Anti defection Law in India

9 Jul 2022  Read 11608 Views

Defection by legislatures occurs in various democracies, which ultimately undermines the stability of the cabinet. So, to strengthen democracy by bringing stability to the administration and ensuring that a defecting parliamentarian does not jeopardise it, an Anti-defection law has been introduced. 

But why we are discussing this topic here because it's been trending over news channels for some time now, especially after Maharashtra's political crisis. Since 2019, this politically active State has been in the news. The most recent development is Ajith Pawar joining the Shinde Cabinet with 8 others.

This article will trace what anti-defection law is, its provisions, exceptions, cases, etc.

What is Anti Defection Law?

How was the slogan "Aaya Ram, Gaya Ram" coined? The slogan was made in 1967, when Gaya Lal, an MLA, first joined the Indian National Congress and changed his political affiliation thrice in a single day. Even after this incident, Gaya Lal was infamously known for frequent floor-crossing and thus became the inspiration for the term Aaya Ram Gaya Ram. The said expression was then used commonly in Indian politics to refer to political horse-trading or, in simple language, elected members shifting parties. 

One or two elected members didn't practise such practice of defection; the need to address this situation paved the way for the Anti Defection Law in India.

Defection is "desertion by one member of the party of his loyalty towards his political party", or basically, it means "When an elected representative joins another party without resigning his present party for benefits".

Anti-defection law prevents elected members from hopping from one party to another and provides a penalty for the same.

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Let's take an Example: Suppose there is a State Bihar with 100 Legislative Assembly seats or constituencies, and the election is fought between two Parties- Part X & Y

Party X Party Y

Won 55 seats/ 100 seats

Party X can now form a govt. 

Out of 55 MLAs, 15 were chosen as Ministers and 25 supported this, while the rest 15 opposed or were dissatisfied as they wanted to become ministers.

15 MLAs from Part X defects to Party Y

To curb this, anti-defection law was introduced.

Won 45 seats/ 100 seats

Party Y lost to X

Party Y took advantage of the 15 MLAs from Party X, who were dissatisfied, to lure them into their party by promises that they would be made Ministers or Heads of a statutory organization etc.

After defection Party Y now had 60 MLAs & can form a govt.

To curb this, anti-defection law was introduced.

 

Objective of Anti-Defection Law?

As per the Statement of Objects and Reasons of the Bill, which introduced the anti-defection law, the object of this law was to curb the evil of political defections motivated by the lure of office or other similar considerations that endanger the foundations of our democracy.

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Schedule 10: Provisions of Anti-Defection Law

The tenth Schedule of the Constitution has laid down the provisions which deal with situations of defection in Parliament or state legislatures by:

  •  members of a political party,

  •  independent members, and 

  •  nominated members.

Who can be disqualified?

Paragraph 2(1) of the Tenth Schedule provides that 

  1. A member of Parliament or State Legislature belonging to any political party shall be disqualified for continuing as such member if he:

  •  Voluntarily gives up membership of his political party, or

  •  He votes contrary to a direction issued by his political party or does not vote in the House when such a direction is issued. However, a member shall not be.

  • disqualified if he has taken prior permission of his party or is condoned by the party within 15 days from such voting or abstention.  

  1. If an independent candidate joins a party after the election. 

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

Exception 

Paragraph four and five of Schedule 10  provides that rule of disqualification would not be applied to

  1. Merger - A person shall not be disqualified if his original political party merges with another (applicable only if more than two-thirds of the members of the party have agreed to the merger), and: 

