of its loopholes, it has not been able to achieve the best it can.

Source: IE