Anti-Defection Law: Fallacy in the Intent or Practice? Source: Anti-Defection Law

Author name: Tarun Tyagi
Year: 3rd Year BBA LL. B
Institutional Affiliation: Student at Delhi Metropolitan Education.

Abstract

Recent political turmoil in Maharashtra divulges an ingrained intricacy of the Indian political and legal system, which from time to time has proved the system meaningless, defections. From a tumultuous defection of Gaya Lal in 1967 to recent developments, it has continued to linger in our political system in sheer defiance of Anti-defection Laws. The protection of the Tenth Schedule seems to have failed the purpose as the practice of legislators changing parties during their terms remains unabated. The essential scheme of a stable and insulated government from defection has become a long haul in a democratic country like India, where a no-confidence motion makes or breaks the government. The insouciance of defectors to the promises they made while the election defies the principle of democracy and constitutionalism. This callousness is because of the defeasible Anti-defection laws, which need further scrutiny concerning the current state of affairs.

Keywords- Tenth Schedule, Anti-defection Law, Disqualification, Aaya Ram Gaya Ram 

Introduction          

 Political defection has always been a contentious issue in India. Recently, there has been a huge uproar to scrap Anti-defection laws as the law is turning up to be ineffective in every crisis, be it in Maharashtra, Rajasthan, or Karnataka. Each incident creates a situation of a constitutional crisis and further startles everyone with new lacunae of current laws. In the case of the Maharashtra Crisis, Eknath Shinde, leader of the Shiv Sena Party, turned rebel and joined BJP along with 40 legislators from Shiv Sena. To avoid any meeting with the Party until the government falls, rebel MLAs went camping in Guwahati and were accorded security by police in BJP-ruled Assam. Fearing a fallout of the government, Shiv Sena approached Supreme Court for interim relief, but such was denied. Soon, after this decision, the then CM-Uddhav Thackrey resigned. The rebel faction formed a new government with BJP, and their leader was rewarded with Chief Minister Post. How ironic could it be when the legislators do not follow the laws they are expected to frame? But now and then, we see such incidents and blatant violations of the law to satisfy their covetous wishes.

Defection & Anti-Defection Laws in India     

Defection is derived from the Latin word ‘defectio’, which means an act of conscious abandonment of allegiance or duty to a person or cause. In layman’s terms, it means when elected representatives decide to rebel against the ideology based on which they were elected in the first place, it could be by voluntarily giving the membership of the party, voting or abstaining from or defying any party whip, and joining any other party. Defection is not a new occurrence. It goes back to the colonial period. At that time, it was mainly known as ‘Floor Crossing,’ and it’s popularly referred to as “Resort Politics”. The first instance of defection can be traced back to Shyam Lal Nehru, who defected from the Congress party to the British side. Between 1957 and 1967 about 97 MLAs & MPs defected from Congress to another party, and `419 defected to it fuelled by political corruption and bribery lured legislators to executive offices if they defect. A committee in 1969 was formed under the Chairmanship of Y.B. Chavan, the then home minister, on the need for law, recognized that among 210 defecting MLAs all over India 116 of them were rewarded with ministerial posts in the new government they formed. This committee proposed barring defectors from office and future elections for a certain period.3 From 1967 to 1983, about 2700 odd cases of defection were recorded. 1900 defected into Congress or Congress I and others out of it. It was high time for the newly formed government to enact a law to curb these defections, essentially to promote stability and insulate them from the evil defections.

Anti-defection Law  (1985-2003) 

Intent & Impact     

The new government was formed under the leadership of Shri Rajiv Gandhi with a landslide victory of 404 seats soon after the assassination of his mother, Indira Gandhi. His government unanimously passed the anti-defection bill, which came into force on 18th March 1985. This act interpolated Tenth Schedule to the Indian Constitution by the 52nd Constitutional Amendment which disqualified the legislators from the house if they resign from that party after the election or defy any direction of the party on a vote. The law dealt with the cases of defection in Parliament as well as State Legislature by members of any political party, independent members & nominated members. 

Tabular Illustration 1: Key Provisions 

Factors                     Provisions in Tenth Schedule 
Grounds for Disqualification Member of a house belonging to a political partya. Voluntary gives up membership of that partyb. Votes contrary to party directions or abstainsc. Independent legislator joins the party after the electiond. Nominated member joins a party six months after becoming a member of legislature
ExceptionA member will not be disqualified if his original political party merges with another party, provided 2/3rd members have agreed to merge, and those left can function as separate groups. 
Power to DisqualifyThe Chairman or Speaker of the House
Jurisdiction of CourtPara 7 of law bars the court from deciding on disqualification of members from the house, but a review can be made of the decisions of the Speaker or Chairman, provided that The decision violates the Constitutional Mandate If made in a Malafide wayIf the decision is perverse If it is not complying with the principle of natural justice and perversity 
Burden of Proof The SC in Ravi S Naik Judgment ruled that it is the legislator who will have to prove that he had no willingness to leave. 
FOSE v. Tenth Schedule The SC in Kihoto Hollohan Case ruled that the Tenth Schedule doesn’t bring down the rights of members u/a105 & 194 

