ANTI-DEFECTION LAW

admin | February 19, 2022 | Law | No Comments

This article was written by A Thiruthi, a student of UPES, Dehradun

Defection Laws have been a major concern in recent years as a result of the leaders’ full disregard for the country’s defection guidelines. Defection has been a contentious topic in India since the country’s independence. A Defector is described as a person “who is an elected member of the legislature and has been given the reserve symbol of any political party,” according to the 1967 report of the committee on defection. Defection is the most heinous type of political corruption. This type of corruption imposes a monetary penalty on legislators who switch parties. This price tag is applied and negotiated with the goal of gaining power, destabilizing governments, and, most importantly, undermining the electoral mandate. A group led by the then-Home Minister, Y.B Chavan, emphasized the necessity for an anti-defection statute as early as 1969. Anti-defection laws lay out the conditions under which a Member of the Legislative Assembly or a Member of Parliament may lose his or her powers as an Elected Representative of a political party and, as a result, be disqualified from the party. The Constitution’s Tenth Schedule has provisions for these Grounds. The Indian judiciary has interfered numerous times through various judicial pronouncements, attempting to establish certain principles through precedents in order to foster better politics and healthy competition among the parties.

The anti-defection act aims to keep the government stable by preventing legislators from switching sides. However, this act prevents a legislator from voting in accordance with his or her conscience, judgment, or the interests of his or her constituents. This condition obstructs the legislature’s oversight responsibility over the government by assuring that members vote based on party leadership decisions rather than what their people want them to vote for. MLAs are prohibited from defecting from their political party under the anti-defection law. They risk losing their seats in the legislature if they defy their political party. They can’t become a minister in a government for six months if they’re labeled a defector. However, the anti-defection law’s constitutional requirements have been reduced to a farce. MLAs and political parties have mastered the use and circumvention of the anti-defection law.

Rajiv Gandhi proposed the Anti-Defection Bill, which was passed overwhelmingly by both houses and went into effect on March 18, 1985, after getting the president’s assent. By the 52nd Amendment to the constitution in 1985, the Anti-Defection provision was inserted to the constitution through the Tenth Schedule. Article 102(2) and Article 191(2) through these provisions provide for the disqualification of Member Parliaments and Member Legislative Assembly. Legislators can be disqualified under these articles of the constitution if they are disqualified by the Tenth Schedule.

“Aaya Ram Gaya Ram” is a well-known phrase since 1967, when Gaya Lal, a party politician, switched parties three times in one day in 1967. The anti-defection act has advantages and disadvantages, and it is up to politicians and public to decide how they will interpret the law and contribute to the efficient functioning of democracy. On the plus side, the law attempts to maintain government stability by penalizing members who alter their party affiliation. Anti-defection legislation also tries to instill a sense of loyalty to one’s own political party in members. This is done by ensuring that members chosen in the name of the party, its support, and its platform remain loyal to the political party to which he belongs and its policies. Anti-defection rules have the problem of restricting members’ freedom of speech and expression by forbidding them from expressing any dissident opinions on party policies. However, multiple courts have determined that the Articles 105 and 194 protection of freedom of speech is not absolute. The Constitution’s provisions, including the Tenth Schedule, bind it. Another issue in the law is that it restricts the government’s responsibility to Parliament and the people by prohibiting party members from transferring parties.

The major cons of anti-defection law are:

It inhibits a congressman from voting on national matters based on his conscience, judgment, and the interests of his constituents, which is in violation of the country’s democratic values.
It obstructs the legislature’s monitoring of the executive branch by compelling members to vote on decisions made by the party leadership (Ministers) rather than his own conscience.
The law does not provide an incentive for an MP or MLA to carefully investigate an issue before engaging in a debate, because his viewpoint could lead to his disqualification if it varies from that of his party, obstructing nation-building or growth.
The law does not impose a time restriction on the presiding officer in determining whether there has been an undue delay in prosecuting a member who has disobeyed the anti-defection law. Because courts cannot interfere until the presiding officer issues an order, they are unable to challenge the presiding officer’s delay. Members of the House who have defected from their parties have remained in office as a result of the delay in making decisions in some cases. Members of the opposition have also been appointed ministers in the administration while remaining in the legislature as members of their original political party.
The 10th schedule allows for an exemption from disqualification if two-thirds of the members agree to switch parties, resulting in a mass defection across the country. PemaKhandu, the chief minister of Arunachal Pradesh, and 43 MLAs defected from the Congress Party to join the People’s Party of Arunachal in 2016. In certain states, such as Andhra Pradesh and Telangana, opposition legislators have gradually broken away in tiny groups to join the ruling party. More than two-thirds of the opposition has switched to the ruling party in some of these circumstances.

