The Anti-defection law has played a crucial role in political stability, but there are gaps which need to be addressed to make it more effective and impartial.
About Defection In Political Terms
- Defection refers to a member of a political party leaving one party to join another or become independent.
- This act can disrupt party stability and alter the balance of power in legislative bodies.
Need for an Anti-Defection Law in India
- Frequent Party-Switching: In the 1960s and 1970s, legislators would often switch parties mid-term, leading to governments losing majorities and collapsing, forcing new elections.
- “Aaya Ram, Gaya Ram” Syndrome: The term became popular after a legislator in Haryana, Gaya Lal, switched parties three times in a single day.
- Erosion of Public Trust: Frequent defections by legislators for personal gain, such as ministerial positions and financial incentives, raised corruption concerns and eroded public trust, led to government instability and undermined electoral mandates.
- By limiting defections and horse trading of legislators, the anti-defection law aimed to uphold the democratic integrity of India’s parliamentary system.
- Ensuring Party Loyalty: The law aimed to ensure that legislators stayed loyal to their party’s platform and followed party discipline, particularly on key issues like budget votes and confidence motions.
- Need for Government Stability: A stable government is necessary to implement policies effectively and provide consistent governance.
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About Anti Defection Law Of India
- The Anti-Defection Law in India aims to prevent elected MPs (Members of Parliament) and MLAs (Members of Legislative Assembly) from switching parties or disobeying whips on key votes after their election.
- This law discourages “party-hopping,” which destabilises governments and undermines electoral mandates.
- Incorporation: Parliament incorporated the Anti Defection Law into the Constitution as the Tenth Schedule via the 52nd Amendment Act, 1985.
- Grounds for Defection:
Supreme Court Judgements Relating to Anti Defection Law In India
- Kihoto Hollohan vs. Zachillhu & Ors (1993): The Supreme Court upheld the constitutional validity of the Tenth Schedule (Anti-Defection Law).
- It ruled that the decisions of the Speaker under the Tenth Schedule are not final and are subject to judicial review.
- Grounds for review include:
- Malafide intentions.
- Perversity of the decision.
- Ravi S. Naik v. Union of India (1994): The words “voluntarily giving up membership” have a wider meaning.
- An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party.
- Keisham Meghachandra Singh vs. The Hon’ble Speaker Manipur Legislative Assembly & Ors (2020): The Supreme Court ruled that the Speakers of assemblies and Parliament are required to decide on disqualification pleas within three months, except in extraordinary circumstances.
- The Supreme Court also recommended replacing the Speaker’s role in anti-defection cases with an independent tribunal or a body appointed by the Election Commission of India.
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- Voluntarily Relinquishing Membership: If an elected member voluntarily gives up his membership of a political party.
- Voting Contrary to Party Direction: If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorised to do so, without obtaining prior permission.
- Independent Elected Member: If any independently elected member joins any political party.
- Nominated Member: Becomes 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 in the House.
- He may join any political party within six months of taking his seat in the House without inviting this disqualification.
- Exceptions to the Anti-Defection Law:
- Merger of Parties: A member goes out of his party as a result of a merger of the party with another party.
- As per the 1985 Act, A merger takes place when two-thirds of the members of the party have agreed to such a merger.
- Presiding Officer Voluntary Give up: A member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office.
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Adjudicating Authority of the Anti-Defection Law
- Deciding Authority:
- Disqualification questions due to defection are determined by the presiding officer of the respective House:
- Chairperson in the Rajya Sabha (RS)
- Speaker in the Lok Sabha (LS)
- Procedure: The presiding officer can take action on a defection case only upon receiving a formal complaint from a member of the House.
- Before reaching a final decision, the presiding officer must provide the member against whom the complaint is made an opportunity to submit their explanation.
- Lack of Time Limit:
- There is currently no stipulated time frame for the presiding officer to make a decision on defection cases, leading to potential delays.
- Judicial Review: The decisions of the Speaker under the Tenth Schedule are subjected to judicial review.
- 52nd Amendment Act, 1985: The Tenth Schedule of the Indian Constitution, also known as the Anti-Defection Law, was added.
- It included a provision allowing for splits if at least one-third of members defected.
- This often led to mass defections.
- 91st Constitutional Amendment Act, 2003:
- Limit on Council of Ministers: The total number of ministers, including the Prime Minister, in the Central Council of Ministers cannot exceed 15% of the total strength of the Lok Sabha.
- Limit on State Council of Ministers: The total number of ministers, including the Chief Minister, in a state Council of Ministers is limited to 15% of the total strength of the Legislative Assembly, with a minimum requirement of 12 ministers.
