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Weekly Current Affairs: April week-2 - MLA disqualified under Anti-defection law

  • Category
    Indian Polity
  • Published
    9th Apr, 2020

Manipur Speaker Yumnam Khemchand disqualified Thounaojam Shyamkumar as a member of the Assembly for defection.

Context

Manipur Speaker Yumnam Khemchand disqualified Thounaojam Shyamkumar as a member of the Assembly for defection.

Background:

  • Speaker Y. Khemchand Singh, in his 32-page order, disqualified state Forest and Environment Minister Thounaojam Shyamkumar as a member of the assembly with immediate effect till the expiry of the house's current term, which ends on March 28, 2022.
  • Following a petition filed by Congress leaders and legislators, the Supreme Court had, earlier this month, invoked the Constitution's Article 142, to disqualify Shyamkumar as a member of the house. The Congress leaders and MLAs in their plea told the apex court that he had violated the provisions of 10th Schedule of the Constitution.
  • Following the Supreme Court order, the Minister had submitted his resignation to the Speaker on March 26.
  • After a thorough hearing of both the sides, the Speaker ordered Shyamkumar’s disqualification.

    • Shyamkumar was elected to the Assembly as a Congress candidate on March 12, 2017, from 7-Andro constituency.
    • The Congress had won 28 seats and the BJP 21. However, the BJP allied with the National People’s Party to form a government.
    • Before he was sworn in as an MLA, Mr. Shyamkumar joined the BJP and became the Minister for Forest and Environment in the government led by N. Biren Singh on March 16, 2017.
    • He was sworn in as a member of the Assembly on March 19.

Analysis

What is Anti-defection Law?

  • The anti-defection law is contained in the 10th Schedule of the Constitution of India. It was enacted by Parliament in 1985. It came into effect on 1st March 1985.
  • The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.
  • The Tenth Schedule lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
  • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
  • This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.  
  • Applicability: The law applies to both Parliament and state assemblies.

The origin of the Law:

  • For a long time, the Indian political scene was besmirched by political defections by members of the legislature. This situation brought about greater instability in the political system.
  • 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.  
  • Legislators used to change parties frequently, bringing about chaos in the legislatures as governments fell.
  • In sum, they often brought about political instability. This caused serious concerns to the right thinking political leaders of the country.
  • Several efforts were made to make some law to curb defections. Starting from private members’ efforts, Bills were brought in by the government at different times. No Bill could be passed because of one reason or the other.
  • However, the most important reason was that there was no consensus on the basic provisions of an anti-defection law.

Finally, in 1985, the government brought a Bill to amend the Constitution and curb defection. The 10th Schedule of the Constitution, which contains the anti-defection law, was added to the Constitution through this amendment.

  • The amendment to the law:
  • In 2003, there was an amendment to the law. When first enacted there was a provision which said if there occurs a split in the original political party and as a result of which one-third of the legislators of the party forms a separate group, they shall not be disqualified.
  • This led to large scale defections and hence this provision was deleted.
  • Provided in the 4th Paragraph of the 10th Schedule, the provision can now be invoked for protection from disqualification if there is a merger.


What are the grounds of disqualification?

  • The Law aims to curb political defection by the legislators. For this, there are two grounds on which a member of a legislature can be disqualified.
    • Voluntarily giving up of membership: If the member voluntarily gives up the membership of the party, he shall be disqualified.
      • Voluntarily giving up the membership is not the same as resigning from a party.
      • Even without resigning, a legislator can be disqualified if by his conduct the Speaker/Chairman of the concerned House draws a reasonable inference that the member has voluntarily given up the membership of his party.
    • Disqualification on the basis of legislature’s actions: If a legislator votes in the House against the direction of his party and his action is not condoned by his party, he can be disqualified. These are the two grounds on which a legislator can be disqualified from being a member of the House.

Exception to the law:

  • However, there is an exception that was provided in the law to protect the legislators from disqualification.
  • The 10th Schedule says that if there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified.

How other countries deal with defections?

Anti- defection law is not only practiced in India but it is prevalent in various other countries like Bangladesh, Kenya, South Africa and other countries.  If India were to look at other democracies to see how they handle defections, it will find that most countries take it very seriously but don't have such severe laws. In fact, India is the only major democracy where voicing an opinion against your party directive can results in such extreme action.

  • Kenya: In Kenya, a member who resigns from his party has to vacate his seat. The decision is by the Speaker, and the member may appeal to the High Court.
  • United Kingdom: In UK, defying a whip meansyou lose party membership and the Cabinet berth if you were a minister, but not your seat. 
  • South Africa: South African Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party that nominated him.
  • Australia: In Australia too, defiance of a whip is a serious action but a member is not forced to resign, but is expected to. There also exists a concept of 'free vote' where members are allowed by their parties to vote according to their conscience and principles.

Does India’s anti-defection law need any changes?

Over the years, the impact of the law has been to create monolithic parties in the legislature: It isn’t so much the number of MPs that matters as the number of parties elected to the parliament.

  • Making members extra responsible: While parties can defect from a ruling coalition to the opposition (and vice-versa), individual Members are bound by the party under whose ticket they were elected. Similarly, while parties in the ruling coalition can order their Members to vote against a government bill, no individual Members from the ruling coalition can rebel on their own. 
  • Ineffective implementation and result: The current form of the Anti-Defection Law has proven to be woefully ineffective in achieving its key objective – that of preventing quid-pro-quo deals and political instability. Consider Karnataka’s political crisis in 2019, for instance.
  • Making Speaker’s position questionable: Apart from other loopholes, the law has evoked scrutiny time and again, and also a demand for reforms for resting 'quasi-judicial powers' in the hands of the Speaker (also a member of the ruling political party).
  • Forcing law: The law strips the MPs and MLAs of their independent moral compass or decision making powers as they are forced to toe the party line.
  • Lack of discussion: The law does not provide sufficient incentive for an MP or MLA to examine an issue in-depth and think through it to participate in the debate. Neither does it forces the ministers to reach out to individual MPs and convince them to vote for a bill on the basis of its merit, which in turn brings down the level of discussions in the House.
  • Ineffective result: The merits of the law are debatable as defections have not stopped altogether and governments are still toppled amid allegations of horse-trading.
    • It was meant to dissuade members from ditching parties, under whose banner they were elected, for petty gains such as cash or positions, promised by another party.
    • But the law is silent on similar negotiations between ideologically different post-poll allies where discussions often get down to each Cabinet berth and the distribution of plush portfolios and
      terms of power.

Recommendations of Dinesh Goswami Committee:

  • The Dinesh Goswami Committeeon electoral reforms, opined in 1990, that an amendment should be made to the anti-defection law to restrict disqualification only to those cases, where an elected member defies a whip only in respect of motion of vote of confidence, which has the power to bring down one government or prop up another.
  • The committee also recommended taking away powers of disqualifying a member from the Speaker or the Chairman of the concerned House, because they too are members of political parties and have been known to favour the Treasury benches on several occasions.


Conclusion:

The law aims to bring down the political defections but due to ever increasing political dishonesty and corruption this law never evolved properly. Politicians found loopholes in this law and used it for their own benefit. It is high time to revisit the issue to combat the menace of corruption and defection which has eroded the values of democracy.

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