TOPIC : INDIA NEEDS TO PLUG THE LOOPHOLES IN THE ANTI-DEFECTION LAW

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THE CONTEXT: In April 2022, the Vice-President while addressing the occasion of the 50th year of the Press Club called for an amendment in the anti-defection law because of the “loopholes”. The present political crises in Maharashtra also make the topic relevant for an elaborate discussion. This article explains the anti-defection law and associated issues in detail.

Defection: Changing party allegiance from the party on which a person got elected (to a legislative body) to a different party.

PROBLEMS WITH DEFECTION: Parliamentary democracy is becoming a farce as a result of the change of party by the representatives without any hesitation. A culture of impunity has developed so much so that the political representatives have become adept at using and bypassing the anti-defection law. The Constitution has given priceless value to the votes of the citizens; contrastingly the politics of vested interests of the representatives are making it worthless day by day. Defection leads to the subversion of electoral mandates and affects the normal functioning of the government.

ABOUT ANTI – DEFECTION LAW

• Parliament added it to the Constitution as the Tenth Schedule in 1985 to bring stability to governments by discouraging legislators from changing parties. The Tenth Schedule – popularly known as the Anti-Defection Act – was included in the Constitution via the 52nd Amendment Act, 1985.
• It does not penalize political parties for encouraging or accepting defecting legislators however it punishes individual Members of Parliament (MPs)/MLAs for defection. The members disqualified under the law can stand for elections from any political party for a seat in the same House. The decisions on questions as to disqualification on the ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’. However, the law does not provide a timeframe within which the presiding officer has to decide a defection case.
• The 91st Constitutional Amendment Act, 2003, changed the initially envisaged 1/3^rd  to now at least two-thirds of the members of a party must be in favour of a “merger” for it to have validity in the eyes of the law.

THE GROUNDS FOR DISQUALIFICATION

Article 102/191 of the Constitution of India lays down the grounds under which a Member of Parliament/Member of Legislative Assembly may be disqualified from being a member of the house.

The first part of Article 102 elaborates several instances when such disqualification may be done:

(a) If the person holds any undeclared office-for-profit under the Government;

(b) If he is declared to be of unsound mind by a competent court;

(c) If he is an undischarged insolvent etc.;

(d) Voluntarily acquires the citizenship of a foreign State;

(e) Disqualified by or under any law made by Parliament.

The second part of Article 102 (and 191) gives authority to the Tenth Schedule of the Constitution to disqualify any member. It is this Tenth Schedule that is popularly known as the anti-defection law.

• 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 authorized to do so, without obtaining prior permission.
• As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorized person within 15 days of such an incident.
• If any independently elected member joins any political party.
• If any nominated member joins any political party after the expiry of six months.

Exceptions:Paragraph 4 of the Tenth Schedule says,

4. Disqualification on the ground of defection not to apply in case of a merger.—

(1) A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party—

(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or

(b) have not accepted the merger and opted to function as a separate group,

and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph

(1) of paragraph 2 and to be his original political party for the purposes of this subparagraph.

(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

 VARIOUS INCIDENTS RELATED TO DEFECTION IN INDIAN POLITY

We know that the anti-defection law does not apply if the number of MLAs who leave a political party constitutes two-thirds of the party’s strength in the legislature. These MLAs can merge with another party or become a separate group in the legislature. For example,

• In 2021 in Meghalaya, 12 of 17 Congress MLAs joined the All India Trinamool Congress. the Speaker recognised as a ‘merger’ the crossover of 12 Congress MLAs out of a total of 17 to the Trinamool Congress and refused to disqualify them.
• In 2019, all six MLAs of the Bahujan Samaj Party in Rajasthan joined the Congress. The same year, four out of six Telgu Desam Rajya Sabha MPs joined the BJP. In all such cases, the MPs/MLAs were not disqualified.
• The present crisis in Maharashtra where the MLAs have its root in the 2019 formation of the coalition government in the state (Maha Vikas Aghadi). Now the MLAs from the Shiv Sena have distanced themselves from the coalition and shown faith in a new leader (The Shiv Sena had 55 members in the Maharashtra Assembly. Eknath Shinde, who leads the rebel group, claimed the support of 40 MLAs with him), having joined hands with NDA. In the 288-member House, 164 MLAs voted for the motion of confidence, while 99 voted against it. The question of whether the new faction is a separate political group or the original Shiv Sena is yet to be decided (by the ECI) and the question of disqualification of the MLAs is still subjudice.

 RESIGNATION AND ANTI-DEFECTION LAW

• In Karnataka, the 2018 elections threw up a hung assembly. After the Bharatiya Janata Party failed to prove its majority after BS Yediyurappa took an oath, the Congress and the Janata Dal-Secular formed the government under the leadership of HD Kumaraswamy. But a year later, the resignations by Congress and JDS MLAs reduced the government to a minority and the government later fell. The rebel MLAs were later elected on a BJP ticket in the by-elections.
• Again in 2018, Congress won the Madhya Pradesh elections and formed a government under Kamal Nath. Less than a year later, 23 Congress MLAs including six ministers owing allegiance to Jyotiraditya Scindia resigned. The MLAs later joined the BJP government after winning by-elections.

