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Anti-defection Law & Role of Speaker : An Analysis - Current Affair Article for UPSC, IAS, Civil Services and State PCS Examinations

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Why in News?

The prolonged political crisis in Karnataka has demonstrated the ways in which the nearly 35-year-old anti defection law can be used and abused. In this article, we will discuss how the law was enacted, and how it has performed.

Introduction

The anti-defection law as enunciated in the Tenth Schedule to the Constitution of India was to answer the menace of unethical political defections eating into vitals of democracy. Defections had reduced people's representatives to nomads wandering whenever and wherever they found lush green pastures to graze. Apart from destabilising duly elected governments, such switching of political loyalties had made a mockery of parliamentary democracy. Once elected and chosen by the voters, the people's representatives were at unrestricted liberty to dump their electorate. The anti-defection law needs to be looked into again by the lawmakers and reformed in light of the experience of its implementation since 1985. There have been a large number of cases of defection and how awkwardly they have been handled. Lately, for e.g., we have seen people moving out of parties in large numbers and eluding disqualification by suggesting that they have merged with their new party. The law is clear, mergers are between two parties and two-thirds of the members will agree to the merger. Now the practice is the other way around — two-thirds of the members or more move out and then they merge with the new party. The law is made to stand on its head by the legislators.

The Legislative Journey of the Anti-defection Law

The seeds of the anti-defection law were sown after the general elections in 1967. The results of those elections were a mixed bag for the Congress. It formed the government at the Centre, but its strength in Lok Sabha fell from 361 to 283. During the year it lost control of seven state governments as MLAs shifted their political allegiance. In this backdrop, P Venkatasubbaiah, a Congress MP in Lok Sabha who served in the Cabinets of both Indira and Rajiv Gandhi, proposed the setting up of a high-level committee to make recommendations to tackle the “problem of legislators changing their allegiance from one party to another”.

The Y B Chavan Panel: Despite the acrimony, the Lok Sabha agreed to the setting up of a committee to examine the problem of political defections. The then Home Minister, Y B Chavan, headed the committee. In its report, the committee noted “that the lure of office played a dominant part in decisions of legislators to defect. It pointed out that out of 210 defecting legislators in seven states, 116 were given ministerial berths in governments which they helped form by their defections. To combat this, the committee recommended a bar on defecting legislators from holding ministerial positions for a year — or until the time they got themselves re-elected. It also suggested a smaller Council of Ministers both at the levels of the Centre and the states. The committee was in favour of political parties working together to help evolve a code of conduct to effectively tackledisruptions.

Early attempts at a Law: Following the report of the Y B Chavan committee, two separate legislative attempts, both unsuccessful, were made to find a solution to defections.

• The first one was made by Indira’s Home Minister Uma Shankar Dikshit in 1973;
• The second, in 1978, by Shanti Bhushan, Minister for Law and Justice in the Janata Party government of Morarji Desai.

The third attempt — which was successful — was made in 1985, after the Congress won more than 400 seats in Lok Sabha in the aftermath of Indira’s assassination.

The Tenth Schedule

The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act. The amendment by which the Tenth Schedule was inserted in the Constitution, did three broad things.

One, it made legislators liable to be penalised for their conduct both inside (voting against the whip of the party) and outside (making speeches, etc.) the legislature — the penalty being the loss of their seats in Parliament or the state legislatures.

Two, it protected legislators from disqualification in cases where there was a split (with 1/3rd of members splitting) or merger (with 2/3rds of members merging) of a legislature party with another political party. Three, it made the Presiding Officer of the concerned legislature the sole arbiter of defection proceedings.

However, there is an exception that was provided in the law to protect the legislators from disqualification. The 10th Schedule says that if there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified.

Disqualification on Ground of Defection:

(1) A member of a House belonging to any political party shall be disqualified for being a member of the House—

• if he has voluntarily given up his membership of such political party; or
• if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.

