Anti-Defection: The Law, The Debate, The Criticism, The Suggestions

Anti-Defection: The Law, The Debate, The Criticism, The Suggestions | Overview

• Role of the Speaker
• The Constitution (Ninety First Amendment) Act, 2003
• Major Supreme Court Judgements on Anti Defection Law
• Critical Analysis
• Criticism of the Act
• Suggestions

The most deplorable form of political corruption is Defection. This form of corruption attaches a price tag on legislators for their change in party membership. This price tag is attached and negotiated with the aim to grab power, topple governments, and mostly subvert the electoral mandate. The need to have an anti-defection law was expressed as long back as 1969, by a committee led by the then Home Minister, Y.B Chavan.^[1]

It is unfortunate that nascent democracies have to deal with this problem and our legislators have consistently made an effort to provide for sufficient checks and balances to ensure stable governments to the citizens of this country. The journey of the law against defection took a tangible turn with the Fifty-Second Constitutional Amendment Act and then the Ninety First Constitutional Amendment Act. The High Courts and Supreme Court have also played an indispensable role in filling the lacuna and tying strings to make this legislation that is enshrined in the Xth Schedule anything but a toothless tiger.

This article discusses the content of the Anti Defection law as is in the Xth Schedule, its peculiar features at the time of passing, the role of the Speaker, the two instrumental amendments (52nd and 91st) to the Constitution, the criticism to the law, suggestions and two interesting points to ponder regarding the debate with respect to intellectual growth v. the sanctity of an electoral mandate, and the present ways and means through which defection is still carving its ill effects and destabilising governments.

With the 52nd Amendment to the Constitution, Schedule X was added and it contained the law of anti-defection.

An elected member would lose his/her seat when:^[2]

• He/She voluntarily gives up his/her membership of such political party
• If he/she votes or abstains from voting in such House contrary to the direction issued by the political party to which he/she belongs without obtaining prior permission of the party or such act having not been condoned by the political party within 15 days of such voting
• If an Independent Member joins a political party after the election is over
• If a nominated member joins a political party after the expiration of 6 months since he took oath as a member

There were exceptions to the Anti Defection law as well. This implied that even though a shift in party membership may happen with respect to an elected member, in certain situations, such elected member shall not lose his/her seat because of it. These situations included the following:^[3]

• Party Split: The disqualification would not occur if the member that has defected, constitutes one among the group of other people from the same political party that have decided to defect and such group must not be lesser than 1/3rd of the political party’s strength in the House.
• Party Merger: Where two or more political parties have decided to merge by a 2/3rd majority of the total strength of the party in the legislature.
• Resignation of Speaker/Deputy Speaker, Chairman/Deputy Chairman from the Party Membership: Where a member of the Lok Sabha/Vidhan Sabha, before the election of a Speaker/Deputy Speaker or Chairman/Deputy Chairman, decides to forsake his party membership and becomes a non-party entity. These provisions would also not apply to such a person when, after serving their term in that position, he/she may join any political party.

The Passage of the Bill was characterised by certain unique features :^[4]

• For the first time in the history of independent India, a Constitutional Amendment was passed by the Lok Sabha unanimously.
• The ruling party with a thick majority had gone out of its way to cater to the opposition and amend the proposed legislation likewise.
• The Bill had been sponsored and pushed through in the Parliament by a party whose problem was not defectors leaving its ranks, but defectors wanting to join its ranks.

ROLE OF THE SPEAKER

Whether a member is subjected to disqualification because of defection, is to be decided by the Speaker of the House. It is appalling yet true that changes in the government have seen changes in the appointment of the Speaker as well, pointing towards a disturbing partisan trend.^[5]

This trend depended upon whether the defectors were changing towards the Speaker’s party or not. It is also observed that due to the Speaker’s loyalty towards the ruling party because it is on their support that he/she has been appointed as Speaker, it would be unrealistic for him/her to work without party considerations.