Anti-defection Law(2003-2022)

The committee on Electoral Reforms, popularly known as the Dinesh Goswami Committee in May 1990, the Law Commission of India in its 170th Report on “Reforms on Electoral Laws” in 1999, and the National Commission to Review the Working of the Constitution (NCRWC) in its report of  2002, suggested repealing paragraph 3 of Tenth Schedule which provided exemption from disqualification in case of splits4. Considering all the suggestions Parliament in 2003 amended the Anti-defection law through the 91st Constitutional Amendment to conform to the proposals suggested and fill lacunae. Despite all the amendments, there have been numerous instances shaking the conscience of citizens in democratic principles, a term popularly used in defection is ‘Horse-Trading’ where defection is practiced like buying MLAs or MPs, and it has not stopped despite penalizing provisions. Despite all the amendments, there have been numerous instances shaking the conscience of citizens in democratic principles, a term popularly used in defection is ‘Horse-Trading’ where defection is practiced like buying MLAs or MPs, and it has not stopped despite penalizing provisions. 

Intent & Impact 

Despite the law being in place to control it, various controversial issues have arisen. Whether this law restricts a legislator from voting according to his conscience? Whether this law curbs debate and dissent within a party on issues of public importance instead of avoiding the risk of losing a seat? Whether this law prevents a legislator from putting forward his actual view on any topic? Should the decision of disqualification be in the hands of the Speaker/Chairman, a member of the majority coalition party, or some external, impartial body? Anti-defection law has been a contentious issue in Indian politics with its limitations and failures. It was brought with the cardinal motive of promoting government stability. Still, the law essentially goes against the democratic principles to which legislators are usually expected, like voicing the opinion of its electors without fear or favour, holding the government accountable, and ensuring healthy debate on issues of public importance. The law has not only failed to check defection but also has made the representative a moot spectator.

I. Effect on Legislator Role 

Anti-defection law has restrained a legislator from performing his functions according to his conscience. Though the aim was to curb defection, it snatched away his acts based on larger public interest and voters’ interest, and now all of them are based on the direction of the party line, which is seriously undermines the role of the legislator in a parliamentary democracy. Even if a member differs on some matter because of his voter’s interest, he will be forced to vote unanimously to avoid losing his seat. For example, A member laying out his difference on GST matters or part income of the state in IGST will have him differ, but he will have to vote along the party line. To avoid disqualification, he will be compelled to follow the party whip, notwithstanding whether it is in the interest of his constituents or not. It breaks the chain of accountability between voters and representatives. It meddles with the balance of power between the executive and legislature as legislators won’t be able to hold the government accountable.

II. Effect on Voter Role

One of the major flaws in Anti-defection law is that it interrupts the chain of accountability between an elector & representative. A voter elects someone based on the promises they make and the ideology they support which can be measured through their voting in the house. Supposing constituents want their representative ‘A’ to support the ‘Regularization of APMC bill’ and the party to which he belongs decides to oppose it, he will have no choice but to follow the party line to avoid losing his seat afterward. He can proudly justify and absolve his action as being necessary because of the law being in place.    

 III. Effect on Legislature’s Role

India, a multiparty democracy, is ruled mainly by the single largest majority party or party with a coalition. Legislators with different parties base their votes on the whip of a party before the votes on various matters. Senior leaders of those parties decide whether to vote in favor or against, and legislators have to follow those decisions irrespective of the needs of their constituents. This reduces the legislative body from a deliberative body to one based on whips which seriously undermines the principles of parliamentary democracy. 

Defections: India v. Other Countries     

 Defection is an issue for India and countries like the US, the UK, and Canada. They do not have anti-defection laws. If any member defies any whip, he is neither disqualified nor penalized in any other way. Still, there are instances where parties in the UK have followed up with disciplinary action against the member who has not followed the whip. All 40 countries with anti-defection laws, India, Bangladesh, Pakistan, Guyana, Sierra Leone, and Zimbabwe, have the provisions to disqualify their legislators if they defy any whip.

Way Forward      

Anti-defection law has been a considerably futile effort as it has failed to meet the goals. It has not ensured stability, and defections are going on till today. It has had many inadvertent consequences, like restricting the legislator to the party line and not allowing him to exercise his judgment and perform his constitutional duty. It has cut off the chain of accountability between a voter and a representative. Several amendments and suggestions of various aspects have been made, like the application of this law in no-confidence motion only, and the President should decide on disqualifying India for Center and Governor for State. Still, all these have been left at bay as the answer lies in a political will, not a legal one. 

Endnotes     

Image Source: Anti-Defection Law

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