Anti-defection legislation is employed in a number of nations, including India, Bangladesh, Kenya, and South Africa. Article 70 of the Bangladesh Constitution, for example, provides that if a member resigns from his party or votes against its orders, he must lose his post. The Speaker refers the issue to the Election Commission for resolution. According to Section 40 of the Kenyan Constitution, a member who resigns from his party forfeits his position. The decision is made by the Speaker, and the member has the option of appealing to the High Court. Article 46 of the Singapore Constitution provides that if a member of a political party resigns or is expelled, he must give up his seat. Anti-defection rules are still in their infancy stage, according to an examination of Parliamentary procedures and customs in other democracies throughout the world. Anti-defection laws are in place in 23 countries. Anti-defection legislation are more visible in nations where democracy is in its early stages, indicating that legislators in those nations are less informed about democratic principles and are more focused on attaining political and monetary power. However, the political climate in developed democracies paints a picture of legislators who are equally committed to democratic values and freedom of speech. The “collective conscience” of the electorate, to which only politicians are essentially responsible, ensures the freedom to disagree with the policies of the political party to which a legislator owes allegiance.

The anti-defection law has been criticized primarily for undermining the basic principle of representative democracy. However, given the immaturity of our democracy and the indiscriminate character of political defections in India, an anti-defection law is inevitability, if not an elixir, for ensuring political stability. At the same hand, a legislator’s right to express disagreement against a political party’s policy decision is a requirement for the survival of a strong democracy. Tying a lawmaker to the whims and fancies of a political leadership that does not respect intra-party democracy is undemocratic.

A legal strategy based on vengeance undervalues the problems with our politics. Bhupesh Gupta, a well-known legislator, was a member of the first committee to investigate defections, which was established nearly half a century ago. He argued that “defections are simply the emergence of certain harmful components in our political life.” The committee was chaired by Y B Chavan, the then-Home Minister. The committee’s recommendations were well-thought-out. Political parties must adhere to a code of conduct or set of conventions that take into account the essential values and decencies that should govern the functioning of democratic institutions, regardless of legislative and constitutional restrictions against political defections, it was claimed. Politics demands political responses. Until now, we’ve approached the subject of defection from a legalistic standpoint. When anti-defection norms are threatened, political parties try to protect them; when it is more expedient, they want to eliminate them. As a result, political parties must abandon their reliance on the anti-defection statute to address issues of internal democracy, dissent, and discipline.

The challenges in the Anti-defection law are as follows:

According to Rule 6 of the schedule, the Speaker of the House or the Chairman has been given extensive and unlimited jurisdiction to handle matters involving disqualification of members for defection. The Speaker keeps his or her membership in the political party that nominated him or her for speaker. Mr. K.P. Unnikrishnan, a member of the Congress party in the Lok Sabha, stated that by making the speaker the sole repository of all rulings, you are empowering them to sow chaos. One of the most prominent criticisms of this power is that it does not necessitate legal knowledge and expertise on the part of the speaker to assess and perform such acts in such situations. Both Speakers of the Lok Sabha, Mr. Rabi Ray in 1991 and Mr. Shivraj Patil in 1993, raised doubts about their suitability to decide on problems involving defections.
Rule 7 states that it is outside the jurisdiction of all courts, including the Supreme Court under Article 136 and High Courts under Article 226 and 227 of the Constitution, to review the Speaker’s decisions in this regard. The legislature attempted to limit the judiciary’s power under the Constitution, which is unsustainable. The rule prohibiting courts from exercising jurisdiction has been challenged in court several times, with the Court in various decisions holding that the law is lawful in all respects except for the issue of judicial review, which was found to be unconstitutional. Article 368(2) of the Constitution requires that any measure impacting Articles 136, 226 and 227 of the Constitution be ratified by the States. The Supreme Court found the rule unlawful since the required number of state legislatures had not ratified it. The Court also decided that when the Speaker decides issues involving defection of party members, he or she functions as a tribunal and nothing more, and that his or her rulings are subject to the High Courts’ and Supreme Court’s review powers. The Supreme Court cautioned against exercising judicial review power before the Speaker makes any decision, citing a norm of caution.
According to Rule 2, the anti-defection law places party members in a category of loyalty to the party’s rules and policies, limiting the legislator’s ability to oppose the party’s wrongdoings, harmful policies, leaders, and laws. A political party functions as a dictator for its members, who are not permitted to express their dissatisfaction. In this way, it goes against the representational democracy premise of members being required to obey the central authority. People in a well-established representative democratic atmosphere prefer that the electorate be responsible for their actions rather than working according to the wishes and orders of party leaders. People in a well-established representative democratic atmosphere prefer that the electorate be responsible for their actions rather than working according to the wishes and orders of party leaders and policies. With the increased power provided to a party member, members are no longer permitted to vote on any subject whether or not it is part of the party agenda. The law tends to blur the line between member defiance and member defection, which results in their disqualification. Anti-defection legislation has failed to achieve the anticipated effects due to the lack of individualism among members of their parties.
According to Rule 2(1) (a) of the Tenth Schedule, a member of the House would be disqualified from the political party if he freely gave up his membership. The Schedule, on the other hand, does not define “voluntarily giving up.” The Supreme Court was requested to weigh in on the matter, and in interpreting the phrase, it was determined that it had a larger meaning that might be inferred from the members’ acts. The terms “resignation” and “voluntarily gives up his membership” were not interchangeable. It was decided that a person could leave a political party at any time without having to resign. In one case, the question of whether or not joining another political party after being kicked out of the first was voluntary participation emerged. In this case, it was decided that even if a member is expelled from a political party, for the purposes of the Tenth Schedule, he or she remains a member of the former party. If an expelled member then joins another political party, he is regarded to have willingly renounced his previous membership. In another example, the definition of the phrase “voluntarily giving up membership” was enlarged. A letter from an elected party member to the Governor suggesting that he contact the opposition party’s leader in order to form a government was found to be an act of willingly giving up membership in the party of which he is an elected member in this case.
There appears to be a legal gap in Rule 4 of the Tenth Schedule, which appears to exempt members from disqualification in merger procedures. The clause is designed to protect members of a political party in the event that the original political party merges with another, as long as at least two-thirds of the Legislative party concerned agrees to the merger. The flaw appears to be that the exception is made based on the number of defections rather than the cause of the defections. Individual members appear to be more motivated to defect when offered lucrative office or cabinet seats by the opposition party. It’s logical to anticipate that the two-thirds of the members who agreed to the merger will be given the same justification. If a single member’s defection is undesirable, it’s difficult to argue that mergers are any different simply because there are so many people involved. As a result, the provision looks to be flawed, as it has the potential to harm the country’s democracy. It would have been more useful if the clause had taken into account the true reason for the merger rather than the number of members involved.

