ANTI DEFECTION LAW IN INDIA- PURPOSE SERVED OR NOT: PALREDDY VINAY REDDY & RADHIKA GARG

Anti-Defection Law in India: Purpose Served Or Not

Author: Palreddy Vinay Kumar Reddy

Co-Author: Radhika Garg

Name of the Institute: Symbiosis Law School, Hyderabad

ISSN: 2582-3655

ABSTRACT

The Anti-Defection law in India came up as a remedy against the unbridled defections in politics which escalated with the succor of corruption and disloyalty. This law provides for a legislator’s or parliamentarian’s disqualification for switching the parties without falling under the ambit of exceptions provided in the Anti-Defection Act. Though this law bestowed a kind of symbolic relief upon the menace of defection, it does not contain such provisions which would make it the panacea to this problem. In this regard, this paper comes up with the purpose of providing an assessment of the provisions laid down in the Anti Defection law which is in the form of the 10th schedule of the Constitution. It also analyses the exceptions available under this specific law, the bright side of the Act, criticisms and the judicial decisions in respect of this law in order to determine whether this Act achieved its objectives in totality or not. The paper also puts some recommendations forward which posses the possibility of improving the existing rules evidently resulting in better implementation and achieving the aims intended by the Anti-defection law in India. The paper concludes by evaluating the results so far with respect to this law and on an optimistic note.

INTRODUCTION

“The most dangerous follower is the one whose defection would destroy the whole party: hence the best follower,” said Friedrich Nietzsche, a famous German philosopher who worked upon philology, nihilism, morality, culture, etc. Though he was not essentially talking about the political parties, there is a huge scope for us to infer ideas relating to these institutions from his observation. If we consider this, the contemporary political scenario is contrasting to the notion proposed by Friedrich. In the present day politics, though the follower who defects the party is not ‘the best’, he/she would be influential enough to destroy the whole party by taking aid of different means.

The term ‘defection’ has been derived from Latin words ‘defectionem’ or ‘defectio’ which means desertion, revolt or failure. The most accepted definition of defection is “To abandon a position or association, often to join an opposing group”.[1]The person who abandons such an institution is called a ‘defector’. In relevance to the political world, it can be understood as a member of legislature abandoning the party over whose ticket he was elected and joining another party without giving up such a position. Usually, an elected representative defects to the winning party in order to hold a position in the office. This practice is also called as ‘horse-trading’. The act of defection in politics has turned out to be a matter of national importance as such incidents amount to the neglect of people’s consciousness. This is considered to be an illegitimate practice because of the disloyalty shown towards the original party with an intention to gain benefits from the other party. In the late 1900s, after proper governments were formed, the cases of defection came into light in several countries and in order to overcome this menace, anti-defection laws were introduced in countries like South Africa, Bangladesh, Singapore, India, etc. Anti-defection laws are framed to curb the problem of defection by putting several stringent sanctions such as disqualification of the defector from the legislature. These laws work as a constraint over the elected representatives from indulging in such practices in order to get the benefits of holding an office to satisfy their lust for power. Particularly in a country like India there was a dire need for such laws because if such problems were not tackled properly, they would tarnish the fundamental principles over which the democratic governments are formed.

HISTORY AND CONTENTS OF 52ND AMENDMENT

Initially, the Indian constitution does not encounter the traces of political parties and their existence as a controlling hand of the nation. Even after a decade of independence till about 1960s no multiple-party system in politics prevailed in India and hence the trick of switching over the parties in order to remain in power was never an issue of concern. Due to the non-existence of multi-party democracy back in the 1960s the need to pass and implement separate laws to stop the defection was not felt. Although there was one national party in India i.e. Indian National Congress controlling the nation from the center and many other small parties existed at the regional level, there was no competition between the Congress Party and the regional parties. However, in Indian politics things seems to have changed only after the elections that held in 1967. As by then there was an emergence of an alliance of regional parties as an opposition to the central ruling party, the competition arose and politicians started striving to be a member of a party in power. This lead to chaos in the system as several instances came up was a legislator from a particular party joined the other without following the procedural resignation which he is supposed to give to the former party before leaving it. This was perceived as a mockery to the faith of people that had been entrusted in a particular party by voting in their favor so that they can govern and bring in the changes for the betterment of the voters and the nation.