The resignation is the way to circumvent the Anti-defection law and attract punishments thereby prescribed. However, some also contend that if the person is no longer satisfied by the ideologies or the policies of the government then the only way is to resign. It is hard to ascertain whether the resignations are voluntary or under coercion.

THE ISSUES WITH ANTI-DEFECTION LAW

UNDERMINING REPRESENTATIVE & PARLIAMENTARY DEMOCRACY

• After enactment of the Anti-defection law, the MP or MLA has to follow the party’s direction blindly and has no freedom to vote in their judgment.
• Due to the Anti-Defection law, the chain of accountability has been broken by making legislators accountable primarily to the political party.

AMBIGUITY OVER MERGER CLAUSE

• The confusion is about the use of the terms ‘Political Party’ and ‘Legislature Party’. It is not clear whether political parties should merge amongst themselves before the merger of elected members (Legislature Party) of two distinct parties. The merger envisaged in Paragraph 4 of the Tenth Schedule is a two-step process. Under this, one political party first merges with another, and then the legislators accept the merger.
• However, the second subparagraph (of Paragraph 4) says that a party shall be “deemed” to have merged with another party if not less than 2/3rd of the members of the legislature party concerned have agreed to such merger.
• The ambiguity is whether the merger of the Legislature Party would be deemed to be the merger of the Political party as well. Legal experts from the Vidhi Center of Legal Policy argue that the clause seems to be creating a “legal fiction” so as to indicate that a merger of 2/3rd members of a legislature party can be deemed to be a merger of political parties. Even if there is no actual merger of the original political party with another party.

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 THE 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 functioning of the administration.

ALLOWS ONLY WHOLESALE DEFECTION

• It allows wholesale defection, but retail defection is not allowed. Amendments are required to plug the loopholes.
• He raised concern that if a politician is leaving a party, s/he may do so, but they should not be given a post in the new party.

CONTROVERSIAL ROLE OF SPEAKER

• There is no clarity in the law about the timeframe for the action of the House Chairperson or Speaker in the anti-defection cases.
• Some cases take six months and some even three years. There are cases that are disposed of after the term is over.

FREEDOM OF SPEECH OF LEGISLATORS

• One of the conditions for disqualification is the violation of the whip issued by the Political Party to vote in a particular manner. Critics argue that this greatly limits the ability of a member to exercise her free opinion on the floor of the House on certain proposed legislation.

PROMOTE HORSE-TRADING

• Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.

DOES ANTI-DEFECTION LAW NEED TO BE REPEALED?

The toppling of the Maha Vikas Aghadi government in Maharashtra offers many lessons to political observers, but one that people need to pay more attention to, is that it confirms the total irrelevance and ineffectiveness of the anti-defection law, officially known as the 10th Schedule of the Constitution.

There are several questions that need to be decided. Can the Speaker (or in his absence, the Deputy Speaker) decide on a disqualification petition while a no-confidence motion is pending against him? Can the Supreme Court review the decision ahead of the disqualification decision being made? How does the leeway given for the merger of a party operate — if two-thirds of MLAs of the party vote to separate from the party leadership, would they have to merge with another party to avoid disqualification? The solution to these issues is either to address the root cause and repeal the anti-defection law or make necessary amendments/reform the law to make it more effective for the purpose of its enactment.

VIEWS OF VARIOUS 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 the anti-defection law.
• Political parties should limit the 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 – NCRWC (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.
• Recommendations:

o   On Presiding Officer: 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.

o   Similar to Office of Profit: 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).

JUDICIAL PRECEDENTS

1. KIHOTO HOLLOHAN vs ZACHILLHU (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 the Presiding Officer’s decisions of disqualification shall be open to judicial review. The Supreme Court also held that judicial review cannot be available prior to the making of the decision by the Speaker not at the interlocutory stage of the proceedings.

2. RAVI S NAIK vs UNION OF INDIA (1994): The Supreme Court had said that “ an inference can be drawn from the conduct of a member that he has voluntarily given up the membership of the party to which he belongs.

3. NABAM REBIA vs DEPUTY SPEAKER (2016): The court had ruled that it would be “constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule while a motion of resolution for his own removal from Office of Speaker is pending”.

4. GIRISH CHANDORKAR vs THE SPEAKER, GOA (2011): The Bombay High Court held that the merger of 2/3^rd of members of the legislative assembly is deemed to be the merger of the original party. (sub judice in Supreme Court).