- Disqualification from Ministerial Appointments: A member of either House of Parliament or state legislature disqualified due to defection is also disqualified from being appointed as a minister.
- Disqualification from Political Posts: Members of Parliament or state legislatures disqualified due to defection are also disqualified from holding any remunerative political position.
- Raising the threshold of Split Provision: Raised the threshold for party splits from one-third (introduced via 52nd Amendment Act) to two-thirds of members agreeing on a merger.
- This made it more challenging for small-scale defections to occur and reduced the incidence of such political manoeuvring.
Challenges in Effective Implementation of the Anti Defection Law In India
- Delays in Decisions: A major issue is the delay in resolving defection cases, often spanning months or years, allowing defectors to retain their seats and defying the law’s intent.
- Discretionary Power of Speaker: The Speaker or Chairperson’s role, with no set time limit for decisions, allows for potential misuse and partisan bias, undermining timely enforcement.
- Whip: It is an official directive from a political party to its members in a legislature, instructing them on how to vote on specific issues.
- The office of ‘whip’, is mentioned neither in the Constitution of India nor in the Rules of the House nor in a Parliamentary Statute.
- It is based on the conventions of the parliamentary government.
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- Lack of Transparency in Party Whips: Internal party whips, meant to enforce discipline, are often unclear or inadequately communicated, leading to disputes on whether members were adequately informed about their party’s stance.
- This lack of clarity makes it difficult to determine the legitimacy of defection cases.
- Judicial Review and Legislative Autonomy: While the decisions of the Speaker or Chairperson regarding defection cases are subject to judicial review.
- Courts typically refrain from intervening, emphasising on the need to respect the autonomy of the legislature.
- Loophole for Defections: The anti-defection law allows a group of members to switch parties without penalty if they comprise at least two-thirds of their original party.
- This enables opportunistic mergers and splits and encourages “horse-trading” among legislators.
- Dinesh Goswami Committee Report (1990): The Dinesh Goswami Committee on Electoral Reforms (1990) had recommended that disqualification on grounds of defection should be limited to:
- an elected member voluntarily giving up membership of his political party,
- voting contrary to the party whip only in respect of vote of confidence/no-confidence, money bill, or motion of vote of thanks to the President’s address.
- Hashim Abdul Halim Committee Report (1994): The words ‘voluntarily giving up membership of a political party’ should be comprehensively defined.
- Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members.
- Second Administrative Reforms Commission: According to 2nd ARC, decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
- 170th Report of the Law Commission of India (1999): Recommended provisions for disqualifying legislators who switch parties under various circumstances.
- Report of the National Commission to Review the Working of the Constitution (2002): Advocated for strengthening party discipline and accountability.
- Proposed revising the threshold for mergers and clarifying the definitions related to defection.
- 255th Report of the Law Commission of India (2015): Recommended comprehensive reforms to the Anti-Defection Law to enhance its robustness.
- Suggested introducing provisions for disqualification based on the member’s actions rather than just party affiliation.
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Measures That Can Be Taken To Strengthen the Defection Law
- Time Frame For Defection Cases: To ensure prompt decisions, establish a four-week deadline for resolving defection cases.
- If not resolved within this period, the defecting member should be deemed disqualified.
- Public Notice of Party Whips: Political parties should make whips publicly available, either via newspaper announcements or electronic communication, to improve clarity and accountability.
- Strengthen, Not Sideline the Speaker’s Role: Instead of replacing the Speaker with an independent tribunal as suggested by the 2020 Supreme Court case (Keisham Meghachandra Singh), there should be reforms that focus on increasing accountability and transparency in the functioning of the Speaker.
- Judicial Recourse: Permitting direct appeals to the Supreme Court or High Courts in specific instances could offer essential safeguards against arbitrary decisions related to the Anti-Defection Law.
Management of Defections By Other Countries
- United States: In the U.S., party loyalty is often maintained through political norms and informal sanctions rather than formal anti-defection laws.
- United Kingdom: The UK employs a whip system to enforce party discipline.
- Political defections are not explicitly prohibited by law.
- South Africa: South Africa’s constitution includes provisions to disqualify members who switch parties, reinforcing the importance of party loyalty.
- Canada: Canadian political parties use caucuses to manage discipline, where members are expected to vote in line with the party.
- Defections can lead to expulsion from the party.
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Conclusion
With the Government’s “One Nation, One Election” vision, Anti Defection reforms are critical to ensure party loyalty and electoral integrity so that the democratic stability can be enhanced.
October 26, 2024