1967 Elections: The Turning Point

Elections of 1967 proved to be a turning point for Indian politics as things changed dramatically and were no more in favor of a particular party only which is Indian National Congress. In the year of 1967 out of twenty-seven Indian states sixteen had elections and Indian National Congress faced a terrible defeat in those elections. They were left in a position to form government in only one state and lost the majority in the rest of the states. Altogether, the defeat of a major national party in state polls as a result of a coalition which explicitly took place for the first time in India during the elections of 1967. This period also witnessed the greed of politicians to remain in a position that holds a power which provoked them to indulge in practices like defection and hence within the duration of five years from 1967 to 1971 many M.P’s and M.L.A’s moved from one political party to another without any valid reason to substantiate their sudden migration of political parties. Due to this several state governments fell and the members who left their original party to join other parties got their purpose served as the parties they moved to assigned them with prestigious positions in the government. One such incidence of defection took place in Haryana where a legislator named Gaya Lal switched the party three times within the span of two weeks and this actually highlighted the need for anti-defection laws in India. It took more than a decade for the governments to draft and pass a bill against defection. It came in the form of the 52nd Amendment[2]of the Indian Constitution.

 52nd Amendment: An Amendment against Defection

After almost eighteen years from the 1967 elections, a revolutionary amendment was made to stop defections. In the year of 1985, the 52nd constitutional amendment[3]was made to insert the 10th Schedule[4] in the Indian Constitution which provides the provisions for disqualification of a defector. This particular amendment worked towards bringing in slight changes in few Articles of the Constitution such as Articles 101, 102, 190 and 191 of the Indian Constitution[5]. Grounds for disqualification of a legislator or any member of parliament for being a defector have stated in the 10th Schedule[6] as follows: Member of a particular political party is subject to disqualification when he willingly resigns from the party he belongs to or fails to obey the orders of the head of the party in matters of voting. Another ground for disqualification of a member from an assembly or parliament is when he restrained himself from casting his vote as per the orders given in the form of a whip of the party. If a member elected as an independent joins some party is subject to disqualification. Another ground for disqualification is of a nominated member. A member who is nominated and not a member of a party at the time of his nomination and membership of any other party is not taken by him within the stipulated period of six months from the date on which he acquired the seat is subject to disqualification if, after the expiry of the span of six months, he joins any of the political party. The power to disqualify a member resides with the speaker or chairman of the respective house who is considered as the presiding officer. In the case of the speaker or chairman of the house raising the plea for disqualification, the power to take decisions will be vested upon the member of the house who has been elected by the respective house for this purpose.

Exceptions to Disqualification as per 52nd Amendment

 There are certain exceptions to the disqualification of a member. One such exception is if a member of the legislature is chosen as a chairman or speaker then he has to resign as a member from the party and later on, can rejoin his party if he loses or resigns from the post of speaker or chairman without getting disqualified. Another exception is that there can be a merger of parties if a minimum of two-thirds of the party’s legislators has voted in favor of a merger. Moreover, it is at the option of the rest of the members whether they want to accept the merger or want to act as a separate party. This merger came as an exception as a result of the amendment to the then existing exception in the name of split where if one-third of the party legislators change their party, they wouldn’t be disqualified. Later on, this exception was amended which came to be known as 91st Amendment[7].