The Speakers’ decisions on disqualifications have already been challenged in court as being unfair and partial. The Dinesh Goswami Committee (1998), the Commission to Review the Constitution (2002) and the Law Commission (2015) has all suggested that defection cases be settled by the President or Governor of the centre or state, who will act on the Election Commission’s suggestion. Several committees have expressed their opinions on the Anti-defection Law. They are as follows:

Dinesh Goswami Committee (1998) Disqualification should be limited to cases in which a member

(a) Voluntarily resigns from his political party,

(b) Abstains from voting, or votes against the party whip in a motion of confidence or no-confidence.

The President/Governor should decide on disqualification based on the Election Commission’s recommendations.

The Law Commission (170th Report, 1999) recommends eliminating provisions exempting mergers and splits from disqualification. Pre-poll electoral fronts should be recognized as political parties under anti-defection legislation. The use of whips by political parties should be limited to instances in which the government is in peril.
Decisions under the Tenth Schedule, according to the Election Commission, should be made by the President/Governor based on the Election Commission’s binding advice.
Defectors should be forbidden from holding public office or any remunerative political employment for the remainder of the term, according to the Commission to Review the Constitution (2002). A vote cast by a defector to overthrow a government should be ruled null and void.

The Tenth Schedule was included to the Indian Constitution in order to prevent political defections. Though the law has succeeded in a reasonable manner, it has not been able to realize its full potential due to some of its flaws. Through their dishonesty, corrupt politicians have been able to exploit legal flaws to fit their purposes to the greatest extent feasible. The Act contains numerous faults that undermine the premise of representative governance. The ability of a lawmaker to express his opposition is essential to the functioning of a strong democracy. Members should have the freedom to vote and make decisions because it benefits the party as a whole, making it a powerful candidate at the grassroots. Furthermore, several parts of the Representative of the People Act must be amended so that parties can choose their leaders more democratically. Furthermore, the presiding officer of the house having the power to adjudicate the subject under the tenth schedule creates worries about bias towards one’s own party, and the Dinesh Goswami committee report of 1990 should be enacted to address this. According to the report, if any MP is responsible under the tenth schedule, the President should arbitrate the matter, while in the case of MLAs; the governor should adjudicate on the advice of the electoral commission.

Over the years, the Tenth Schedule has disqualified more than 100 MLAs and two dozen MPs across India. If a legislator refuses the whip three times in other democracies, such as the United Kingdom, he can be removed from the party without losing his seat, but in India, he loses both his membership and his seat. There is no comparable penalty in Australia for rejecting the whip, although such members are barred from using certain of the party’s resources. There is no punishment in the United States because politicians cannot be removed from the party for breaking the whip. India is the only democratic country where voicing dissatisfaction with a political party results in such drastic measures, which is one of the legislative flaws that the Supreme Court should address.

