Anti-defection Law

Anti-defection Law

 

Introduction:

  • The Anti Defection Law was included in the Constitution as the Tenth Schedule in 1985 by the 52nd constitutional amendment act to combat the “evil of political defections”.
  • The main purpose was to preserve the stability of governments and insulate them from defections of legislators from the treasury benches.
  • The law stated that any Member of Parliament (MP) or that of a State legislature (MLA) would be disqualified from their office if they voted on any motion contrary to the directions issued by their party.

 

Historical Background:

  • 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 sought to prevent such political defections which may be due to reward of office or other similar considerations.
  • To deal with this political instability, during the fourth Lok Sabha in 1967 a committee was formed under the chairmanship of Y. B. Chavan. This committee submitted a report in 1968 which led to a first attempt to submit an anti defection bill in Parliament which did not succeed to bring the legislation for it. A joint committee was formed in parliament by the then government.
  •    1977–79 was one of the crucial periods in Indian politics when the first-ever national non-Congress Government, led by Morarji Desai, was driven out of power due to the defection of 76 parliamentarians. This caused political uncertainty until 1979 and also a trend set during this period that whichever party got a majority in the center, the regional government fell due to defection of the member who did not belong to the central government party.
  • With rising public opinion for an anti defection law a new anti defection bill was introduced in the parliament in 1984 which passed unanimously by both the houses on 31st Jan 1985.   The bill received the President's approval on 15 February 1985 and the act came into effect on 18 March 1985. In such a way the legislation came into force to bring more stability to the government.  
  • Later, the 91st Amendment Act of 2003 made one adjustment to the Tenth Schedule provisions. It deleted an exemption provision, which stated that disqualification for defection would not apply in the event of a split.

 

What is Defection?

  • Defection by legislators occurs in many democracies. It can be argued that they can undermine the stability of the government, which is dependent on the support of the majority party’s own elected legislators and/or a coalition of those elected to represent other parties.
  • The argument follows that such instability can amount to a betrayal of the people’s mandate as voiced at the most recent prior election.
  • Almost 50% 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 to achieve this.

 

Provisions Under the Anti-defection Law

The Tenth Schedule contains the following regulations regarding disqualification of members of Parliament and state legislatures for defection:

Disqualification Members of Political Parties

  • A member of a House belonging to any political party is disqualified for membership in the House if;
    • he voluntarily gives up his membership in such political party;
    • he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission from such party and such act has not been condoned by the party within 15 days.

 

  • According to the preceding condition, a member elected on a party ticket must remain in the party and follow the party's rules.

 

Independent Members:If an independent member of a House is elected without being nominated as a candidate by any political party, he is prohibited from continuing to serve in the House.

 

Nominated Members:A nominated member of a House is disqualified from becoming a member if he joins any political party after six months from the day he takes his place in the House.

  • This implies that he is free to join any political party within six months after holding his position in the House without fear of being disqualified.

 

Power to disqualify:The decision on disqualification questions on the ground of defection is referred to the Speaker or the Chairman of the House, whose decision is final.

  • If a complaint is received regarding the defection of the Chairman or the Speaker, a member of the House who must be elected within the House, shall take the decision.
  • All proceedings in relation to disqualification under this Schedule are considered to be proceedings in Parliament or the Legislature of a state as is the case.

 

Rule Making Power

  • The presiding officer of a House has the authority to enact rules to carry out the requirements of the Tenth Schedule.
  • All such regulations must be laid before the House for a period of 30 days. They may be approved, modified, or rejected by the House.
  • Furthermore, he may require that any intentional violation of such regulations by any member be dealt with in the same manner as a breach of House privilege.
  • The presiding officer can only take up a defection issue if he receives a complaint from a member of the House, according to the rules.
  • Before making a final judgement, he must offer the member (against whom the complaint has been lodged) an opportunity to explain himself.
  • He may also send the matter to the privileges committee for investigation. As a result, desertion has no immediate and automatic consequences.

 

Exceptions

  • On the other hand, the legislation does not bind politicians to their political parties indefinitely. In various conditions, legislators can switch parties without fear of being disqualified. This law allows a party to merge with another if two-thirds of its members approve. In such an instance, none of the members face defection accusations. In other situations, if a person was elected as chairman or Speaker and was forced to resign from their party. As a result, they can rejoin the party after leaving that position.
  • The law originally stated that the Presiding Officer is immune from judicial review. The Supreme Court, however, overturned this in 1992. It was further specified that no interference would be made until the Presiding Officer issued his order.
  • In India, there have been numerous incidents of desertion. Several MLAs and MPs have switched parties. After combining his party, Jharkhand Vikas Morcha (Prajatantrik), with the BJP in Jharkhand, ex-CM Babulal Marandi is also facing proceedings under the Tenth Schedule.