91st Amendment: An Amendment to an Exception

In the year of 2003, an amendment came up to make some improvements in the laws related to defection in the form of the 91st Amendment Act of 2003[8]. As per one of the exceptions of disqualification for defection in the 10th Schedule[9] introduced by the 52nd Amendment Act of 1985[10], if the defection is made collectively by one-third members of a particular political party then it would not be considered as defection rather it would be acceptable as a merger. But with the 91st Amendment Act, 2003[11] changes were made in this exception and it states that at-least two-third of the elected members from a political party must be in favor of the merger with another political party for resulting in immunity from disqualification. This amendment of 2003[12] also made it compulsory for the members to leave the membership of legislature by giving resignation before changing the party without any concern as to whether the switching of a party is done by a sole member or by a group of members. If the prescribed procedure is not followed then that particular member of the group of members will be considered as defectors or defectors respectively and have to go through the process of re-election to get back the membership. But the time period in which the group of elected members can change their party to get under the umbrella of this exception is still unclear and ambiguous.

PURPOSE SERVED OR NOT: AN ANALYSIS

We need to understand the positive aspects, criticism and loopholes of the Anti-Defection Act[13] in order to judge whether it had served its purpose or not. Though there are positive aspects of the Act which will take us to the basic question as to why this law was brought, there is a wide criticism over the loopholes and exceptions available to the legislators to get the immunity from the shadow of this Act.

POSITIVE ASPECTS

  1. The main purpose of inducting the 10th schedule[14] to the Constitution of India through the 52nd amendment[15] is to ensure the stability of the government by restraining legislators from joining other parties. In fact, after 1967, there was an exigency to bring this law into existence to stop political parties from employing unethical means such as horse-trading to get into the office. To an extent, the governments gained the confidence to take any kind of decision because there was no fear of the fall of government whose due credit must be given to Anti-Defection law.
  2.  This law makes the representative accountable to the party allegiance and the trust put by his constituency in him. The election of a candidate to any state legislature or the parliament will be dependent upon his personal image as well as his party’s image. Hence, an act of defection would amount to the deception of the faith of people who took the party’s image into consideration at the time of the electorate. The provisions in the Act lays down the fundamental principle that a candidate who wins an election over a party manifesto must stay with his original party while executing its policies. This Act makes the legislators stay loyal to their original party.
  3. Even at this juncture of corrupted politics, few parties are taking a stand against defection by considering their ethical convictions which are indirectly a result of this law. For instance, Andhra Pradesh present Chief Minister Mr.Y.S.Jagan Mohan Reddy made a statement addressing all the opposition members to join his party only after resigning to their post as a legislator and urged the speaker to take any action against all those members who try to violate Anti-Defection law.[16]

 CRITICISM

  1. No Individual Voice: Rule 2 of the Anti-Defection Act[17] lays down that the party members must be obedient to the party rules and opinions, which essentially mean that the whip issued by the party must be followed in case of voting in the House of Parliament or a state legislature. Any act done against this rule would expose the representative to the anti-defection law unless either permitted by the party prior to such voting or such act being condoned within 15 days by the party high command. This can be understood as a curtailment of legislator or parliamentarian’s liberty to choose to vote beyond his party’s boundaries. So for instance, if an elected representative whose party holds the office feels that any of the proposed bills contain deleterious provisions and needs to be opposed, he cannot do so as it would amount to an act against his party’s whip. This is the same case if the representatives from opposition parties vote in support of the bills if their party issues a whip against such a particular bill. The system of mandatorily the following whip undermines the role of representatives to mere voting machines chanting the party lines hence trimming down the benefits of constructive debating spirit of the Parliament which was an essential foundation of democracy. Moreover, in a country like India where assorted issues are taken into consideration by legislators while representing their constituencies, they must be given unlimited power to speak their regional and sectional contemplations. This is totally ignored while drafting this rule. The only institutions in which the system of issuing and following whips is absent are Parliamentary committees. This enables the committees to have substantial discussions and give a chance to members to opine across party bars which will lead to the framing of meritorious parliamentary reports.   

 When compared, the systems laid down in first world countries like the US and UK are contrary to this rule in our country. The Governments in these countries must negotiate and convince their own party members in order to pass a bill. In the same manner, the opposition members have the liberty to support a bill if they are of the opinion that such a bill is advantageous. Here, individual discretion is given utmost importance rather than their party’s notions.

