This article is written by Abhay, a student from Kirit P. Mehta School of Law, NMIMS, and edited by Gitika Jain. This is an exhaustive article which deals with various aspects involved in Anti Defection Laws. 

Introduction

Gaya Lal, a politician (M.L.A.) in Haryana had changed his party thrice within the same day in 1967. The Tenth Schedule, commonly known as the Anti-Defection Act was introduced by the Rajiv Gandhi government to the Constitution in 1985 which sets the disqualification rules for elected members on the basis of defection to another political party. The legislation was introduced via the 52nd Amendment Act, 1985, shortly after the Rajiv government came to power with a thumping mandate in the aftermath of Prime Minister Indira Gandhi’s assassination. In the Lower house, Congress had secured 401 seats in the year 1951-52.

A ‘defection’ by one-third of a political party’s elected members was deemed as a ‘merger’ under the 1985 Act. These defections weren’t actionable. The Dinesh Goswami Committee on Electoral Reforms, the Law Commission in its report on “Reform of Electoral Laws” and the National Commission for Reviewing the Working of the Constitution (NCRWC) all proposed that the Tenth Schedule clause on the exemption from dismissal in the event of a split be removed. This was eventually amended by the 91st Constitutional Amendment Act, 2003. To make it valid in the eyes of law, at least two-third of a party’s members must be in favour of a “merger”.       

Anti-defection laws

It doesn’t prevent legislators from shifting loyalties when they wish, but stifles their voice on policy issues. Reasons for disqualification under Articles 102(2) and 191(2) of the Anti-defection Law are if an elected official willingly gives up his political party membership. If he votes or refrains from voting in any House in contravention of any direction given by his or her political party or anyone allowed to do so, without prior permission.

A representative is considered to be disqualified if he either willingly relinquishes his party membership or disobeys the party leader’s instructions on a vote. This means that a lawmaker who defies the party whip (abstaining or voting against) on some topic may lose his house membership. The legislation refers to the bodies of both, the Parliament and the State. Legislation forbids MPs/ MLAs from switching parties after elections and requires members to obey whips provided by their party. 

This law also applies to a nominated candidate if he/she leaves a political party after six months of nomination, and an independent candidate if he/she enters a party after the election. In certain circumstances, lawmakers can change their party without the possibility of disqualification. The legislation requires a party to merge with or into another party if at least two-third of its members support the merger. Neither the leaders who wish to join nor those who remain with the original group will face disqualification in such a situation. 

Different expert committees have advised that the call to disqualify a candidate should be taken on the advice of the Election Commission by the President (in the case of MPs) or the Governor (in the case of MLAs) rather than by the Chair of the house.

It will be equivalent to the disqualification procedure as seen in the case of a person holding an office of profit or benefit (i.e. the person holds a federal or state government office that carries a remuneration, and was not exempted from a list drawn up by the legislature).

Provisions relating to independent and nominated member  

The Anti-defection legislation was criticized on the grounds that it produces an unfair disparity between the elected independent member and a nominated House member. An independent member mentioned in the Tenth Schedule may be excluded if he joins any other political party following his election. But if a nominated member joins another political party within six months, he shall not be excluded.

A nominated member is permitted to join any party within six months of his appointment. The right of an independent member to join any party is constrained even though he owes his election to no particular party. In D. Sudhakar & Ors v. Jeevanraju & Ors, the Honorable Apex Court held that even independent candidates could extend support to a government established by a political party and become a minister in that government.

Resignation- an escape clause for circumventing anti-defection laws

Anti-Defection Law of 1985, specified three reasons for disqualifying MLAs and that we’re giving up membership of the party; going against the party whip, and abstaining from voting. In this law, legislators found loopholes and used them for their own gain. Resignation as MLA or MP was not a condition for disqualification. The notion of this latest solution, with resignations, is despicable and thus a new scenario needs to be sorted out.

