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Analytical Study of Anti-Defection Law in India

The current political instability in India highlights the ineffectiveness of anti-defection law which is unable to fulfil its main objective i.e., “curbing the evil of political defections”. Defection means “floor-crossing by a member of one political party to another party”.[i] It betrays the mandate of the electorate, fundamentals of the party system and leads to political instability. Recent instability in the legislative assembly of Rajasthan, Madhya Pradesh, Karnataka, Goa, Manipur etc. are the best example to show how legislators have found defects in the anti-defection law to suit their needs in the best possible way.


The famous expression- “Aaya Ram Gaya Ram” evolved in 1967 when an assembly legislator from Haryana, Gaya Lal, changed his party three times in a day.[ii] Following this, 2700 cases of defection were recorded between the year 1967-1983[iii] which led to the toppling of governments in many states. To address this problem, a committee headed by Y.B. Chavan was constituted which held corruption to be a major cause of defection and recommended barring of defector for one year or till such time he resigned his seat and got re-elected.[iv] Subsequently, attempts were made to pass an anti-defection law via Constitutional Amendment Bill in the year 1973 and 1978. But the law was finally passed by Constitution 52nd Amendment Act, 1985 which inducted tenth schedule in the Constitution. Major modifications in the tenth schedule was done by 91st Amendment Act, 2003 to strengthen the law and make it more effective.


GROUNDS FOR DISQUALIFICATION

Article 102(2) and 191(2) of the Constitution provides for disqualification on the ground of defection. Paragraph 2 of the tenth schedule provides two situations in which a member can be disqualified. They are:

a) Voluntarily giving up of party membership.

b) Abstention from voting or voting against the will of the party in the house. However, the party can condone the action of member within 15 days from date of such voting or abstention.

EXEMPTION FROM DISQUALIFICATION

The tenth schedule provided protection from disqualification in cases of both splits and mergers. But the 3rd paragraph (exemption in cases where 1/3rd of the members splits from their original party) was omitted by the 91st Amendment Act, 2003 on the recommendation of 170th report of Law Commission of India and National Commission to Review the Working of the Constitution (NCRWC)[v] because it promoted bulk defections while punishing individual defections.[vi]


Paragraph 4 provides that in case of merger or formation of a new party, the members won’t be liable for disqualification on the grounds of defection, if not less than 2/3rd of the members of the original party either:

a) Accept the merger; or

b) Decide to operate as a separate function group.


The justification of the paragraph appears to lie in the fact that it protects the internal democracy within the party. In case, where a small faction (less than or equal to 1/3rd of the party) tries to dominate the will of the party, the larger group has the option to split away from the original party, without having the fear of losing its membership. This ensures that the party works democratically and the will of all its members are taken into account while taking any decision.


ADJUDICATORY AUTHORITY

Under tenth schedule, the Speaker/Chairman holds the power to decide on disqualification of members and his decision is final. However, if a question arises with respect to the defection of the Chairman/Speaker, then it shall be referred to such member of the House as elected by that House itself.[vii] The questions regarding disqualification should be decided with reference to the date it was incurred[viii] and has to be answered within reasonable period of time, ideally within 3 months.[ix]


Seventh paragraph of the Schedule puts a complete bar on jurisdiction of Court on any matter connected with the disqualification of a member. However, Supreme Court in Kihoto Hollohan[x], held the paragraph to be unconstitutional and subject to judicial review but judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. However, in exceptional cases, Courts can interfere pending decision which may have “grave, immediate and irreversible repercussions”.


MAJOR CRITICISM

Over a period of time, anti-defection law has drawn serious criticism from various expert committees, scholars, academicians, judges and politicians. Major points of criticism are regarding:

1) Role Of The Speaker

Speaker, i.e. the adjudicator under the tenth schedule, is elected by a simple majority of the House. His tenure is not fixed and he enjoys the office on the will of the House (or specifically the ruling party). In such condition the suspicion of bias on the Speaker’s role could not be ruled out.[xi] Supreme Court highlighted this problem in various other cases,[xii] most recent of which is the Manipur Legislative Assembly case[xiii] where it questioned-“why a Speaker- who is a member of a particular party and an insider in the house, should be the sole and final arbiter in the cases of political defector”.


Another problem apart from biasness, is the issue of unnecessary delay in deciding the case of defection. The unnecessary delay caused by the Speaker can result in members, who have defected from their original parties, continue to be the members of that House. The recent cases involving defections in Manipur[xiv] and Goa legislative assembly[xv] are accurate examples whereby the matter was pending before the Speaker for 2 years and 11 months respectively after which the court had to interfere to ensure that the decision is delivered within reasonable period of time. Due to these reasons, Expert committees as well as the Supreme Court has suggested that the decision on disqualification of member should be made by the president (in case of MPs) or the governor (in case of MLAs) on the advice of election commission[xvi] or just by the election commission[xvii] or by an independent tribunal.[xviii]


2) Legislator’s Ability To Make Decisions

Paragraph 2(1)(b) of the Schedule prohibits the member of a party from voting against the will of the party. Critics argue that members have the responsibility to represent the area they are elected from. To discharge this responsibility effectively, legislators should have the right to express his opinion, even if the same goes against the will of the party to preserve the interest of his electorate. However, under the current regime that is not possible as the same will qualify for defection and the member will lose his membership. To resolve this issue, suggestions have been made by expert committees that the anti-defection law should apply only to confidence and no-confidence motions[xix] or only to those matters when the government is in danger.[xx]


3) Ambiguity In Law

Another rising area of concern is regarding the ambiguity in term “voluntarily giving up” given under paragraph 2(1)(a) of the tenth schedule. Supreme Court in R.S. Naik,[xxi] held that giving up of party can be both expressed or implied and can be inferred from the conduct of the member. However, the Schedule does not answer whether inner party protest will amount to giving up of membership and whether the issuance of suspension letters preclude the assumption that the members have “voluntarily given up” the party. These questions were once again highlighted in the Rajasthan legislative assembly crisis (2020).[xxii]


Justice Venkatachaliah in Kihoto Hollohan, observed that inner party protest is a grey area of the tenth schedule and the law has to evolve.[xxiii] Halim committee (1998) also suggested to comprehensively define “voluntarily giving up”.[xxiv] Thus, ambiguity in the definitions and interpretations of this term continues to pose problems in the effective implementation of anti-defection law.


