Effectiveness of Anti-Defection Law

  • Category
    Polity & Governance
  • Published
    1st Aug, 2019

Issue

Context

  • At least 16 MLAs of ruling party of Karnataka Assembly had recently tendered their resignations, and with the two independents’ support also withdrawn, the HD Kumaraswamy-led government is in a state of quandary.

The Anti Defection Law and Its purpose

Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.  After such incidents, a need was felt to prevent such political defections which may be due to reward of office or other similar considerations.

The Anti-Defection Law was passed in 1985 through the 52nd Amendment to the Constitution, which added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat “the evil of political defections”.

Anti-Defection provisions under the Tenth Schedule

  • Disqualification
    1. If a member of a house belonging to a political party:
    • Voluntarily gives up the membership of his political party, or
    • Votes, or does not vote in the legislature, contrary to the directions of his political party.
    • However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.

            b. If an independent candidate joins a political party after the election.

            c. If a nominated member joins a party six months after he becomes a member of the legislature.

    • Power to Disqualify
      1. The Chairman or the Speaker of the House takes the decision to disqualify a member.
      2. If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.
    • Exception - Merger
      1. A person shall not be disqualified if his original political party merges with another, and:
        • He and other members of the old political party become members of the new political party, or
        • He and other members do not accept the merger and opt to function as a separate group.
      2. This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.

    Whip and its Role

    • 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.
    • A whip in parliamentary parlance is a written order that party members be present for an important vote, or that they vote only in a particular way.
    • In India all parties can issue a whip to their members. Parties appoint a senior member from among their House contingents to issue whips.
    • The importance of a whip can be inferred from the number of times an order is underlined:
      • A one-line whip, underlined once, is usually issued to inform party members of a vote, and allows them to abstain in case they decide not to follow the party line.
      • A two-line whip directs them to be present during the vote.
      • A three-line whip is the strongest, employed on important occasions such as the second reading of a Bill or a no-confidence motion, and places an obligation on members to toe the party line.

    Analysis

    Main Issue(s) with the Law

    1. Whether the right to freedom of speech and expression is curtailed by the Tenth Schedule.

    The Supreme Court in Kihota Hollohon Case has held that the provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution.

    The court made it clear that it was only in matters pertaining to confidence motion/ no confidence motion and matters integral to party's policy based on which it enjoys support of the electorate, that a legislator is bound by direction issued by the party.

    1. Whether only resignation constitutes voluntarily giving up membership of a political party

    Voluntarily giving up the membership is not the same as resigning from a party. The Supreme Court in Ravi S. Naik v. Union of India has held that 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.

    1. Whether a member can be said to voluntarily give up his membership of a party if he joins another party after being expelled by his old political party

    According to Supreme Court in G.Vishwanathan v. Honourable Speaker, Tamil Nadu Legislative Assembly, once a member is expelled, he is treated as an ‘unattached’ member in the house. However, he continues to be a member of the old party as per the Tenth Schedule. So if he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party.

    1. Finality to the decision of the Speaker/ Chairman
    • According to Article 109(3) of the Constitution, the speaker has to satisfy himself that the resignations are voluntary and genuine and can reject them if he feels they are not. The Speaker has absolute discretion in this matter. The High Courts and the Supreme Court can exercise judicial review under the Constitution. Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen.
    • The irony is that the office of the Speaker which is of paramount significance in a parliamentary democracy at times seems to tow the political party's line by flouting well established principles of law. Speakers have not acted as impartial umpires generally on issues related to defection because they invariable come from the ruling party.
    • For example, in the last Parliament, there was a no confidence motion tabled by a set of MPs. The Speaker refused to consider this, saying that there was too much disturbance in the Lok Sabha, but during the same period allowed the Finance Bill to be passed without discretion.
    • Scenario of Karnataka
      • The Rebel MLAs have moved a plea in the Supreme Court against the Speaker over the delay in acceptance of their resignations.
      • The speaker who hails from the ruling Party (Congress), is trying not to accept the resignations of the rebel MLAs. As a result, they (rebel MLAs) will continue to remain members of the ruling party (the Congress) and if, the party has the issues a whip and if they don’t attend the House, they will face the consequences under the provisions of Anti-Defection.
      • Despite two directions from Karnataka Governor to Chief Minister H.D. Kumaraswamy to hold the trust vote on Friday, the process got put off to Monday, with Speaker adjourning the Assembly.

    Arguments in Favour of Anti Defection Law

    • 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. Also promotes party discipline.

    Arguments Against Anti Defection Law

    • By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people.
    • Interferes with the member’s freedom of speech and expression by curbing dissent against party policies.

    Suggestions

    • Dinesh Goswami Committee on electoral reforms (1990) suggested that?the issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
    • Halim Committee on anti-defection law suggested that the words ‘voluntarily giving up membership of a political party’ and the term ‘political party’ be comprehensively defined.
    • Law Commission (170th Report, 1999) suggested that the Political parties should limit issuance of whips to instances only when the government is in danger.
    • Election Commission suggested that decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
    • Constitution Review Commission (2002) suggested that the vote cast by a defector to topple a government should be treated as invalid and that the defectors should be barred from holding public office for the duration of the remaining term.

    Conclusion

    The law certainly has been able to curb the evil of defection to a great extent. Political instability caused by frequent and unholy change of allegiance on the part of the legislators of our country has been contained to a very 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 recent examples of defection in state Assemblies and even in Rajya Sabha bear this out. It is time for the Parliament to take into consider the important suggestions recommended by various committees and the Honourable Supreme Court and plug the loopholes in the law.

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