The political turmoil in Karnataka, Manipur and Arunachal Pradesh showed that any conceivable loophole can easily be exploited and that can be both in the conduct of the speaker and the legislature. In Karnataka, the Speaker had declined to recognize the resignations and declared the resigning members disqualified. 

This became possible because the law empowers the House’s presiding officer (i.e. the Speaker) to rule on defection grievances within no deadline. Initially, the legislation shielded the Speaker’s decision from judicial review. But in Kihoto Hollohan v. Zachillhu and Others (1992) this restriction was struck down. Although the Supreme Court(SC) affirmed the discretionary power of the Speaker. It underlined that the Speaker had functioned as a tribunal under the anti-defection statute, thereby subjecting her / his decisions to judicial review. This judgment allowed the judiciary to become the guardian of the anti-defection law, rather than the speaker, who had become increasingly a political character contradictory to the intended impartial democratic position.

The same can be seen in Shrimanth Balasaheb Patel & Ors v. Speaker Karnataka Legislative Assembly & Ors (2019), wherein, the SC court upheld the order of the then Karnataka Speaker to disqualify the 17 rebel MLAs. It repealed the ban on MLAs from contesting elections until 2023, however, eliminating the only lasting solution to the issue. The major issue, as observed in Karnataka, seems to be that the defectors view disqualification as a mere detour, before re-contesting them back to the government.

The Speaker, in Kunwar Pranav Singh Champion & Ors v. the Speaker, Legislative Assembly & Ors, had expelled the petitioners on three significant issues, the petitioners travelled with the Members of the Opposition Party on the same bus; they travelled with the members of the opposition on the same flight; and submitted a joint memorandum to the Governor. The speaker had issued notice inside the house to the petitioners concerning sloganeering.

Power of speakers or chairman as a deciding authority 

The Speaker is entrusted with adjudicatory authority under the Tenth Schedule to settle conflicts occurring under the schedule. Even the Speaker has the authority to determine whether or not a representative has defected from a party. But the issue of the Speaker’s status as a tribunal or more specifically as to whether the Speaker satisfies the requisite standards of a neutral tribunal, the initial concerns and dissatisfaction remain even more in consideration of the recent decisions of certain speakers.

With due regard for the Speaker’s role in the country and after going through some of the latest events, numerous concerns have been addressed regarding the Speaker’s impartiality and fairness in his ability as a Tribunal under the Tenth Schedule of the Indian Constitution.The Speaker’s opinion on disqualification on the grounds of defection had been questioned for being unfair and selective in different cases.

The Speaker’s decision was questioned in Mayawati v. Markandeya Chand and Ors as being unfair since the Speaker unduly postponed the proceeding under the petition for disqualification. In D. Sudhakar v. DN Jeevanraju and Ors, the Speaker’s impugned order was held to be invalidated by mala fides because he hastily made the decision on the disqualification petition and it demonstrated a partisan outlook in his approach.

In the case of Balchandra L Jarkiholi & Ors v. B.S.Yeddyurappa & Ors, the Speaker behaved in haste and in breach of the standards of natural justice while disposing of the petition for disqualification. There was no imaginable justification for the Karnataka Legislative Assembly Speaker to have taken up the subject in such a rush.

Status of expelled members

The anti-defection law is unclear on the role and standing of leaders excluded from the political parties. Nevertheless, such an individual remains a member of the House and sits separately from the seat bloc assigned to his original political party. Evicting a member from a political party and disqualifying from membership of the house in question are two different things. 

A member of a political party may be disqualified for anti-party actions or for an act of rebellion committed by the member, which is totally against the party’s code of conduct. Under the Tenth Schedule, disqualification on the grounds of defection occurs only in two cases i.e. willingly giving up membership and voting or abstaining from voting against the course of the party.

It was held in the case of  G. Viswanathan Vs. Speaker T.N. Legislative Assembly that an expelled member is bound by the party’s whip even after expulsion. And failure to adhere to such a whip will result in the expelled member being excluded from the house.  

