Anti-defection law

Introduction

The strength of Indian Parliamentary Democracy lies in its people’s commitment towards being active participants in the electoral foray by utilizing their right to universal adult sufferage for Legislative Assemblies and Parliament, every five years. 

However, in recent times, India has been witnessing some departure from the established conventions whereby elected representatives from one party have been switching sides and helping a party that otherwise lacks the requisite number, to form government. This process of Defection has been defined by Soli J. Sorabjee as “the abandonment or disloyalty to duty or ideology. In political term the ‘defectors’ not only violate the credibility of political party on whose ticket they were elected but also betrays the electors who had voted for them. It commits a breach of faith not only to the party on whose ticket the member has been elected but also commits a breach of faith with electorates whose votes were secured on the basis of affiliation with the party.”

The 10th Schedule was inserted in the constitution to curb this menace of defection and to reduce the power of money used for alluring the elected members to break or topple government and to ensure that elected members remain loyal to the party on whose ticket he/she has been elected as well as electors. 

The anti-defection law in India, technically the Tenth Schedule to the Indian Constitution, was enacted to address the perceived problem of instability caused by democratically elected legislators in India’s Parliamentary System of Government shifting allegiance from the parties they supported at the time of election, or disobeying their parties’ decisions at critical times such as during voting on an important resolution. Such shifting of allegiance was considered to be a symptom of endemic political corruption, which in turn provided some legitimisation for corruption prevalent in other aspects of life in the country.

Prior to the introduction of the anti-defection law, both the central Government of India and the governments of some of its states and territories had experienced instances of perceived instability resulting from legislators changing their political allegiance. By one estimate, almost 50 per cent of the 4,000 legislators elected to central and federal parliaments in the 1967 and 1971 general elections subsequently defected, leading to political turmoil in the country.

A law was sought to limit such frequent defections in India. In 1985, the Tenth Schedule of the 52nd amendment to the Constitution of India was passed by the Parliament of India to achieve this. Following recommendations from many constitutional bodies, Parliament in 2003 passed the Ninety-first Amendment to the Constitution of India. This strengthened the act by adding provisions for disqualification of defectors and barring them from being appointed as ministers for a period of time.

What is the anti-defection law?

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 situation between 1967 to 1971 was so grave that jokingly this phase has been termed as that of ‘AYARAM GAYARAM‘ when as many as 142 MPs and over 1900 MLAs changed their political parties.

 In this context of weakening democratic ethos, there was a dire need to create mechanisms that would discourage these tendencies and discipline the legislators and for this objective on December 8, 1967, the Lok Sabha constituted a high-level Committee (Known as “Committee on Defection”) under the chairmanship of then Home Miniter Y. B. Chavan. The Committee in its report dated January 7, 1969, made certain recommendations for outlawing defections. Keeping in view these recommendations, the Constitution (Thirty-second Amendment) Bill, 1973, was introduced in the Lok Sabha on May 16, 1973, but the Bill lapsed on account of the dissolution of the House. Thereafter, the Constitution (Forty-eighth Amendment) Bill, 1979, was introduced in the Lok Sabha containing similar provisions. But, it was opposed by ruling as well as opposition parties at the stage of introduction of the Bill, resulting in its withdrawal.

The Tenth Schedule was inserted in the Constitution in 1985 with the aim “to curb defection to bring the political stability and to discourage the practice of defection of members from one party to another after their election.” It came into force on March 1, 1985.  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. A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.  The law applies to both Parliament and state assemblies.

The court in Ravi S. Naik case held that “the words “voluntarily given up his membership of such political party” are not synonymous with “resignation” and would have a wider connotation, even in the absence of a formal resignation from membership, an inference could be drawn from the conduct of a member that he had voluntarily given up his membership of the political party to which he belonged.” Thus, the act of voluntarily giving up the membership of the political party, may be express or implied, non-fulfilment of formalities for joining a party is of no consequence.Clause (2) of Paragraph 2 of Tenth schedule provides that an independent member shall be disqualified for being a member of the House if he joins any political party after such election.

To maintain and sustain the process of democratic governance the Fifty-second Amendment Act, 1985, made necessary changes in Articles 101, 102, 190 and 191, besides adding the Tenth Schedule in the Constitution. It contains provisions as to disqualification on the ground of defection along with certain exceptions.

Are there any exceptions under the law?

Yes, 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.

Various expert committees 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.This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries a remuneration, and has not been excluded in a list made by the legislature).

Judgements

On the pattern of Lily Thomas case, the Apex Court should issue directions that the defected person automatically should be treated as disqualified and s/he should not be allowed to be elected for either house at least for 5 years. Such defectors should also not be allowed to be appointed as a minister even for a single day. In addition to this, the benefit of Article 75 (5) and Article 164 (4) should not be available to the defectors. 

In Keisham Meghachandra Singh v. The Hon’ble Speaker Manipur Legislative Assembly & Ors., the Supreme Court has held that “Speaker of the Legislative Assembly should decide on a petition seeking disqualification of a member under 10th Schedule of the Constitution within a period of three months, in the absence of exceptional reasons. The bench also acknowledged the problem of Speakers acting in a partisan manner due to their political loyalties. Therefore, the bench suggested that “the Parliament should amend the Constitution to provide for an independent mechanism, such as a Permanent Tribunal headed by retired judges, to decide disputes under Tenth Schedule.”

The whole object of Anti-defection law was to discipline the legislators but it seems that this law could not contain defection, the politicians continuously changing their party affiliation and this system of political turncoats has become rampant, especially after 2014. Defectors by changing their party affiliation allow other political party to form government which was rejected by the voters in the election. The ensuing changes in the government composition following defection in Arunachal Pradesh (2016), Goa (2019), Manipur (Manipur), Karnataka (2019), Madhya Pradesh (2020) and currently the ongoing power struggle in Rajasthan are some of the illustrations of this assertion.

Defectors have no fear as they mostly join the ruling party and the Speaker who has the power to disqualify belongs to the ruling party, therefore, the chances are too remote that the Speaker being political person will decide against the will of his/her political party.

Conclusion

It can be concluded that this legislation has proved to be completely ineffective in curbing the menace of defection. It is really difficult to prevent defections because politician mostly join ruling the party in the House to which even the Speaker belongs to. The lack of non-partisan and ethical conduct by those in privileged positions such as that of the Speaker further jeopardizes the efficacy of the Anti-Defection Law in India. Some hope could be seen in the Apex Court’s suggestion given in Keisham Meghachandra Singh case, whereby it stated that “the power should be vested in independent tribunal” as also suggested by the different Commissions in the past. The government should do the needful in this direction while adopting a more stringent approach.

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