Anti Defection Law

Context

India’s first Member of Parliament to have been disqualified from the Lok Sabha has now been disqualified as an MLA in Mizoram. Mizoram Assembly Speaker disqualifies Zoram People’s Movement MLA Lalduhoma.

Ground for disqualification:

The disqualification was on the ground that Mr. Lalduhoma had declared himself as a representative of the Zoram People’s Movement (ZPM) despite being elected as an independent candidate from the Serchhip Assembly constituency.

He lost the character of an independent legislator because of the declaration.

What is the anti-defection law?

The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act.

It lays down the process by which 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. The law applies to both Parliament and state assemblies.

When can a member be disqualified?

• 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.

However, 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.

Decision of the Presiding Officer is 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.

Various Recommendations to overcome the challenges posed by the law:

Dinesh Goswami Committee on electoral reforms:

Disqualification should be limited to following cases:

• A member voluntarily gives up the membership of his political party.
• A member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence. Political parties could issue whips only when the government was in danger.

Law Commission (170th Report):

• Provisions which exempt splits and mergers from disqualification to be deleted.
• Pre-poll electoral fronts should be treated as political parties under anti-defection
• 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.

Anti Defection Law

Part of: GS-II- Polity (PT-MAINS-PERSONALITY TEST)

Recently, some of the sitting MLAs in the Manipur government defected to the opposition creating instability in the state's polity. This politics of defection in Manipur is not unique, there have been some other recent examples of defection in Karnataka, Madhya Pradesh, Arunachal Pradesh and Uttarakhand.

For a very long time, the Indian political system was impacted by political defections by members of the legislature. This situation brought about greater instability and chaos in the political system.

Thus, in 1985, to curb the evil of political defections, the 52^nd constitution amendment act on anti-defection was passed and the 10th Schedule was added in the Indian Constitution.

However, the recent examples of defection in the Indian polity show that the law needs a relook in order to plug the loopholes and achieve a balance between the rights of legislators and interests of legislative stability.

Issues

Subversion of electoral mandates: Defection is the subversion of electoral mandates by legislators who get elected on the ticket of one party but then find it convenient to shift to another, due to the lure of ministerial berths or financial gains.

• Affects the normal functioning of government: The infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous defections by the legislators in the 1960s. The defection leads to instability in the government and affects the administration.
• Promote horse-trading: Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.

91^st Constitution Amendment Act-2003

• It aimed at limiting the size of the Council of Ministers to debar defectors from holding public offices, and to strengthen the anti-defection law.
• Earlier, a defection by one-third of the elected members of a political party was considered a ‘merger’. The amendment changed it to at least two-thirds.

Kihota Hollohon vs. Zachilhu (1992)

• In the judgment, the Supreme Court clarified that the 10^th 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

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.

What to do?

• 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.

Conclusion

Though due to anti-defection law, political instability caused by the frequent and unholy change of allegiance on the part of the legislators of our country has been contained to a very great extent, yet there is a need for a more rationalised version of anti-defection laws which will help establish a truly representative democracy.

GS-II Paper: Anti-Defection Law

What is Anti-Defection Law?

The Tenth Schedule of the Indian Constitution is popularly known as the Anti-Defection Act. The original constitution had no such provisions. It was included in the Constitution in 1985 by the Rajiv Gandhi government. The main intent of the law was to deter “the evil of political defections” by legislators motivated by the lure of office or other similar considerations.

Grounds of Disqualifications:

• If an elected member voluntarily gives up his membership of a political party.
• If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorised to do so, without obtaining prior permission.

Some points regarding Anti-Defection:

• Articles 102 (2) and 191 (2) deal with anti-defection.
• The intention of the provision is to check the corruption/horse-trading in parliament/ to check the popular phenomenon “Aaya Ram Gaya Ram “ in the Indian polity which started in 1960’s. Note: The intention was never “to bring stability” to governments.
• The law disallows MPs/ MLAs to switch parties after elections, make the members follow the whips issued by their party.
• It also applies to a nominated member if he/ she joins a political party after 6 months of nomination and to an independent candidate if he/she joins a party after the election.

Is disqualification under anti-defection law judicially reviewable?

The speaker/ chairman of the house is the authority to decide on defection cases. Speaker sits as a tribunal while deciding on defection cases. 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. However, the decision can be brought to court after Kihoto Hollohan case of 1992.

The law states that the decision is final and not subject to judicial review. The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.

GS-II Paper: Anti-Defection Law

What is Anti-Defection Law?

The Tenth Schedule of the Indian Constitution is popularly known as the Anti-Defection Act. The original constitution had no such provisions. It was included in the Constitution in 1985 by the Rajiv Gandhi government. The main intent of the law was to deter “the evil of political defections” by legislators motivated by the lure of office or other similar considerations.

Grounds of Disqualifications:

• If an elected member voluntarily gives up his membership of a political party.
• If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorised to do so, without obtaining prior permission.

Some points regarding Anti-Defection:

• Articles 102 (2) and 191 (2) deals with anti-defection.
• The intention of the provision is to check the corruption/horse trading in parliament/ to check the popular phenomenon “Aaya Ram Gaya Ram “ in the Indian polity which started in 1960’s . Note: The intention was never “to bring stability” to governments.
• The law disallows MPs/ MLAs to switch parties after elections, making the members follow the whips issued by their party.
• It also applies to a nominated member if he/ she joins a political party after 6 months of nomination and to an independent candidate if he/she joins a party after the election.

Is disqualification under anti-defection law judicially reviewable?

Speaker/ chairman of the house is the authority to decide on defection cases. Speaker sits as a tribunal while deciding on defection cases. 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. However, the decision can be brought to court after the Kihoto Hollohan case of 1992.

The law states that the decision is final and not subject to judicial review. The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.