Benefits

  • The law aims at providing stability to the Government by punishing members in case of any party shifts on their parts.
  • Also, anti-defection laws try to bring about a sense of loyalty of the members towards their own party.
  • This it tries to achieve by ensuring that the members selected in the name of the party and its support as well as the party manifesto remain loyal to the political party of which he is a member and its policies.

 

 

Anti-defection Provisions under the 91st Amendment Act of 2003

  • The total number of ministers, including the Prime Minister, in the Central Council of Ministers, shall not exceed 15% of the total strength of the Lok Sabha.
  • A member of either House of Parliament belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
  • The total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15 % of the total strength of the Legislative Assembly of that state. But, the number of ministers, including the Chief Minister, in a state shall not be less than 12.
  • A member of either House of a state legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
  • A member of either House of Parliament or either House of a State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post.
  • The provision of the 10th Schedule (anti-defection law) regarding exemption from disqualification in case of a split by one-third of members of the party has been deleted. It means that the defectors have no more protection on grounds of splits.

 

Significance of the Anti-defection law under the 10th Schedule

  • It provides greater stability in the Parliament and state legislature by checking the tendency of legislators to change parties.
  • It Curbs Political corruption, which is a necessary first step for addressing other forms of corruption in the country.
  • It Strengthens democracy by bringing stability to politics, ensuring legislative programmes of the Government are not affected by a defecting Member.
  • It makes members of parliaments more responsible and loyal to the parties with whom they were aligned at the time of their election, as many believe that the party allegiance plays a key role in their election success.
  • It gives, for the first time, a clear-cut constitutional recognition of the existence of political parties.

 

 Limitations of the law

  • It only punishes legislators for switching parties. Political parties who are at the heart of the politics have no liability under the law.
  •  It safeguards the members of a political party where the original party merges with another party subject to the condition that at least two-thirds of the members have agreed to such merger.
  •  The exception is based on the number of members rather than the reason behind the defection.
  • The presiding officer has been given wide and absolute powers to decide the case related to disqualification of the members on the grounds of defection.
  • With not enough room for elected representatives to harbour a difference of opinion, en-masse departures of rebelling legislators have become the ‘political’ normal. Along with uprooting incumbent governments, such departures can also bring governance to a grinding halt.
  •  The law focuses on voluntary defection and remains silent about expulsion of a member from the party. Once expelled, such a member would then be an independent in the House, with an option of joining another party, which presents a possible loophole for exploitation of the Schedule.

 

Challenges of Anti-Defection Law

  • The anti-defection bill aims to keep the government stable by preventing legislators from switching sides.
  • This statute, however, prohibits legislators from voting by their conscience, judgment, and the interests of their constituents.
  • The anti-defection statute obstructs the Legislature’s oversight duty over the government by assuring that members vote based on party leadership decisions.
  • In other words, if parliamentarians are unable to vote on legislation independently, they will be unable to serve as an effective check on the administration.
  • In effect, the Anti-Defection Law implemented the separation of powers between the Executive and the Legislature, concentrating power in the hands of the executives.
  • According to the legislation, legislators can be disqualified for defection by the Presiding Officer of a legislature based on a petition from any other member of the House.
  • However, there are other cases in which presiding officials serve the entrenched interests of a ruling political party or government.
  • The Anti-Defection Law implemented a democracy based on parties and numbers rather than debate and discussion in India.
  • It makes no distinction between dissent and defection in this way, weakening Parliamentary debates on any measure.

 

The SC’s views on the 10th schedule:

  • Manipur Judgment (2020): The Supreme Court sets a three-month deadline for Speakers to decide on disqualification petitions, stressing prompt resolutions.
  • Kihoto Hollohan Case (1992): Affirmed that the 10th Schedule isn’t an unreasonable restriction on free speech and allows judicial review of the Speaker’s order.
  • Ravi Naik and Balasaheb Patil Cases: Defined ‘voluntary giving up of membership’ broadly, beyond resignation, including conduct like absenteeism or acting against party interests.
  • Vishwanathan Case: Established that expelled members remain part of their original party unless joining a new one, averting instant disqualification.
  • Shiv Sena Case (2023): Directed the Election Commission to assess a party’s real representation using the organizational test, not just the legislative majority.

 

Way Forward

  • Several experts have suggested that the law should be valid only for those votes that determine the stability of the government. Example: passage of the annual budget or no-confidence motions.
  • 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.