4) Is Disqualification Enough?

Another impediment in the implementation of tenth schedule is the lack of effective measures to deter defectors. Though tenth schedule takes away the membership of defector and disqualifies him from holding ministerial position, yet that punishment only holds true till the time the defector is re-elected or the assembly dissolves, whichever is the earliest.[xxv] Therefore, it is clear that more stringent provisions are required to curb the menace of defection. NCRWC also suggested that the defectors should be debarred from holding any public office of a minister or any other remunerative political post till the remaining duration of the legislature.[xxvi]


CONCLUSION

Political defection is a big problem in India and the anti-defection law is far from being perfect. The law has clearly undergone changes to remove the impediments and ensure effective implementation yet there are many ambiguities and loopholes which is still being exploited by the politicians. In these situations, electoral mandate has become nothing more than a joke for political parties. In the last 3 years at least 4 governments have collapsed due to defection. It is therefore, need of the hour to bring about effective amendments to minimise, if not remove, all the impediments that are preventing the effective implementation of the tenth schedule to prevent the corrupt and undemocratic practices of horse-trading and political defections


ENDNOTES [i]M.P. Jain, Indian Constitutional Law 46 (8th ed.,2018). [ii] Sukhbir Siwach, ‘Aaya Ram Gaya Ram’ Haryana’s gift to national politics, The Times of India (Aug. 28, 2020, 11:52 AM), https://timesofindia.indiatimes.com/city/chandigarh/amp39Aaya-Ram-Gaya-Ramamp39-Haryanaamp39s-gift-to-national-politics/articleshow/11188018.cms. [iii] Sumit Mitra, PM Rajiv Gandhi enforces anti-defection law, brightens government’s image, India Today (Aug. 28, 2020, 12:08 PM), https://www.indiatoday.in/magazine/indiascope/story/19850215-pm-rajiv-gandhi-enforces-anti-defection-law-brightens-government-image-769788-2013-11-26. [iv] G.C. Malhotra, Anti-Defection Law in India and the Commonwealth 7 (11th ed, 2005). [v] Jain, supra 1, at 51. [vi] V.S. Rama Devi & S.K. Mendiratta, How India Votes: Election Law, Practise and Procedure 448 (3rd ed., 2014). [vii] India Const. schedule X, ¶ 6. [viii]Rana vs. Maurya, (2007) 4 SCC 270. [ix]Singh vs. Hon’ble Speaker, Manipur Legislative Assembly, Appeal (Civil), 547 of 2020. [x]Hollohan vs. Zachillhu, (1992) 1 SCR 686. [xi]Id. [xii]Jagjit Singh vs. State, (2006) 11 SCC 1; Patil vs. Hon’ble Speaker, Karnataka Legislative Assembly, (2020) 2 SCC 595. [xiii]Singh vs. Hon’ble Speaker, Manipur Legislative Assembly, Appeal (Civil), 547 of 2020. [xiv]Id. [xv]SC issues notice to Goa Assembly Speaker on MLA disqualification proceedings, The Hindu (Aug. 29, 2020, 18:35 PM), https://www.thehindu.com/news/national/sc-issues-notice-to-goa-assembly-speaker-on-mla-disqualification-proceedings/article31846875.ece. [xvi] Ministry of Law and Justice, Report of the Committee on Electoral Reforms (1990), http://lawmin.nic.in/ld/erreports/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf. [xvii] Ministry of Law and Justice and Company Affairs, Report of the National Commission to Review the Working of the Constitution (2002), http://legalaffairs.gov.in/sites/default/files/chapter%204.pdf. [xviii]Singh vs. Hon’ble Speaker, Manipur Legislative Assembly, Appeal (Civil), 547 of 2020. [xix]Supra 16. [xx] Law Commission of India, 170th Report: Reform of the Electoral Laws (1999), http://www.lawcommissionofindia.nic.in/lc170.htm. [xxi]Naik vs. UOI, AIR 1994 SC 1558. [xxii]Inner party dissent will not amount to giving up membership: Sr. Adv Salve for Sachin Pilot camp, Livelaw.in (Aug. 29, 2020, 6:08 PM), https://www.livelaw.in/top-stories/rajasthan-crisis-inner-party-dissent-will-not-amount-to-giving-up-membership-salve-sachin-pilot-camp-160194. [xxiii]Hollohan vs. Zachillhu, (1992) 1 SCR 686. [xxiv]The Anti-Defection Law – Intent and Impact, PRS Legislative Research, https://www.prsindia.org/sites/default/files/parliament_or_policy_pdfs/1370583077_Anti-Defection%20Law.pdf. [xxv] India Const. art. 361B. [xxvi] Supra 17.


ABOUT THE AUTHOR

This blog has been authored by Bhavya Sharma & Rama Raman, both 4th Year B.A., LL.B. (Hons.) students at Chanakya National Law University, Patna.


[PUBLICATION NO. TLG_BLOG_20_115_04]

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