Why in news?
Issue came in news because of disqualification of 9 rebel Uttarakhand assembly members under the anti-defection law by the Speaker.
What is Anti-Defection law?
The Anti-Defection Law was enacted through the 52nd Amendment in 1985 and enshrined in the Tenth Schedule. This Act lays down the provisions for disqualification of elected members on the grounds of defection to a different political party.
The law was enacted at the initiative of the Rajiv Gandhi-led government that came to power with a thumping majority in the wake of the assassination of the then Prime Minister Indira Gandhi.
Why is Anti Defection Law needed?
The Rajiv Gandhi government was spurred to introduce this law as several defections were witnessed in the eighties. The Amendment was supposed to bring stability to the structure of political parties and strengthen parliamentary democracy by prohibiting floor-crossing.
The earlier failures to deal with this issue had caused rampant horse-trading and corruption. The Schedule X was, therefore, seen as a tool to cure this malaise. This constitutional measure meant that after a member was elected under the symbol of a political party to Parliament, the member couldn’t later opt to leave that party or switch to a different party.
Provision for disqualification under the Anti-Defection Law
Under the Articles 102 (2) and 191 (2), it is mentioned that an elected member will attract disqualification-
- If he voluntarily offers up his membership of a political party
- If he votes or withdraws from voting in such House contrary to any direction issued by his party or anyone authorised to try and do so, without getting prior permission.
The provisions are created with relevance to mergers of political parties. There is no disqualification to be incurred when a legislature party decides to merge with another party and such decision is supported by not less than two-thirds of its members.
Independent members would be disqualified if they joined a political party. Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.
The Chairman or the Speaker of a House has been empowered to frame rules for giving effect to the provisions of the Tenth Schedule. The rules are set before the House and shall be subject to modifications/disapproval by the House.
Loopholes in Anti-Defection Law and Amendment made to it
On the electoral reforms, the Dinesh Goswami Committee in its report on “Reform of Electoral Laws” had suggested the deletion of the Tenth Schedule provision regarding exemption from disqualification in case of a split in a political party.
Finally, the 91st Constitutional modification Act, 2003, modified this. Thus at least two-thirds of the members of a party have to be in favour of a merger for it to possess validity in the eyes of the law.
A split in a political party won’t be considered a defection if a complete political party merges with another political party; if a new political party is created by the elected members of one party; if he or she or alternative members of the party haven’t accepted the merger between the two parties and opted to perform as a separate group from the time of such a merger.
On defection of elected members, the concerned party can send a petition on the alleged defection to the Chairman or the Speaker of a House recommending their disqualification. It may also expel the members. However this doesn’t mean that the members thus expelled lose their seats in the House.
Challenges and Interpretations
The anti-defection law raises a number of questions, several of which have been addressed by the courts and the presiding officers.
Does the law impinge on the right of free speech of the legislators?
This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs. Zachilhu and others). The court said that “the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct…above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.
What constitutes “voluntarily” resigning from a party?
Various judgements and orders indicate that a member who publicly opposes the party or states his support for another party would be deemed to have resigned from his party.
Can the decision of the presiding officer be challenged in the courts?
The law states that the decision is final and not subject to judicial review. The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.
Issues for consideration
Should the law be valid for all votes or only for those that determine the stability of the government (such as the confidence and no-confidence motions)?
The main intent of the law was to deter “the evil of political defections” by legislators motivated by lure of office or other similar considerations. However, loss of membership is hardly a penalty in cases ahead of the scheduled time of general elections—as seen last year. It also loses significance if the House is likely to be dissolved. On the other hand, the voting behaviour may be affected even on issues not related to the stability of the government. A member may be unable to express his actual belief or the interests of his constituents. Therefore, a case may be made for restricting the law to confidence and no-confidence motions. The Dinesh Goswami Committee on electoral reforms (1990) recommended this change, while the Law Commission (170th report, 1999) suggested that political parties issue whips only when the government was in danger.
Should the law apply only to pre-poll alliances?
The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances. The Law Commission proposed this change with the condition that partners of such alliances inform the Election Commission before the elections.
Should the judgement be made by the presiding officers?
Several MPs had raised this issue at the time of passage of the law. The Supreme Court upheld the law in the Kihoto Hollohon judgment. The Goswami Committee, the Election Commission and the Venkatachaliah Commission to Review the Constitution (2002) have recommended that the decision should be made by the president or the governor on the advice of the Election Commission. This would be similar to the process for disqualification on grounds of office of profit.
Should there be any additional penalties on defectors?
The Venkatachaliah Commission recommended that defectors should be barred from holding any ministerial or remunerative political office for the remaining term of the House. It also said that the vote of any defector should not be counted in a confidence or no-confidence motion.
Recommendations of various bodies on reforming the Anti-defection law.
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)
1. The words ‘voluntarily giving up membership of a political party’ be comprehensively defined.
2. Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members.
3. The term political party should be defined clearly.
Law Commission (170th Report, 1999)
1. Provisions which exempt splits and mergers from disqualification to be deleted.
2. Pre-poll electoral fronts should be treated as political parties under anti-defection law.
3. Political parties should limit issuance of whips to instances only when the government is in danger.
Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
Constitution Review Commission (2002)
1. Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term.
2. The vote cast by a defector to topple a government should be treated as invalid.
Anti-defection law when it was passed, it aimed at bringing down the political defection but due to ever increasing political dishonesty and corruption this law never evolved properly and now a question arose that ‘whether achieving the goals of this law a reality or a myth?’ 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.
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