Anti defection law

 Introduction

In recent times, LawsDefection laws have been a fundamental issue due to complete violation of the defection rules in the country by the leaders. Since independence, the practice of defection has been a debatable issue in India. We can take into account, the crisis of Madhya Pradesh Government in March, 2020, wherein Jyotiraditya Scindia along with 22 Member Legislative Assembly (“MLA’s”) gave resignation to the speaker of the assembly which in turn, resulted in a huge blow to the congress as they failed the floor test and accordingly BJP, which had the maximum number of seats came into the power and thereafter Shivraj Singh Chauhan was elected as the Chief Minister of Madhya Pradesh.

This blog primarily focuses to draw out a better understanding into the prospects of defection laws, its developments through precedents and punitive sanctions which are attracted if in neglect of these laws.

 

Background of anti defection law:

In 1967, an MLA from Haryana, Gaya Lal changed his party thrice on the same day."Aaya Ram Gaya Ram" became a popular phrase in Indian Politics after this.

It became a common practice to switch political parties across States which brought down state governments from their power.This raised concerns in the Lok Sabha and a committee was set up under Home Minister Yashwantrao Balwantrao to assess the problem.It was the Chavan Committee that recommended that if a legislator changes party for monetary gains, they should be excluded from the Parliament and also be barred from contesting elections for some time.The anti-defection law was introduced to prevent such floor choosing and was therefore inaugurated under Rajiv Gandhi's rule through the 52nd Amendment.

In 1992, the Tenth Schedule was brought to the Supreme Court and challenged its constitutionality under a landmark case of Kihoto Hollohan v. Zachillhu and others.

In 2003, through the 91st Amendment, the anti-defection law was made more effective to deal with regular defection.It deleted the provisions that protected legislators in case of a split in the party.

It also stated that any legislator disqualified under Tenth Schedule would be disqualified from the executive or ministerial post as well.

 

What is Anti-Defection Law?

● The anti-defection law was introduced in 1985, through the 52nd Amendment Act of 1985.

● It was inserted in the Tenth Schedule of the Indian Constitution and is popularly known as Anti Defection Act.

● Defection has been defined as a "conscious abandonment of allegiance or duty".

● It lays down the process of disqualification on grounds of defection.

● The presiding officer has the authority to disqualify a member on proven grounds of defection.

● The goal was to prevent the legislators from changing their political affiliations during their tenure in office.

● It applies to both the Parliament and the state assemblies.

 

Exceptions in Law:

● Legislators may change their party without the risk of disqualification in certain circumstances. 

● The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. 

● In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

 

What are the important court judgments regarding anti-defection law?

Kihota Hollohon vs. Zachilhu and Others, 1993

Issue: Whether presiding officer’s decision subject to judicial review?

● The law earlier mentioned that the decision of the Presiding officer is not subject to judicial review.

● This condition was removed by the Supreme Court in 1993 (Kihoto Hollohan Case) thus permitting appeals against the Presiding Officer’s decision in the High Court or the Supreme Court.

● But the Supreme Court maintained that there may not be any judicial intervention until the Presiding Officer gives his order.

Ravi S Naik vs. Union of India, 1994

Issue: Whether resignation constitutes “voluntarily giving up membership” of a party?

● The SC interpreted the phrase ‘voluntarily gives up his membership’ and said that the phrase is not synonymous with ‘resignation’ and have a wider meaning.

● A person may voluntarily give up his membership of a political party even though he has not submitted his resignation from the membership of that party.

Vishwanathan vs. Speaker, Tamil Nadu Legislative Assembly (1996)

Issue: What does it mean to be voluntarily giving up a membership?

● The Court stated that 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.

Rajendra Singh Rana vs. Swami Prasad Maurya and Others (2007)

Issue: Presiding officer failing to act on the petition.

● The SC stated that if the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule.

● The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties.

 

Advantages and Issues with the Anti-Defection Law

 

Advantages

● It prevents the menace of political party members from shifting their allegiances.

● Ensures party loyalty among the elected members.

● Provides for a stable and secure Government at both national and state levels.

Issues

● Reduces the accountability of the Government by preventing shifting of allegiances.

● By curbing dissent among the party members, it intrudes upon the members’ right to freedom of speech and expression.

● This Law also undermines the member’s potential to be an effective legislator.

● The issuance of party whips reduces a member of the legislature to a mere voting entity in the House

 

What should be the approach going forward?

First, the Supreme Court needs to adjudicate whether an actual merger of Political Parties is a condition precedent for the merger of Legislature Parties (i.e., the should the merger of Legislature Parties be deemed as merger of Political Parties).

 

Second, the Speaker/Chairperson should give decisions within 3 months as advised by the Supreme Court. Further, an independent tribunal can be created in the long run to decide cases under the Tenth schedule. This would effectively reduce partisan role played by the Speaker.

 

Third, the Law Commission in 1999 and the National Commission to Review the Working of the Constitution (NCRWC) in 2002 had recommended to delete the clause related to merger (Paragraph 4, Exception to Disqualification). Parliament should consider, debate and decide on the recommendations.

 

Fourth, the Dinesh Goswami Committee Report recommended that disqualification of a member should only be attracted in the event a member violates a whip on matters related to Motion of Vote of Confidence, a No-confidence Motion, Money Bill or a Motion of Vote of Thanks to the President’s address.

 

Conclusion

 

As defections continue unabated and Speakers refrain from acting on these developments based on their political loyalties, there is a strong case to reform the anti-defection law. Redefining the merger clause, shifting the adjudicatory power from the Speaker to some other credible authority and even dispensing wholly with the law are measures that jurists have suggested. Additionally the Parliament must re-consider the clause related to the whip to ensure that the Right to Freedom of Speech of the Members of Legislature is not impacted.

Reference :

•https://www.legalserviceindia.com/legal/article-4502-anti-defection-law.html

•Constitution of India(52nd Amendment act)

• https://www.epw.in/tags/anti-defection-law

Writer-Manpreet Kaur

Class-L2204

Registration no-12209765

Student of Lovely Professional University,Phagwara,Punjab India