In this regard, a suggestion was put forth by the National Commission to Review the workings of the Constitution stating that the power to disqualify members on the determination of defection should be taken away from the Speaker and vested in an independent institution like the Election Commission.^[6] Such an institution could be trusted to not be motivated by political incentives or reinforcements and would have no considerations to cater to being an autonomous body.

THE CONSTITUTION (NINETY FIRST AMENDMENT) ACT, 2003

This Constitutional Amendment Act came in 2003 and brought two major changes to the anti-defection law of the land. First, it limited the number of Ministers that could exist in a Cabinet by putting the upper limit of 15% of the total members of the House. This move ensures that cabinet portfolios are not created and sold at whimsical terms, thus encouraging corruption and defection.^[7]

Secondly, a ‘merger’ will gain validity in the eyes of law only if it is agreed upon by 2/3rd of the political party’s members in the House. However, changing political sides is not allowed anymore in any form as an exception to defection and the members of the political party in the House who wish to switch would have to resign from their legislative posts and seek a fresh electoral mandate.^[8]

MAJOR SUPREME COURT JUDGEMENTS ON ANTI DEFECTION LAW

1. Kihoto Hollohan v. Zachillhu and Ors (1992)

It was this judgement that held the X Schedule to be constitutionally valid and not in violation of the right to freedom of speech and expression or democratic rights of members of the State Legislatures. It also ruled that there exists finality with respect to the decision of the Speaker/Chairman of the House but that the same was subject to judicial review. The High Court and Supreme Court mustn’t delve into any matter before the stage of the passing of a decision by the Speaker/Chairman.^[9]

2. G Vishwanathan v. The Hon’ble Speaker, Tamil Nadu Legislative Assembly (1996)

In this case, the issue that arose was whether a member elected to the House or Legislative Assembly who is expelled from his/her party can be considered to have defected if he/she joins another political party upon expulsion.

The Court decided that such an individual would be considered to have ‘voluntarily given up his/her membership to the old party’. This is so because even though such a person is an unattached member of the House after expulsion from his/her political party, in the eyes of the X Schedule, he/she is a member of his/her old political party only.^[10]

3. Shrimnath Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly and Ors (2019)

This judgement was based on separate petitions filed by individuals who were disqualified by the Speaker of the Karnataka Legislative Assembly on the grounds of defection. It was held that the Speaker’s decision with respect to disqualification of members could be judicially reviewed on only four grounds as the Speaker was a Constitutional functionary and is thus presumed to have functioned with the highest standards of constitutionalism. These grounds were mala fide, perversity, violation of the constitutional mandate, and order passed in violation of natural justice.

On the issue of whether disqualification proceedings would cease to continue if resignations were tendered, the Court ruled that disqualification relates back to the date when the action of defection took place and this fact will not vanish because resignation is tendered to the Speaker.^[11]

CRITICAL ANALYSIS

The result of defection is often the power grab and subversion of the electoral mandate. However, this greed to destabilize your political opponent is so intense in our yet to mature democracy that other ways and means have been developed to do the same. With Jyotiraditya Scindia resigning from Congress and joining BJP while being elected via a Congress ticket and being a part of the running government, there is a need to acknowledge that defections to destabilise the government are taking place still, except, now they happen in form of mass resignations like the 22 MLAs that resigned from Congress along with Scindia.^[12]

A government formed by a thin majority would automatically lose support and the legislature would dissolve, forcing the ruling party to fight another election to get a fresh mandate. Not only is this harmful as voting is still considered a chore for the Indian masses that have a low voter turnout, but it also unfairly puts the party of the people’s choice at a very disadvantaged position with lesser means to campaign and convince another time. It also keeps the state from functioning under the leadership of a government consisting of the people’s representatives for the long period that exists until the electoral mandate is finalised again.

Another interesting debate under this subject is intellectual growth v. the sanctity of an electoral mandate. The faction that did not support an anti-defection law argued that legislators must not be forced into straight-jacketed boxes and there has to be an acknowledgement of the occurrence of an intellectual metamorphosis resulting in a change in party affiliation.

