Syllabus
GS Paper 2 – Separation of Powers between various organs Dispute Redressal Mechanisms and Institutions, Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers & Privileges and Issues Arising out of these, Salient Features of the Representation of People’s Act
Context
Amidst ongoing general elections in various states and the impending Lok Sabha election, it is crucial to examine the difficulties and intricacies associated with anti-defection law
Source
The Hindu | Editorial dated 19- December 2023
Decoding India’s Anti-Defection Law:
- The Tenth Schedule of the Indian Constitution, commonly known as the Anti-Defection law, enacted in 1985 as part of the 52nd Amendment Act.
- The anti-defection law outlines conditions leading to the loss of House membership for a Member of the Legislative Assembly (MLA) or Member of Parliament (MP).
- Parliament incorporated the Tenth Schedule into the Constitution in 1985 to curb the trend of legislators changing parties, especially after the 1967 general elections.
- The law penalizes MPs/MLAs for switching parties, discouraging party-hopping to bring stability to governments.
- The law was a response to the instability caused by multiple state governments being toppled by MLAs changing parties.
From ‘Aaya Ram Gaya Ram’ to Stability
- In 1967, the political landscape in Haryana witnessed a unique event when an MLA named Gaya Lal changed his party three times in a single day.
- This incident coined the phrase “Aaya Ram Gaya Ram,” symbolizing the prevalent issue of political defections in Indian politics.
- The rampant and frequent defections of elected and nominated party members in various states led to a scenario where good governance became elusive.
- The continuous political instability created an insecure environment for the functioning of both state and central governments.
- Recognizing the urgent need to address the problem of political defections, Rajiv Gandhi, the Prime Minister of India from 1984 to 1989, proposed a bill to curb the evils of defection.
- The solution came in the form of the 52nd Amendment to the Indian Constitution in 1985, which introduced the 10th Schedule, widely known as the ‘Anti-Defection Law.’
- This legislative measure aimed to prevent and penalize political defections, ensuring stability and integrity within political parties.
- Subsequently, the 91st Amendment Act of 2003 brought about a modification to the provisions of the Tenth Schedule. Notably, it removed an exemption provision that had stated disqualification for defection would not apply in the event of a split, further strengthening the anti-defection framework.
Major Provisions Under the Anti-defection Law:
- Disqualification of Members of Political Parties:
- A member of a House associated with any political party is disqualified if:
- Voluntarily relinquishes party membership.
- Votes or abstains from voting in the House against the party’s directive without prior permission, uncondoned within 15 days.
- Members elected on a party ticket must adhere to party rules and remain within the party.
- A member of a House associated with any political party is disqualified if:
- Independent Members:
- An independent member, not nominated by any political party, faces disqualification if they join a political party.
- Nominated Members:
- A nominated member is disqualified if they join any political party after six months from assuming their position in the House.
- Within the first six months, they are free to join any political party without the risk of disqualification.
What about Group Movements and Mergers?
- The law does not impose penalties on a group of MPs/MLAs for joining or merging with another political party.
- The law does not penalize political parties for encouraging or accepting defecting legislators.
- Initially, under the 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger.’
- The 91st Constitutional Amendment Act, 2003, modified this, now requiring at least two-thirds of the members of a party to support a “merger” for it to be valid in the eyes of the law.
Who has the authority to disqualify?
- The power to decide on disqualification due to defection rests with the Speaker or Chairman of the House, and their decision is deemed final.
- In the event of a complaint about the defection of the Chairman or Speaker, a decision will be made by a member elected within the House.
- Members accused in a complaint must be given an opportunity to explain before a final judgment.
- The presiding officer has the option to refer the matter to the privileges committee for investigation.
- Desertion does not result in immediate and automatic consequences under the Anti-Defection Law.
- All proceedings related to disqualification under this Schedule are treated as proceedings within Parliament or the Legislature of a state.
- These decisions are subject to ‘Judicial review.’
- The law, however, does not specify a timeframe within which the presiding officer must decide a defection case.
Advantages of Anti-Defection Law
- Promotion of Political Stability:
- Restricts politicians’ tendency to switch parties, contributing to political stability.
- Democratic Realignment:
- Permits democratic realignment of parties through party mergers.
- Elimination of Corruption:
- Reduces political corruption and non-development expenditures associated with irregular elections.
- Constitutional Recognition of Parties:
- Establishes the presence of political parties in the constitution for the first time.
- Government Stability:
- Intended to provide stability to the government by penalizing members for party switches.
- Promotion of Allegiance:
- Instills a sense of allegiance in members to their own party and its principles.