SUGGESTIONS

The following legal amendments may aid in its development to the greatest extent possible:

The power of the party whip should be limited so that only those who vote against the party manifesto are disqualified, rather than those who vote against the party on a minor issue or one that is not fundamental to the party programme. This will help members create their own distinct opinions on a variety of topics in some ways.
To avoid any misunderstandings, the law should specify what “voluntarily relinquishing up Membership” implies.
The section dealing with mergers, which exempts members from disqualification if they defect in significant numbers, i.e. two-thirds, must be altered to make the reason for defection the grounds for exemption from disqualification, rather than mere numbers.
On the basis of Rules 6 and 7 of the Schedule, the legislation must be evaluated in order to resolve any differences between the legislative and the courts.
The Whip issued by a political party becomes obligatory to follow, however it would be better for individual liberty and the quality of democracy in the country if the Whip was only employed in crucial situations for the party’s survival. These decisions could include a motion of confidence or no confidence, or the passage of a budget bill. Disagreement with the party instruction must not be construed as desertion in any other circumstance.
On the recommendations of the Election Commission, the President/Governor must make the judgment regarding disqualification. This would ensure that the choice is as free of partisanship as possible, while also preserving the Speaker’s office’s integrity.
Several experts have recommended that the rule should only apply to votes that decide the government’s stability. For example, no-confidence motions or the passing of the yearly budget.
Various commissions, including the National Commission to Review the Workings of the Constitution (NCRWC), have recommended that the President (in the case of MPs) or the Governor (in the case of MLAs), rather than the Presiding Officer, make the decision to disqualify a member based on the advice of the Election Commission.
Justice Verma observed in the Hollohan ruling that the Speaker’s tenure is dependant on the House majority’s ongoing support, and hence he does not fit the conditions for such independent adjudicatory authority. Furthermore, his appointment as the case’s only arbitrator violates a fundamental aspect of the basic feature. As a result, a neutral organization to deal with defection incidents is essential.
The 170th Law Commission report emphasized the need of intra-party democracy, arguing that a political party cannot be a dictatorship on the inside while being democratic on the outside. As a result, the parties should pay attention to the perspectives of the members and undertake discussions about them. Members would be able to openly express themselves, promoting internal party democracy.
One should support “free vote”. Parties in the United Kingdom occasionally announce a “free vote,” which means that MPs are free to vote whichever they want on a certain legislative agenda and are not bound by party whips.

As a result, it is concluded that politicians uncovered legal loopholes and used them for personal gain. Our Parliament needs to create a watchdog, and our constitutional experts need to revisit this issue in order to battle the menace of corruption and desertion, which has corroded democratic ideals. Though anti-defection laws have substantially decreased political instability caused by frequent and unexpected switches of allegiance on the part of our country’s legislators, there is still a need for a more reasoned form of anti-defection laws to assist construct a truly representative democracy. The anti-desertion law was enacted with the goal of reducing political defection. The law, however, never proceeded properly due to growing political dishonesty and corruption, and the question now is whether achieving the law’s goal is a reality or a myth. Politicians took use of legal loopholes to enrich themselves. Our Parliament needs a watchdog, and our constitutional experts should revisit the issue in order to combat the threat of corruption and defection, which has eroded democratic ideals.

The anti-defection law has harmed our legislators’ ability to act as deliberative bodies that hold the administration accountable on behalf of citizens. It has turned them into forums for endorsing the government’s legislative and budgetary decisions. It hasn’t even done a good job of maintaining government stability. The Constitution’s Tenth Schedule must be repealed. Separate committees should be formed to investigate cases of defection between the parties, and if members of these parties are found guilty, serious measures should be imposed on them. Furthermore, they should be barred from running for office so that these forces do not disturb the country’s vibrant democracy.

The Tenth Schedule to the Constitution was enacted in an attempt to enact comprehensive measures to combat the threat of desertion. While the law has done a reasonable job in this area, there are still some ambiguities. The country’s courts have done a good job of explaining the position by applying the law to specific facts and circumstances. Despite this, there are very few generic ideas that may be applied universally. As a result, there appears to be a lot of room for judicial interpretation, which could help to clarify the law and bring in a wider range of instances under this legislation’s protection. The easiest method to address the flaws in the anti-defections statute, it appears, is to follow the Supreme Court’s recommendation and create an independent body to handle matters connected to the 10^th Schedule. Furthermore, such members should be prevented from running for office in the future in order to prevent them from using such loopholes and making a mockery of the entire system. The law’s provisions must be made robust in order to prevent members from evading them in order to build a better democracy.