The Supreme Court recently commenced hearing to revisit its 2-decade-old verdict on the anti- defection law by which a member elected or nominated by a political party continues to be under its control even after expulsion.
The issue had cropped up after Amar Singh and Jaya Prada, who were members of Rajya Sabha and Lok Sabha respectively, had moved the Supreme Court on their expulsion from the Samajwadi Party on February 2, 2010, anticipating ouster from Parliament.
They had contended that they have landed in a piquant situation as expelled members and apprehended disqualification under the anti-defection law if they chose to defy party's whip on any issue in Parliament. The 2 MP'S pleaded that interpretation of the anti-defection law, as per a 1996 ruling of the apex court, does not apply to them as they did not form their own party.
What was the need for Anti-defection law?
• The 10th Schedule - popularly known as the Anti-Defection Act - was included in the Constitution in 1985 by the Rajiv Gandhi Ministry and sets the provisions for disqualification of elected members on the grounds of defection to another political party. The law was added via the 52nd Amendment Act, 1985.
• The reasons for bringing this law was The formation of such coalition Government at the state after 1967 elections, Where there has been marriage of convenience as constituted out of heterogeneous elements-Political parties often having no ideological similarity coming together only to enjoy power. The consequent dismissal of these coalition governments is also brought about by the dissatisfied and disgruntled legislators who are possibly not accommodated as ministers. As a result of their ever-growing lust for power and positions, the legislators change their party affiliation and jump over to other political parties, which though in a minority, cherish the dream of forming a government on the strength of such synthetic majority
• This has given rise to a very disturbing trend whereby legislators are constantly being lured away from their political parties with a view to toppling existing governments and forming new ones leaving behind a trail of political uncertainty. To prevent Horse trading and aaya ram gaya ram syndrome Anti defection law was introduced.
Key provisions of the Anti-defection law
• Under the Articles 102 (2) and 191 (2), it is mentioned that an elected member will attract disqualification, if he voluntarily offers up his membership of a political party; if he votes or withdraws from voting in such House contrary to any direction issued by his party or anyone authorized to try and do so, without getting prior permission. However the provisions are created with relevance to mergers of political parties. There is no disqualification to be incurred when a legislature party decides to merge with another party and such decision is supported by not less than 2/3rd of its members. Initially the decision of the chair was not subjected to the judicial review. In the year 1993, in Kihoto Hollohan V. Zachilhu case the Supreme Court declared that this provision is unconstitutional on the ground that it seeks to take away the jurisdiction of Supreme Court and High Courts. Hence since 1993, the decision chair is subject to the judicial review. It means the disqualification of a member can be challenged in a court of law on the grounds of malafides.
• However 1985 act had certain loopholes the most important being that a 'defection' by 1/3rd of the elected members of a political party was considered a merger. Such defections were not actionable against. Finally the 91st Constitutional Amendment Act, 2003, changed this. So now at least two-thirds of the members of a party have to be in favour of a “merger” for it to have validity in the eyes of the law.
Why is Anti defection law criticized?
• Some experts criticize Anti-Defection law for transforming the members of Parliament into numbers instead of Members. Since it increased the power of Party whip the MP'S cannot vote on any issue independently. They have to toe the party line otherwise they could be disqualified. This has made those MP'S powerless as they cannot take an independent stand even on those issues which are not core to the party manifesto to which they belong.
• The other defects that this Schedule suffers from The other defects that this Schedule suffers from, is that it does not provide for that rare occasion when considerations of conscience brings about a change in membersnot provide for that rare occasion when considerations of conscience brings about a change inmembers convictions and hence and honorable exit from the current party by virtue of his crossing over to the other side. In other words, it does not admit of any right to dissent on the part of the lawmakers.
• This schedule has confused the word dissent, i.e., defiance of partydirection of whip with that of defection, as it has provided for unseating of members by the party leadership for voting against the party whip on the floor of the house. In UK, Canada, Australia and New Zealand, which also have similar parliamentary system as ours, this defiance is not fraught with any such penal consequences
• Its discrimination between an independent member and a nominated member is illogical. If the former joins a party, he is disqualified while the latter is allowed to do the same. A nominated member would not be disqualified if he joins the party within the 1st 6 months of being nominated. This provision is illogical and without any sound basis.
• Its vesting of decision-making authority in the presiding officer is criticized on two grounds. Firstly, he may not exercise this authority in an impartial and objective manner due to political exigencies. Secondly, he lacks the legal knowledge and experience to adjudicate upon the cases. In fact, 2 Speakers of the Lok Sabha (Rabi Ray-1991 and Shivraj Patil-1993) have themselves expressed doubts on their suitability to adjudicate upon the cases related to defections.
What changes are required in the anti-defection law?
• Firstly the powers of whip should only be reduced. Disqualification provision should be only imposed on Legislators when he votes against the stand taken by the party on those matters which are core to the party's manifesto. On Other issues Legislators should be allowed to vote on the basis of their own viewpoint on the issue.
• Secondly some of the absurd and illogical provisions like nominated member can only join any party within first 6 months should be abolished; instead they should not be allowed any party within their term in Rajya sabha.
We require anti-defection law in India to prevent horse trading and widespread defection which was prevalent in the pre 1985 era, However it should be amended and certain safeguards mentioned above should be introduced so that the Legislators are not reduced to just numbers and they can play an role of the representatives of the people and not just representatives of the party.