Anti Defection Law

News:

Vice President M Venkaiah Naidu has advocated a need for an amendment to the Anti-Defection Law, setting a specific timeframe for disposing of defection cases.

What is Anti-Defection Law?

  • The Tenth Schedule — popularly known as the Anti-Defection Act — was included in the Constitution in 1985 via the 52nd Amendment Act, 1985.
  • The law sets the provisions for disqualification of elected members on the grounds of defection to another political party.
  • Anti- defection law is not only practiced in India but it is prevalent in various other countries like Bangladesh, Kenya, South Africa, etc.

Background:

  • Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.
  • The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.

Objectives:

  • The main intent of the law was to combat “the evil of political defections”.
  • The anti-defection provisions provide stability to the government by preventing shifts of party allegiance.
  • These provisions also ensure that candidates elected with party symbols and on the basis of party manifestos remain loyal to party policies.

Major Provisions:

  1. Disqualification:

a) If a member of a house belonging to a political party:

  • Voluntarily gives up the membership of his political party, or
  • Votes, or does not vote in the legislature, contrary to the directions of his political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.

b) If an independent candidate joins a political party after the election.

c) If a nominated member joins a party six months after he becomes a member of the legislature.

91st Amendment 2003 – This amendment makes it mandatory for all those switching political sides whether singly or in groups to resign their legislative membership.
  1. Power to Disqualify:

a) The Chairman or the Speaker of the House takes the decision to disqualify a member.

b) If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.

Exception:

  1. Merger
  • A person shall not be disqualified if his original political party merges with another, andhe and other members of the old political party become members of the new political party, or
  • He and other members do not accept the merger and opt to function as a separate group. This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.
  1. Independent members would be disqualified if they join a political party.
  2. Nominated members who are not members of a party can choose to join a party within six months; after that period, they are treated as a party member or independent member.

Advantages and Disadvantages of Anti Defection Law

AdvantagesDisadvantages
1. Provides stability to the government by preventing shifts of by preventing shifts of party allegiance.1. By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people.
2. Ensures that candidates elected with party support and on basis of party manifestoes remain loyal to the party policies. Also promotes party discipline.2. Interferes with the member’s freedom of speech expression by curbing dissent against party policies.

Issues:

Structural Issues:

  • Distinction made between Nominated and Elected candidates is illogical and irrational.
  • The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea.
  • Speaker lacks expertise in deciding anti-defection matters which are quasi-judicial in nature and demand wide consultations along with expert opinions.
In the UK,parties at times announces something called a ” free vote”. What it means is that for a particular legislative agenda MPs are free to vote as they wish and are not controlled by whips issued by parties.

 Moral/Consequential Issues:

  • MP’s/MLA’s freedom of speech and expression is curbed because even though they can voice the concerns of their voters, they cannot vote according to their conscience in opposition to the official party position.
  • The Anti-Defection Law undermines MP’s capacity to be an effective legislator – As a legislator, it is an MP’s duty to discuss and deliberate on issues of national importance; and participate in law making by debating bills.
  • The Law does not provide sufficient incentive for an MP or MLA to examine an issue in depth and think through it to participate in the debate.
  • With the issuance of a whip, a member of the legislature is in effect reduced to a mere voting number in House.
  • With such a law in place, there is no need or incentive for ministers piloting a proposal to individually reach out to legislators and persuade them about the merits of a legislation or a policy move. A free exchange of ideas, debate and dissent within political parties is curtailed.
  • Lawbreaks the link between the elected legislator and his electors – The Anti-Defection Law in India weakens the systems of checks and balances inherent in a parliamentary democracy where the executive is accountable to the legislature and the legislature keeps oversight on the executive’s actions.
  • It has not been able to prevent defections- In 2016, the Arunachal Pradesh chief minister PemaKhandu, along with 43 MLAs defected from the Congress Party to join People’s Party of Arunachal.
  • In most developed democracies, law making is a much more inclusive process. Ministers have to work hard to negotiate and convince legislators to support their proposal. For example, the United Kingdom does not have an Anti-Defection Law.
  • The impact of the anti-defection provisions can be seen in the fact that in the 14th LokSabha there were only 20 instances when recorded voting took place and almost all legislative business was conducted by voice vote.

Important Supreme Court Judgements:

1. KihotaHollohon vs. Zachilhu and Others, 1993

    • The SC held that the provisions of Tenth Schedule do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution
    • The Court also stated that the order passed by the Speaker of the Legislature would be subject to judicial review

2. Ravi S Naik v. Union of India, 1994

    • The SC interpreted the phrase ‘voluntarily gives up his membership.’ It stated the words ‘voluntarily gives up his membership’ are not synonymous with ‘resignation’ and have a wider connotation.
    • A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party.

3. G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996)

    • 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.

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

  • 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.

Way Forward:

Body/ Committee /OpinionMain reforms suggested/ recommended
Dinesh Goswami Committee on electoral reforms
(1990)
• Disqualification should be limited to cases where;
(a) A member voluntarily gives up the membership of his political party.
(b) A member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.
• The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
Halim Committee on anti-defection law (1998) • The words ‘voluntarily giving up membership of a political party’ be comprehensively defined.
• Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members.
• The term political party should be defined clearly.
Law Commission
(170th Report, 1999)
• Provisions which exempt splits and mergers from disqualification to be deleted.
• Pre-poll electoral fronts should be treated as political parties under anti-defection law.
• Political parties should limit issuance of whips to instances only when the government is in danger.
Election Commission • Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
Constitution Review Commission (2002) • Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term.
• The vote cast by a defector to topple a government should be treated as invalid.
  • Politicians found loopholes in this law and used it for their own benefit. It is high time that a watchdog should be provided to our Parliament and there is a need for our constitutional pundits to revisit the issue to combat the menace of corruption and defection which has eroded the values of democracy.
  • There is need to build a political consensus so that the room for political and policy expression in parliament for an individual member is expanded.
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