- Party Discipline:
- Promotes party discipline by ensuring candidates remain loyal to their party and constituents who voted for them.
- Corruption Reduction:
- Contributes to reducing corruption at the political level by restricting party changes.
- Defection Procedure:
- Provides a procedure for those who defect from one party to another.
Concerns regarding Anti-Defection Law
- Ambiguity:
- Uncertainty Surrounding Party Mergers in Anti-Defection Law.
- Paragraph 4 introduces ambiguity by not specifying the level (national or regional) for party mergers.
- Requires a two-thirds majority for a merger, without indicating whether this is at the national or regional level.
- Erosion of Independence:
- Anti-Defection Law’s Impact independence of MPs/MLAs.
- MPs/MLAs lose the freedom to vote independently, following party directions blindly.
- Breaks the chain of accountability by making legislators primarily answerable to their political party.
- Speaker’s Controversial Role:
- Lack of clarity in the law regarding the timeframe for action in anti-defection cases.
- Varying durations for case resolution, ranging from six months to three years.
- Concerns were raised about the presiding officer’s impartiality and objectivity due to political constraints.
- Lack of legal expertise and experience for hearing defection cases, as highlighted by past Speakers.
- Recognition Dilemma:
- Split or Merge? Anti-Defection Law’s Recognition Challenges.
- The 91st Constitutional Amendment Act recognizes ‘merger’ but not a ‘split’ in a legislature party.
- Amendments are needed to address the loopholes and recognize both splits and mergers.
- Defection Dynamics:
- Allows wholesale defection but prohibits retail defection, creating inconsistencies.
- There is no distinction between individual and collective defection, creating logical inconsistencies.
- Concerns raised about politicians joining a new party and being given positions.
- Shift in Parliamentary Focus:
- Shifts the focus from fostering a democracy of debate and discussion to party and numbers.
- Fails to differentiate between dissent and defection, weakening parliamentary deliberations.
- Limitations on Members:
- Does not allow the removal of a member from the party for activities outside the legislature.
- Illogical distinction between independent and nominated members regarding joining a political party.
Misuse Through Mergers and Strategic Maneuvers
- A two-thirds majority agreement for a “merger” exempts legislators from disqualification.
- Pre-2003, split exemptions allowed one-third of members to move without disqualification, later omitted by the 91st Amendment.
- Years post-Tenth Schedule implementation reveal challenges and misuse.
- Group defections are causing the fall of democratically elected state governments.
- The Vidhi Centre’s survey highlights trends like “splits followed by mergers.”
- Instances of legislators forming a separate group, availing split exemptions, and later merging with another party.
- Exceptions designed to protect principled defections are strategically used to bring down elected governments.
- Merger provision becomes a potent tool in the hands of political parties, defeating the law’s original purpose.
Suggested Reforms:
- Dinesh Goswami Committee (1990):
- Establish the President/Governor, guided by the Election Commissioner’s advice, as the final deciding authority.
- Haleem Committee (1998):
- Define “voluntarily giving up party membership” and “political party” comprehensively.
- Impose future restrictions, such as preventing expelled members from holding government offices.
- 170th Law Commission Report (1999):
- Treat pre-poll electoral fronts as political parties under the anti-defection law.
- Restrict the issuance of whips to situations where the government is genuinely under threat.
- Eliminate the provision exempting splits and mergers from disqualification.
- Constitution Review Commission (2002):
- Bar defectors from holding public offices during their remaining terms.
- Invalidate votes cast by defectors to topple a government.
- Election Commission Proposal:
- Empower the Election Commission as the deciding authority in defection cases.
The Way Forward
- Limit the scope of the Anti-Defection Law to crucial votes determining government stability, such as the passage of the annual budget or no-confidence motions.
- Shift the authority for deciding on disqualification from the Presiding Officer to the President (for MPs) or the Governor (for MLAs), acting on the advice of the Election Commission.
- Acknowledge the need for an independent adjudicatory authority to prevent conflicts of interest, as suggested by Justice Verma in the Hollohan’s judgment. Consider tenure and continuous majority support as factors in determining independence.
- Explore possible reforms to the Anti-Defection Law to enhance its effectiveness.
- Encourage democratic discussions within political parties by empowering individual MPs and MLAs to think independently.
- Extend the rationale that representatives are elected based on the party’s program to pre-poll alliances, fostering a more inclusive and representative political landscape.
References:
Legal Service India
The Hindu
Practice Questions
In the context of recent political developments, evaluate the effectiveness of the Anti-Defection Law. What reforms could be considered to further strengthen this legislative measure and address current challenges?