Context : Amid the ongoing political turmoil in Himachal Pradesh, six Congress legislators, who had cross-voted in favour of the BJP in the Rajya Sabha elections on February 27, were disqualified from the Assembly by Speaker Kuldeep Singh Pathania.
About Anti Defection Law
- Election is a vital component in a democratic system of governance, where emergence of political parties with different and diverse ideologies is but natural. Free and fair competition amongst political parties at the hustings for wresting power to govern the country is indicative of a vibrant democracy.
- Political parties give concrete shape to divergent ideologies and are essential for the success of any democracy. However, defections are a matter of concern for the party system.
- The anti-defection law deals with situations of defection in Parliament or state legislatures by:
- Members of a political party
- Independent members
- Nominated members.
- In limited circumstances, the law allows legislators to change their party without incurring the risk of disqualification
- The purpose of the law is to curb political defection by the legislators. The law applies to both Parliament and state assemblies.
Background of Anti Defection Law
- The practice of ‘defection’ in Indian politics has always been the breeding ground of political instability and uncertainty in the country, often tending to shift the focus from ‘governance’ to ‘governments’. The infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous defections by the legislators in the 1960s.
- Steps for bringing forward a legislation in India to curb the malaise of defections can be traced to a private member’s resolution moved in the Fourth Lok Sabha on 11 August 1967 by Shri P. Venkatasubbaiah. In consonance with the opinion expressed in the resolution, a Committee on Defections, was set up by the Government under the chairmanship of the then Union Home Minister, Shri Y.B. Chavan
- Constitution Amendment bill were introduced in 1973 and 1978 to curb defectio but the attempts failed in view of stiff opposition and dissolution of Lok sabha.
- The Government introduced the Constitution (Fifty-second Amendment) Bill in the Lok Sabha on 24 January 1985 which led to amendment in Article 101, 102, 190 and 191 of the Constitution to provide the grounds for vacation of seats for the disqualification of the members; and also inserted Tenth Schedule. It lays down provisions regarding disqualification on the grounds of defection. The Bill was passed by the Lok Sabha and the Rajya Sabha on 30 and 31 January 1985, respectively.
Key Provisions
- Disqualification on ground of defection: A legislator belonging to a political party will be disqualified if he:
- (i) voluntarily gives up his party membership, or
- (ii) votes/abstains to vote in the House contrary to the direction issued by his political party. A member is not disqualified if he has taken prior permission of his party, or if the voting or abstention is condoned by the party within 15 days.
- Independent members will be disqualified if they join a political party after getting elected to the House. Nominated members will be disqualified if they join any political party six months after getting nominated.
- Exemptions in cases of merger: Members are exempted from such disqualification when at least twothirds of the original political party merges with another political party.
- Further: (i) the members must have become members of the party they have merged with/into, or
- (ii) they should have not accepted the merger and choose to function as a separate group.
About Speaker’s Power under Anti Defection Law
- The ultimate evaluator in the case of disqualification under the Tenth Schedule is the Speaker of the House.
- The Speaker can disqualify a member-only if a claim of disqualification is made before him under Para 2 of the Tenth Schedule.
- Under the light of Articles 102 and 191 of the Constitution and the Tenth Schedule, the Speaker’s exercise is of judicial nature as he can take a decision only after a member files a disqualification petition.
Amendments
- When it was enacted first, there was a provision under which if there occurs a split in the original political party and as a result of which one-third of the legislators of that party forms a separate group, they shall not be disqualified.
- This provision resulted in large scale defections and the lawmakers were convinced that the provision of a split in the party was being misused. Therefore, they decided to delete this provision.
- Now, the only provision which can be invoked for protection from disqualification is the provision relating to the merger.
Is the law, as it stands now, open to interpretation?
- The first ground for disqualifying a legislator for defecting from a party is his voluntarily giving up the membership of his party. This term “voluntarily giving up the membership of his party” is susceptible to interpretation. As has been explained earlier, voluntarily giving up the membership is not the same as resigning from a party.
- The Supreme Court has clarified this point by saying that the presiding officer (Speaker), who acts as a tribunal, has to draw a reasonable inference from the conduct of the legislator.
Evaluation
- The law certainly has been able to curb the evil of defection to a great extent. But, of late, a very alarming trend of legislators defecting in groups to another party in search of greener pastures is visible.
- The key problem with a law that penalises legislators for acting independently is that it goes against the idea of a parliamentary democracy
- In recent years, there have been several cases where legislators have made use of the merger provision in the Anti-Defection Law to switch between political parties.
- Presiding officers have also not been impartial when deciding cases of defection
- The recent examples of defection in state Assemblies and even in Rajya Sabha bear this out. This only shows that the law needs a relook in order to plug the loopholes if any. But it must be said that this law has served the interest of the society. Political instability caused by frequent and unholy change of allegiance on the part of the legislators of our country has been contained to a larger extent.
International Experience
- Most advanced democracies do not disqualify legislators for defecting against their parties. Such members may be subject to internal party discipline including expulsion from the party. The seating arrangement of the person changing his party allegiance may be modified in the House.
- Only in five other countries, members can be disqualified from the House for changing political allegiances as well as voting against the party line. These are Bangladesh, Guyana, Pakistan, Sierra Leone, and Zimbabwe. However, in Pakistan a member can be disqualified from voting against party lines only in certain cases. These include: (i) election of the Prime Minister/Chief Minister, (ii) vote of confidence/no-confidence, and (iii) money Bills or constitution amendment Bills
Conclusion
- The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
- Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue. Several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions.
Way Forward
- 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.
- 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).