  • Different means: The main purpose of introducing anti-defection law is to stabilize the governments at the center and regional level without giving the legislators a chance to switch sides. But this purpose is being defeated by employing different means. One such course is mass resignation by the legislators. This has been exercised in the recent Karnataka crisis. 18 MLA’s who were in support of the congress-JD(S) coalition rebelled against the government and later on resigned which led to a change in the magic figure of majority and exchange of government. Though these MLAs were disqualified based on the grounds of disobeying whip issued by their parties at the time of trust vote in the assembly because their resignations were not duly accepted by the speaker, it seems like retaliation for their distrust shown towards the government. The disqualification, in the present case, is legal but the pillars of anti-defection law could not be relied upon if the resignations of MLAs were accepted. This would have destabilized the government without the option of having any legal recourse. These means are directly leading to the escalation of corruption. Hence, there is a greater need to bring means which destabilize the governments under the shadow of anti-defection law to achieve its purposes in true spirit.
  • Speaker’s Unlimited Power: Rule 6 of the 10th schedule[18] gives power to the presiding officer i.e chairman of the house or the speaker to decide upon the complaint to disqualify a legislator for defecting parties, which are absolute and unlimited. The elementary notion of giving powers to the speaker is flawed because the roots of the speaker still lie in the political party from which he was flourished to become the speaker. Hence it would be highly unrealistic to expect a speaker disqualifying a legislator who switched from opposition to the government side. This was also opined by Justice J.S.Verma and Justice L.M.Sharma in the minority judgment in Kihota Hollohan’s[19] case.

 Another loophole in this rule is the unlimited time given to the presiding officer to decide upon the complaint of defection. There is no specific time limit laid down by the law through this Act to dispose of the plea. Though, in few cases such as Haryana Vidhan Sabha v. Kuldeep Bishnoi & Ors.[20], and Mayawati v. Markandeya Chand & Ors.[21], the courts gave directions to the presiding officers to decide the complaints without unreasonable deferral, these directions are not generally functional over the speakers in all the circumstances. An instance where this loophole was used is in Talasani Srinivas Yadav’s incident. Yadav, a legislator from Telangana submitted his resignation to the speaker which was not disposed in a reasonable time and defected to the ruling TRS in 2015. He was immediately taken into the state’s cabinet. He continued to be legislator as well as minister for more than a period of nine months without being re-elected or disqualified until when along with a group of MLA’s who defected from TDP over a period of time sought immunity from disqualification in the name of the merger. This case reflects the way in which the Anti-Defection law is being exploited.

  • Mergers: One of the major criticisms of the 10th Schedule is the immunity given to the mergers of the political parties. This exception became a reason for the turbulent increase of political corruption and horse-trading which tend towards defeating the fundamental purpose of introducing the Anti-Defection law. In most of the recent instances where 4 out of 6 TDP MP’s in Rajya Sabha, 10 out of 15 congress MLA’s in Goa, 12 out of 18 congress MLA’s in Telangana and 23 out of 69 YSRCP MLA’s in Andhra Pradesh switched sides, the exception merger were used in order to not fall under the scrutiny by this law. At this juncture, it is evident that instead of serving its purpose, the 10th schedule, because of these exceptions, created a contradictory situation where groups of MLA’s are being lured by the political parties to support them in exchange of money and office benefits, with the sole purpose of staying in power.

There had been wide criticism over para7 of this schedule which restricted the court’s intervention to pass an order or make a decision in the matters of disqualification. Later on, this rule was rectified by the Supreme Court’s decision in Hollohan’s case[22] where the hon’ble court observed that the speaker holds a tribunal’s position and hence his decision can be reviewed by the court in case of question over its legality.