(2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.

(3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.

Disqualification on Ground of Defection not to apply in case of Split. Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one-third of the members of such legislature party.

Disqualification on Ground of Defection not to apply in case of Merger: A member of a House shall not be disqualified, 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.

The 2003 Amendment

The last step in the legislative journey of the anti-defection law came in 2003. A Constitution Amendment Bill was introduced in Parliament by the then government to address some of the issues with the law. A committeeheaded by Pranab Mukherjee examined the Bill.

The committee observed that the provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further it is alsoobserved that the lure of office of profit plays dominant part in the political horse-trading resulting in spate of defections and counter defections.”

The one-third split provision which offered protection to defectors was deleted from the law on the committee’s recommendation. The 2003 Amendment also incorporated the 1967 advice of the Y B Chavan committee in limiting the size of the Council of Ministers, and preventing defecting legislators from joining the Council of Ministers until their re-election. However, as events in the years and decades since have demonstrated, these amendments have had only limited impact.

The (Ab)use of the Law

The removal of the split provision prompted political parties to engineer wholesale defections (to merge) instead of smaller ‘retail’ ones. Legislators started resigning from the membership of the House in order to escape disqualification from ministerial berths. The ceiling on the size of the Council of Ministers meant an increase in the number of positions of parliamentary secretaries in states. The Speakers started taking an active interest in political matters, helping build and break governments. The anti-defection law does not specify a timeframe for Speakers to decide on defection proceedings. When the politics demanded, Speakers were either quick to pass judgment on defection proceedings or delayed acting on them for years on end.

Role of Speaker

The Anti-Defection law is clear that the question of disqualification or otherwise under the Tenth Schedule is to be decided by the Speaker. The Courts have only the power of judicial review and any a priori intervention is ruled out. It is an established precedent that the Speaker as the Head of Legislature and being a constitutional authority is not amenable to the jurisdiction of the Courts. However, this applies in respect of the conduct of legislative business where the Speaker is supreme and final authority. However, in areas wherein the Speaker is expected to function as a quasi-judicial authority under the Tenth Schedule, it would definitely invite judicial review and the Office of the Speaker cannot claim any special privilege.

Judicial Review of Anti- Defaction Law

The scope of this anti-defection law was examined in detail in Kihoto Hollohan v Zachillhu , a case that also analyzed various other aspects of this legislation also. Here, the court, speaking about the necessity of an anti defection legislation, said, “The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The decision of the Speaker was not immune from judicial scrutiny. The Court claimed that a dispute regarding the disqualification of a Member of Parliament was not to be treated as a matter of privilege but one which is not legislative but judicial in nature.

The remedy proposed to disqualify the members of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House. The Supreme Court has said that when the party issues a whip, it must be for a very important legislative measure or a trust vote on which the government’s survival is at stake.

Advantages and Disadvantages of Anti- Defection Law

Advantages

Provides stability to the government by preventing shifts of party allegiance. By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people.

Disadvantages

Ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party policies. Also promotes party discipline. Interferes with the member’s freedom of speech and expression by curbing dissent against party policies.

Recommendations on Reforming the 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.

Halim Committee on anti-defection law (1998) :

• The words ‘voluntarily giving up membership of a political party’ be comprehensively defined.
• Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members.
• The term political party should be defined clearly.

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 anti-defection law.
• 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.

Constitution Review Commission (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.

Way Forward

The introduction of Tenth Schedule in the Constitution attempted to bring in a comprehensive legislation that would assail the menace of defection. While the law has succeeded in this aspect to a reasonable degree, therewere certain ambiguities. The Courts of the land have done a fair job in expounding the stance by applying the law to particular facts and circumstances. Nevertheless, very few general propositions have been laid down which have a universal application. Thus, there seems to be considerable scope for judicial interpretation, one that may give further clarity on the law and may bring in a wider range of cases within the umbrella of this legislation.

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