Political parties are made up of people and ideologies and both these elements are bound to change and grow. Therefore, care should be taken to ensure that political parties are not hindered from growing organically and transforming into what may be exactly something which the nation requires in their elected representatives. Democracy functions on the freedom of thought and expression. Individual liberty is the core of our democratic values and only in a conducive environment where the freedom to experiment with your thought and expression is granted, can the best possible growth occur.^[13]

CRITICISM OF THE ACT

• First and foremost, this law would lead to toxic accumulation of power with the party leaders as autocratic whips would be issued at whimsical terms, violating which would lead to disqualification under the Anti Defection Law. The freedom of an individual to choose to disagree with its party’s decisions would not exist. All members of a party would be expected to act like puppets of one supreme master. The spirit of democracy gets barbarically strangled when elected plenipotentiaries are forced to forego their reason and blindly support or reject anything and everything that their political party says.
• Such legislation would discourage democracy within party structures and encourage dictatorial leadership.
• The exception of Party split can be greatly misused as it may be so that only a handful of people from a particular party have been elected to the House and therefore the underlying premise of attributing legitimacy to the decision of a fraction of the party members as opposed to an individual would ultimately be proven foolish because an individual or two only might constitute 1/3rd of a party in the House.
• The original, unamended Act had no provision of a judicial review to the decision of the Speaker, thus subjecting the Speaker and his/her decisions to the high risk of being dishonoured and rejected, thus tarnishing his/her position.

SUGGESTIONS

• The Whip issued by the political party becomes mandatory to abide by however it would be healthier for individual liberty as well as the quality of democracy in the country if the Whip is used only in such cases which are critical to the party’s life. These decisions could be perhaps a Confidence or a No Confidence motion, or the passing of a Finance Bill. In all other instances, disagreeing with the party directive must not constitute defection.^[14]
• The decision with respect to disqualification must be made by the President/Governor on the advice of the Election Commission. This would ensure that the partisan tinge to the decision is removed as far as possible and the integrity of the Speaker’s office is preserved.^[15]

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^[1] Ministry of Home Affairs, Report of Committee on Defections under the Chairmanship of Shri Y. B. Chavan (1969)

^[2] The Constitution (Fifty-Second Amendment) Act, 1985

^[3] Ibid

^[4] Sachdeva, P. (1989). Combating Political Corruption: A Critique of Anti-Defection Legislation. The Indian Journal of Political Science, 50(2), 157-168. Retrieved April 17, 2020, from www.jstor.org/stable/41855903

^[5] Gehlot, N. (1991). The Anti-Defection Act, 1985 And the Role of the Speaker. The Indian Journal of Political Science, 52(3), 327-340. Retrieved April 17, 2020, from www.jstor.org/stable/41855565

^[6] Report of the National Commission to Review the working of the Constitution, Para 4.18.2

^[7] The Constitution (Ninety First Amendment) Act, 2003

^[8] Ibid

^[9] Kihoto Hollohan v. Zachillhu and Ors, 1992 SCR (1) 686

^[10] G Vishwanathan v. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, AIR 1996 SC 1060

^[11] Shrimnath Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly and Ors, Writ Petition (civil) No. 992 of 2019

^[12] Dhananjay Mahapatra, “Does the Anti Defection law need an overhaul?”, THE TIMES OF INDIA, https://timesofindia.indiatimes.com/india/does-anti-defection-law-need-an-overhaul/articleshow/74643907.cms

^[13] Bellamy, R., & Mason, A. (2003). Introduction. In Bellamy R. & Mason A. (Eds.), Political concepts (pp. 1-3). Manchester; New York: Manchester University Press

^[14] Anita Joshua, Congress MP moves Bill to amend Anti-Defection Law, available at http://www. thehindu.com/news/states/article103984.ece

^[15] Report of the Committee on Electoral Reforms, 1990

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1. The Right to Education
2. Doctrine of Fruits of Poisonous Tree