After looking at all the positive and negative facets, it is apparently understandable that this Act did so little to serve its purpose and contained many loopholes in itself that defeated its own provisions. Though this law came up as a result of an urgent need to stop political defections, it didn’t get refurbished with the change of time which is essential for a law to sustain. For the optimum implementation of Anti-Defection law, there was a requirement of relaxing certain provisions and tightening a few others. But this issue was not addressed by the erstwhile governments. Despite the fact that this law served its purpose to an extent and rendered its benefits, for the time being, it substantially failed to be executed in its true spirit.

JUDICIAL INTERPRETATION OF THE 10TH SCHEDULE

Originally, the court did not have jurisdiction over the matters of defection. All the matters related to the disqualification of a member from any House for defection were supposed to be dealt with and proceedings regarding the same to be done in the State Assembly or the Parliament only. But later on, the Supreme Court invalidated the provision which stopped the courts to have jurisdiction over the matters of defection. Hence, at present, all the laws related to anti-defection are covered and decided under the legal analysis of the courts. Several issues were raised by different people and authorities questioning the validity of 10th Schedule and some of the important judgments regarding this are stated below: 

Kihota Hollohan v. Zachilhu and Others[23]

In this case the first issue raised was whether the 10th Schedule has imposed restriction on freedom of speech and expression[24]. The Supreme Court held that the provisions laid down in the 10th Schedule are not in any way undermining the authority and power of democratically elected members of the legislature or Parliament. Hence, these provisions are not in violation of any of the rights as specified under Article 105 and Article 194 of the Indian Constitution[25].

In the same case, an issue was raised regarding the 7th paragraph of the 10th Schedule[26] and the question was whether the jurisdiction of courts in matters of disqualification is constitutional or not. It was held that with the effect of Article 136, 226 and 227 of the Indian Constitution[27], the Supreme Court and the High Court have complete jurisdiction over the matters of disqualification. As such provisions under Article 368(2)[28] need ratification by the state legislature and this 7th paragraph had not been ratified by the State Legislator; hence this paragraph was held to be invalid.

Another issue raised in this case was whether considering the decision given by the Speaker or Chairman to be final is valid or not. The apex court held that legal analysis of the courts cannot be done prior to the decision of Speaker or Chairman.

Ravi S Naik v. Union of India[29]

Here the issue was whether the only resignation constitutes voluntarily giving up membership of a political party. In this case, the court had interpreted the words “voluntarily giving up membership” in a broader meaning. In such a case, it is open to the assumption that a member has voluntarily given up the membership of that party.

Another issue raised in this case was whether the Speaker or Chairman bound to follow the orders of the court. Here the court while referring to the case of Kihota Hollohan[30] said while passing an order under the 10th Schedule[31] a speaker acts as a tribunal and therefore the order passed is subject to judicial review.

Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and Ors.[32]

In this case, an issue was raised as to when the decision for disqualification made by the Speaker can be reviewed by the court. The court, in this case, held that any ignorance by the speaker in the matter of disqualification is considered as the violation of the duties assigned to him by the constitution of India and cannot be taken as a mere mistake of fact.

SUGGESTED REFORMS

  1. The issuance and mandatory abidance by the whip must be restricted to the cases of floor test or money bills upon whom the stability of governments is dependent instead of all kinds of bills. This was also a major observation in the ‘Dinesh Goswami Committee’s Report on Electoral Reforms, 1990’[33] and the ‘170th Law Commission Report’[34].
  2.  The exception of a merger which gives immunity to the legislators from the Anti-Defection Act[35] must be repealed from the 10th schedule[36]. This was also proposed in the same law commission report[37].
  3. The power of presiding officers must be restricted and if possible, it must be given to the governor or president instead of the speaker of the house of Parliament.
  4. For the purpose of the proper application of the Act, the alliances formed pre-poll must be considered as political parties.
  5. A proper system for judicial review and scrutiny must be laid down over the decisions taken by the chairman of the house or speaker in case of disqualification
  6. The term ‘voluntarily giving up’ in the Act is tend to be imprecise and indefinite and a proper interpretation must be provided in the Act itself. This was also recommended in ‘Report on Review of the Anti Defection Law by the Committee of Presiding Officers of the Legislative Bodies in India’[38].