5. Keisham Meghachandra Singh case (2020): The Supreme Court in Keisham Meghachandra Singh vs. the Hon’ble Speaker Manipur Legislative Assembly & Ors. (2020) case made a significant suggestion regarding disqualification powers of the Speaker. The Court was adjudicating upon the matter relating to the disqualification of Members of the Legislative Assembly (MLAs) in the Manipur Legislative Assembly under the Tenth Schedule. The Court recommended the Parliament to amend the Constitution regarding the role of the Speaker as a quasi-judicial authority while dealing with disqualification petitions under the anti-defection law (when such a Speaker continues to belong to a particular political party either de jure or de facto). The Court suggested that an independent tribunal can be appointed which will substitute the Speaker of the Lok Sabha and Legislative Assemblies to deal with matters of disqualifications under the Tenth Schedule. The Tribunal will be headed by a retired Supreme Court judge or a retired Chief Justice of a High Court. The Court also suggested that some other outside independent mechanism can adjudicate on such matters. This will ensure that such disputes are decided both swiftly and impartially.

 ANTI-DEFECTION LAWS IN OTHER PARTS OF THE WORLD

EUROPE

• There are strict laws in all the countries of Europe that if a member changes party, then their membership of Parliament is terminated. It is believed that the person has violated the laws of the country.

IMMEDIATE RESIGNATION IN BANGLADESH 

• In Bangladesh, Kenya, South Africa and many other countries, no public representative can do defection. The law doesn’t even allow it. Article 70 of the Bangladesh Constitution states that if a public representative votes against his party in the House or changes the party, he must resign from membership.

SEAT HAS TO BE VACATED IN KENYA

• In Kenya, Section 40 of their Constitution states that if a member leaves his party, he must vacate his seat. Speaker will decide this and the member can appeal against it in the High Court.

IMPOSSIBLE TO CHANGE PARTY IN SINGAPORE

• According to Article 46 of the Constitution of Singapore, if a member leaves the party or is removed by the party, he must also vacate his seat. Parliament will decide the disqualification of any such member.

MEMBERSHIP OF THE HOUSE ENDS IN SOUTH AFRICA

• This is explained in Section 47 of the Constitution of South Africa. According to it, if a member leaves his party, then his membership will automatically end.

FLEXIBLE RULES IN UK AND CANADA

• In Britain and Canada, the rules are flexible, but there is generally no opportunistic defection to form or topple governments. There the defection is called crossing the line. In Britain and Canada, the ruling party and the opposition sit separately. There, if a member crosses his floor and sits on the other side, then it is considered as a change of party.

THE WAY FORWARD:

1. The role of the people in the parliamentary democracy is immense. People themselves shall be made aware and be educated about the issues with the defection and that their franchise shall not be misused by the elected representatives. It is seen that once the MPs/MLAs defect they again tend to win the by-elections which is again a gross disrespect to the representative democracy.
2. Political parties shall also have internal democracy to listen and act on different opinions emerging from within. This might restrict the defecting tendencies among the elected representatives and also help in the overall strengthening of the parliamentary democracy in the country.
3. The Supreme Court needs to maintain consistency in deciding matters over the role and responsibilities of the speaker and also adjudicate whether an actual merger of Political Parties is a condition necessary for the merger of Legislature Parties (or should the merger of Legislature Parties be deemed as a merger of Political Parties).
4. The Speaker/Chairperson should observe ethical conduct and give decisions within 3 months as advised by the Supreme Court.
5. Further, an independent tribunal can be created in the long run to decide cases under the Tenth schedule. This would effectively reduce the partisan role played by the Speaker.
6. The Law Commission in 1999 and the National Commission to Review the Working of the Constitution (NCRWC) in 2002 recommended deleting the clause related to the merger (Paragraph 4, Exception to Disqualification). Parliament should reconsider the debate and decide on the recommendations.
7. The Dinesh Goswami Committee Report recommended that disqualification of a member should only be attracted in the event a member violates a whip on matters related to a Motion of Vote of Confidence, a No-confidence Motion, Money Bill or a Motion of Vote of Thanks to the President’s address.
8. The law has failed to curb defections in recent years and lacks any deterrence effect on legislators. Further, re-election in by-polls shows the public’s acceptance of defecting legislators and also the scope of defection is very wide as it is applicable to every legislation (violation of whip). It is also applicable to members of the Rajya Sabha and Legislative Councils who don’t have a say in the stability of the government. The Anti-Defection Law shall be reformed/amended to address such questions.

THE CONCLUSION: Politicians always look for loopholes in the law. The wholesale defections that have taken place in the recent past are a result of their successful discovery of loopholes in the 10th Schedule. Therefore, this law needs to be tightened. The law on defection is indispensable in a country like India where MLAs need to be virtually imprisoned in resorts in faraway states lest they might be poached by the rival party. If our polity wants to get rid of open corruption, it needs to take urgent steps to plug existing loopholes that have made the Tenth Schedule unworkable. Let our politicians not be seen as collaborators in flouting the Constitution.

Mains Practice Questions:

1. Anti – defection Law allows wholesale defection, but not retail defection. Comment.
2. What do the recent developments in various state assemblies say about the efficacy of the Anti-Defection Law? Does the law need strengthening? Justify your view.