Issue

CONTEXT:

• The Madras High Court upheld the June 14,2018 order of disqualifying 18 rebel AIADMK MLAs.
• Background: The 18 AIADMK MLAs were disqualified on September 18 last year under the anti-defection law after they met the governor and expressed loss of confidence in Chief Minister Palaniswami of Tamil Nadu. 

ABOUT:

Anti-Defection Law:

• The anti-defection law was passed by parliament in 1985.
• The 52nd amendment to the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection.

Who is considered as defected?

• A Member of Parliament or state legislature was deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote.
• Independent members would be disqualified if they joined a political party.
• Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.

The law also made a few exceptions:

• Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post.
• A party could be merged into another if at least two-thirds of its party legislators voted for the merger (Initially it was one third 91^st amendment act made it two third).
• The law initially permitted splitting of parties, but that has now been outlawed.

Analysis

Challenges and Interpretations:

Does the law impinge on the right of free speech of the legislators?

• This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others).
• The court said that “the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct above certain theoretical assumptions.”
• It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.

What constitutes “voluntarily” resigning from a party? 

• Various judgements and orders indicate that a member who publicly opposes the party or states his support for another party would be deemed to have resigned from his party.
• News reports may be used as evidence for this purpose.

Can the decision of the presiding officer be challenged in the courts? 

• The law states that the decision is final and not subject to judicial review.
• The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.

Issues for consideration

Should the law be valid for all votes or only for those that determine the stability of the government (such as the confidence and no-confidence motions)? 

• The main intent of the law was to deter “the evil of political defections” by legislators motivated by lure of office or other similar considerations. However, loss of membership is hardly a penalty in cases ahead of the scheduled time of general elections. It also loses significance if the House is likely to be dissolved. 
• On the other hand, the voting behaviour may be affected even on issues not related to the stability of the government. A member may be unable to express his actual belief or the interests of his constituents. Therefore, a case may be made for restricting the law to confidence and no-confidence motions.
• The Dinesh Goswami Committee on electoral reforms (1990) recommended this change, while the Law Commission (170th report, 1999) suggested that political parties issue whips only when the government was in danger.

Should the law apply only to pre-poll alliances?

• The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances. 
• The Law Commission proposed this change with the condition that partners of such alliances inform the Election Commission before the elections.

Should the judgment be made by the presiding officers?

• Several MPs had raised this issue at the time of passage of the law.
• The Supreme Court upheld the law in the Kihoto Hollohon
• The Goswami Committee, the Election Commission and the Venkatachaliah Commission to Review the Constitution (2002) have recommended that the decision should be made by the president or the governor on the advice of the Election Commission. 
• This would be similar to the process for disqualification on grounds of office of profit.

Should there be any additional penalties on defectors?

• The Venkatachaliah Commission recommended that defectors should be barred from holding any ministerial or remunerative political office for the remaining term of the House.
• It also said that the vote of any defector should not be counted in a confidence or no-confidence motion.

Arguments in favour of Anti-Defection:

• Provides stability to the government by preventing shifts of party allegiance.
• Ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party policies.
• Promotes party discipline.

Arguments against Anti-Defection:

• Legislators often argue that defection is a matter of choice and as individuals they have a right to decide who to support.
• Several democracies have not adopted an anti-defection law, even though legislators often switch to the other side.
• In the U.K., Australia and the U.S., parliamentarians and senators often take positions contrary to their parties or vote against the party’s view, yet continue within the same party.
• Legislators should be allowed to express their own views and a defection law amounts to curtailment of the delegate’s freedom of choice.
• Anti-Defection goes against the basis of a representative democracy in which the elected representative is expected to act in public interest and not party interest.
• The anti-defection law breaks the link between the elected representative and his electors.

Way Forward:

The law succeeded in checking the regular phenomenon of unstable governments and horse-trading due to floor crossing by legislators. However, the law has many ambiguities and questions have raised time and again on the law. Recommendations of Election commission, Law commission, Dinesh Goswami committee should be discussed and applied by the political parties.

Learning Aid

1. The Anti-Defection law succeeded in checking the regular phenomenon of unstable governments and horse-trading due to floor crossing by legislators. However, it played a huge role in encouraging the centralisation of India’s political parties. Discuss.

2. What is Anti-Defection Law? Why India need this law? What are the amendments that have been made to Anti-Defection law since its inception?

3. It is said that “Anti defection law impinges on the right of free speech and choice of legislator”. Critically analyse. Also, discuss the observation made by Supreme Court on this issue.

4. Discuss the recommendations made by Election Commission, Law commission and Dinesh Goswami committee regarding the Anti-Defection Law. Also discuss few of the important Supreme Court interpretation given regarding this law.