  2. He and other members of the old political party become members of the new political party, or 

  3. He and the other members do not accept the merger and opt to function as a separate group. 

Landmark Cases on Anti-Defection Law

  1. Rajendra Singh Rana v. Swami Prasad Maurya and Others  is a case that expanded the meaning of the words voluntarily giving up the membership under anti-defection.' It was held for the situation that a letter by a chosen party part to the Governor mentioning him to call upon the pioneer of the contrary party to frame a Legislature would, without anyone else, sums to a demonstration of deliberately surrendering enrollment of the party of which he is a chosen part.
  2. In Keshavananda Bharati and Others v. the State of Kerala and Another, Judicial review was a basic feature of the Constitution. The Constitution cannot be amended to violate its basic structure in which the basic features of the constitutional were established. The parliament cannot alter the basic structure doctrine; thus, they must be kept unimpaired. Out of these features, the feature of Judicial Review was being altered under the 10th schedule, and much-needed clarity was needed. A liberal construction had to be adopted by the courts so that it would give review jurisdiction to the Supreme Court and High Courts in cases of disputes about the review of the speaker's decision. The power of review was imperative to lift the embargo imposed by the Tenth schedule, which removed the review jurisdiction of the Courts. The power of review is expedient, and without it, the preciseness of the disqualification made by the speaker's decision would have never been called into question on account of the inability to do so by the courts. 
  3. Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque, BSP (2008), the court held that if the party member publicly opposes his original party and supports the other party, then this act deems to be a resignation from the party.
  4. In Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors.:
    The question was raised regarding the jurisdiction of the Speaker or Presiding Officers. The court held that nothing in paragraphs 1, 2, and 6 of the Tenth Schedule fetters the Speaker's jurisdiction to decide this question.
  5. Kihoto Hollohon v Zachillu (“Kihoto Hollohon”) case of 1992. The Supreme Court held that Para 7th of the Tenth schedule made a total exclusion of remedies available under Articles 136, 226, and 227 of the Constitution. But this was rectified by attracting Article 368(2). It was held that the decision of the Chairman and the Speaker regarding the disqualification of the members was to be considered valid but subject to judicial reviews of the court. Thus, this case implicitly provided that the decisions of the Speaker of the house were legal and binding but were questionable before the courts.
  6.  Ravi S. Naik v. UOI (1994): The Supreme Court widely explained: “resignation by voluntarily giving the membership.” The court observed that a person might voluntarily give up his membership of a political party even if he has not tendered resignation from the membership of that party. Even in the absence of a formal resignation from membership, inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs”.

91st Amendment

The 91st Amendment was brought in 2003 and omitted paragraph 3 of the Tenth Schedule, which dealt with disqualification on the ground of defection not to apply in case of split and introduced Articles 75(1B), 164(1B) and 361B in the Constitution. These provisions bar any person who is disqualified under the Tenth Schedule from being appointed as a Minister or from holding any remunerative political post from the date of disqualification till the date on which the term of his office would expire or if he is re-elected to the legislature, whichever is earlier. 

Lacuna in Current law

  • Role of Speaker as sole arbitrator - Speaker solely has the power to adjudicate matters related to disqualification; furthermore, his decision will be final. He is in a position where he can act arbitrarily and make favourable decisions. 

  • Ambiguity in the phrase 'voluntarily given up.' 

  •  Paragraph 4- Paragraph 4 is related to the merger, whereby if 2/3rd members of party defect, members will not be disqualified. In recent times, said provision has been rampantly (mis)used as an escape clause.

  • Law does not provide a time frame for the Speaker to decide the disqualification case. 

Conclusion 

With the recent political turmoil in Maharashtra and the events in the past 10 years, we could see a common trend in the Indian Political scenario, be it in Karnataka, Madhya Pradesh, or Goa, that despite members of legislative assemblies acting against the anti-defection law, they escaped from the charges of defection, which makes me think that whether this law is serving the purpose, it sought to achieve?

Tell us, do you think this law is serving its purpose? Comment below 👇🏻

About the Author: Priya Barlota | 15 Post(s)

Priya Barlota is a law graduate from Amity University. She is an avid reader, and has a keen interest in Constitutional Law, IPR and Criminal Law. Follows Geo- Politics religiously.

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