Failure of anti-defection laws

Failures of anti-defection laws impact the freedom of MPs/ MLAs. Drafters of the constitution did not want to grant political parties power over representatives. Interestingly, the Constitution addresses political parties only in the 10th schedule, which was added in 1985. Other participants could have expressed their views and opinions. More debate and better discussions in Parliament would have led to better solutions for failures of anti-defection laws.

Members serve their constituents in a diverse country such as India too. Therefore, every member must have a voice to give voice to all the regions and parts of the population. By prohibiting parliamentarians from changing parties, it reduces the government’s responsibility to Parliament and to the public. This interferes with the freedom of speech and expression of the individual by curbing dissent against the policies of the parties. Though in the case of Kihoto Hollohan vs. Zachilhu and others,  it was held that the legislation does not violate any rights or freedoms, or the basic framework of parliamentary democracy.  

Though many are of an opinion that when a government is elected, it must be entitled to function for the full term and a chief minister should not be required to prove his majority through a floor test each and every time, anyone goes to the governor or the Supreme Court arguing that the government has lost its majority. The principle of the parliamentary system is not only to have a majority rather it is to have the right to govern. 

Even if it’s a coalition government, it should not be made weak by oppressive morality. The burden of showing that the party has lost its support will rest with the representatives who can do so by bringing a motion of no confidence in the assembly against it.     

Possible reforms

The Tenth Schedule consists of so many inconsistencies that there is a need for a legislation that ensures there would be no defections or resignations and when there is a resignation, a fresh election is immediately required. Confidence motions should not be there, as it suggests and ensures that no minority government would ever survive. 

Only motions of no confidence should be used to oppose minority governments. No crossing of the floor and no resignation are the only ways to have a stable state government. Chief ministers can not be left unprotected by the statute. Generally, they are appointed for a tenure of five years. Any time a member resigns or crosses the board, the motion of confidence is made with the support of the governor. 

These are some of the areas that have to be sorted out. Only by increasing the dismissal period from re-contesting and election to the chairmanships/ministries to at least six years this problem of resignation can be solved. To ensure that the defectors are not permitted to join the election process for at least one election cycle, which is five years, the minimum time limit of six years is required.

The voter should have the privilege to file a petition for disqualification on the basis of defection under the Tenth Schedule for a Member of Parliament or of a legislative assembly. Under the Tenth Schedule, a pre-poll coalition of political parties should be regarded as a single entity. The anti-defection law will apply to the parties that form alliances before the election. The justification for nominating an elector on the basis of the party’s platform could be expanded to pre-poll alliances.

Conclusion

The anti-defection law sought to end certain political deficiencies that might result from office incentives or other related considerations from other parties. In 1985, the Tenth Schedule was introduced in the Constitution. This sets out the procedure by which legislators may be excluded on grounds of defection by a legislature’s presiding officer based on a complaint by some other member of the house.

The anti-defection legislation helps to have a stable government by making sure that politicians do not turn sides. This guarantees candidates elected with party support and remain committed to party politics on the basis of party manifestos. This also encourages discipline within the party. Nevertheless, this rule also prohibits a legislator from voting in accordance with his electorate’s conscience, opinion and interests. 

Such a condition hinders the legislature’s oversight role over the government by ensuring that members’ vote is centered on the party’s leadership decisions and not on whether their constituents would want them to vote in support. Political parties usually give MPs a guide on how to vote on certain issues, regardless of the complexity of the matter. Some analysts have indicated that the legislation should only extend to certain votes that decide the government’s stability, i.e., the passage of the annual budget or motions for no confidence etc.

References 

• https://www.prsindia.org/media/articles-by-prs-team/anti-defection-law-has-failed-it-time-scrap-it-%E2%80%89opinion
• https://thewire.in/law/resignation-anti-defection-floor-test
• https://www.theleaflet.in/karnataka-crisis-focuses-on-loopholes-in-anti-defection-law/
• https://www.reddit.com/r/india/comments/fnk0ve/resignation_is_a_new_loophole_for_bypassing/

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