CONCLUSION

The principal aim of curtailing political defections with the insertion of the 10th schedule[39] is achieved to a certain extent and there is a significant requirement to strengthen the existing Anti-Defection law. This law is prone to various challenges and loopholes created by the ingenious minds of politicians in order to come out of the scope of disqualification. These challenges can be faced in an ideal manner only with the help of better coordination between the legislature by making stringent laws and the judiciary by safeguarding the interests of such laws. Also the evolution of this law to a better version was restrained because of political corruption and dishonesty. Hence, it’s high time that our eminent experts of law must revisit the provisions and make necessary changes that would equip our constitution with the powers to defend the principles and values of democracy.


[1]Defection (n.d.) American Heritage Dictionary of the English Language, Fifth Edition (2011)

[2]52nd Amendment of the Indian Constitution, 1985.

[3]52nd Amendment of Indian Constitution, 1985.

[4]10th Schedule of Indian Constitution added by the 52nd Constitutional Amendment, 1985.

[5]Articles 101, 102, 190 and 191 of the Indian Constitution.

[6]10th Schedule of Indian Constitution added by the 52nd Constitutional Amendment, 1985.

[7]91st Amendment of Indian Constitution, 2003.

[8]91st Amendment of Indian Constitution, 2003.

[9]10th Schedule of Indian Constitution added by 52nd Constitutional Amendment, 1985.

[10]52nd Amendment of Indian Constitution, 1985.

[11]91st Amendment of Indian Constitution, 2003.

[12]91st Amendment of Indian Constitution, 2003.

[13]52nd Amendment of the Indian Constitution, 1985.

[14]10th Schedule of Indian Constitution added by the 52nd Constitutional Amendment, 1985.

[15]52nd Amendment of Indian Constitution, 1985.

[16]JBS Umanadh, Jagan tells TDP Defectors to quit and join YSRCP, DH News Service, Jun 13, 2019.

[17]52nd Amendment of Indian Constitution, 1985.

[18]10th Schedule of Indian Constitution added by 52nd Constitutional Amendment, 1985.

[19]Kihota Hollohan v. Zachilhu and Others, (1992) 1 SCC 309.

[20]Haryana Vidhan Sabha v. Kuldeep Bishnoi & Ors., MANU/SC/0647/1998.

[21]Mayawati v. Markandeya Chand & Ors., MANU/SC/0801/2012.

[22]Kihota Hollohan v. Zachilhu and Others, (1992) 1 SCC 309.

[23]Kihota Hollohan v. Zachilhu and Others, (1992) 1 SCC 309.

[24] Article 19(1)(a) of the Indian Constitution.

[25]Articles 105 and 194 of the Indian Constitution.

[26]10th Schedule of Indian Constitution added by the 52nd Constitutional Amendment, 1985.

[27]Articles 136, 226 and 227 of the Indian Constitution.

[28]Article 368(2) of the Indian Constitution.

[29]Ravi S Naik v. Union of India, 1994 Supp (2) SCC 641: AIR 1994 SC 1558.

[30]Kihota Hollohan v. Zachilhu and Others, (1992) 1 SCC 309.

[31]10th Schedule of Indian Constitution added by 52nd Constitutional Amendment, 1985.

[32]Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and Ors., (2007) 4 SCC 270.

[33]Dinesh Goswami Committee’s Report on Electoral Reforms, May 1990.

[34]170th Law Commission Report on Reform of Electoral Laws, May 1999.

[35]52nd Amendment of the Indian Constitution, 1985.

[36]10th Schedule of Indian Constitution added by the 52nd Constitutional Amendment, 1985.

[37]170th Law Commission Report on Reform of Electoral Laws, May 1999.

[38]Report on Review of the Anti Defection Law, 2003.

[39]10th Schedule of Indian Constitution added by the 52nd Constitutional Amendment, 1985.

Leave a Reply

Your email address will not be published. Required fields are marked *

WhatsApp chat