Anti-Defection Law: Time to revisit or repeal?

28 Jul 2020 Read 227 Views

The issue is relevant due to the current Rajasthan crisis where Sachin Pilot (ex-deputy CM) has resigned along with the other 19 MLAs. Sachin Pilot and those MLAs were served with a notice for violation of anti-defection law, and thereafter it is now challenged in the HC. To understand the crisis, it is necessary to learn what anti-defection is, what leads to the violation, and other relevant issues.

What is this Schedule-X?

The law has been provided under Schedule X of the Constitution brought in force by the 52nd amendment in 1985 by then Rajiv Gandhi government. The main intent was to curb the evil of political defections meaning to deter the practice of switching parties by the elected representatives.

The idea was conceived after the upsurge of political events by Haryana MLA Gaya Lal in 1967. He switched the party thrice in the same day and later which Aya Ram Gaya Ram phrase became popular.

The 10th Schedule lays down the procedure to disqualify a legislator on the grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.

Grounds of Disqualification

1. If a member of the political party voluntarily gives up the membership or doesn't vote in the legislature contrary to the 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.

2. If an independent member joins a political party after the election.

3. If a nominated member doesn't join the party within six months from the elections.

In all the above scenarios, the members shall be disqualified.

Exceptions

A person shall not be disqualified:

1. If his/her political party merges with another and becomes the part of a new political party.

2. If he/she doesn't accept the merger and decides to formulate a separate group. This exception shall be applicable only when two-third members of the House have agreed for a merger.

In 2003, the 91st amendment was made to the provision omitting an exception provision i.e., disqualification on ground of defection not to apply in case of a split.

Development of Law with changing times 

  •  Whether the law is violative of Art 19(1)(a) that is Freedom of speech and expression? In Kihota Hollohon vs. Zachilhu and Others, the court established that the law doesn't subvert the leaders' political and democratic rights. It is not in infringement to the rights safeguarded under Art 105 and Art 194 of the Constitution with respect to members of parliament and state legislatures. In the same case, another issue was dealt with.
  • Whether the power is given to the speaker under paragraph 6 of the Tenth Schedule about granting finality to the decision of Speaker/ Chairman is valid?
  • The finality of the decision of the speaker/ chairman was upheld. Though their decisions were not prone to judicial review, which is part of the basic structure of the constitution, it remains safeguarded with the High Court and Supreme Court. However, the power for judicial review cannot be practiced anytime before the decision of the speaker.
  • Whether the court can review the power of the speaker under the Tenth Schedule?
  • In Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors, the court said that so far, the duty of the speaker is concerned he/she will fail in his constitutional duty if they lack acting on complaints prudently or admitting the claims of splits and mergers even without making a finding. It shall then be violative of the Tenth Schedule and hence liable to scrutinize under judicial review.

Advantages of the Law

  • Provides stability to the political parties and creates an atmosphere of party discipline.
  • Safeguards the concept of democracy and faith of people in the government.
  • Establishes loyalty as the primary manifesto of the parties.

Criticism 

  • Doesn't differentiate between the right to dissent and defection. Somewhere curbs the rights of legislators safeguarded under Art 19(1)(a).
  • Putting the speaker in a decision-making position who is a presiding officer and member of the ruling party fails him to work impartially and objectively as required by law. Secondly, he lacks the legal knowledge and professional capacity to adjudicate.
  • The difference between individual and group defection is irrational. Former is banned and later is legalized, meaning retail is banned, and wholesale is legalized. It doesn't make quite a lucid sense.

Conclusion along with Way-Forward

Since the development of law, there have been various recommendations from several committees, amongst which most relevant in the present context is by Constitution Review Commission (2002) that said defectors should be barred from holding any public office or remunerative post for the remaining term of office. With that also the vote cast by the defector to toggle, the government should be treated as invalid.

The 31-page judgment of 3 judge bench headed by Justice Nariman is utterly good in law. It provided that an independent tribunal should be set up to determine the fate of legislators who decided to switch sides for money and power. They suggested a permanent tribunal headed by a retired Supreme Court Judge or a former High Court Chief Justice.

Until the suggested law comes into existence, the court gave the direction to the speaker to address the cases in a reasonable period that is mostly under the cap of 3 months. Therefore, the court has now opened its door for intervention before the speaker pronounces the decision or tries to delay the act. The recent changes are little overlapping with the concept of separation of power, but as our forefathers stated, the constitution is dynamic and will change with changing times.

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