INTRODUCTION:
Elections in a democratic country allow the people to assert their desire; political defections occurring between elections undermine that assertive act and thus the expressed will of the people. Defections were common in India even prior to the country’s independence, when there was limited representation. Beginning around 1960, the rise of coalition politics increased the incidence of defections as elected representatives sought to occupy a berth in the council of ministers.
Rajiv Gandhi’s first action as Prime Minister was passing the Anti-defection law in January 1985. According to this law, an elected Member of Parliament or legislative assembly could not join an opposition party until the next election.
WHAT DO YOU MEAN BY ANTI DEFECTION?
Defection can be defined as a situation in which party leader abandons his loyalty toward his own party and provides support to other parties.
When an elected representative joins another party without resigning his present party, it is called defection. Thus a defector is one who is elected from one Political party and joins (Practically for being in power) another Political party.
The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.
WHY ANTI DEFECTION LAW IN INDIA?
- For a long time, the Indian political scene was besmirched by political defections by members of the legislature. This situation brought about greater instability in the political system.
- The infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous defections by the legislators. Legislators used to change parties frequently, bringing about chaos in the legislatures as governments fell. In sum, they often brought about political instability.
- This caused serious concerns to the right-thinking political leaders and Intellectuals of the country.
- Several efforts were made to make some law to curb defections. Starting from private members’ efforts, Bills were brought in by the government at different times.
- No Bill could be passed because of one reason or the other. However, the most important reason was that there was no consensus on the basic provisions of an anti-defection law.
- Members of Parliament were concerned about the freedom of speech in Parliament and other legislatures as they had a fear that too stringent a law on defection would likely curb the freedom of speech (which is a Fundamental right) of the legislators. A lot of time was taken before a consensus could be reached on this issue.
- Finally, in 1985, the Rajiv Gandhi government brought a Bill to amend the Constitution and curb defection. The main objective for which The Anti-Defection Laws was introduced in the Constitution was to combat “the evil of political defections”.
- The 10th Schedule of the Constitution, which contains the anti-defection law, was added to the Constitution through this amendment.
LAW DEALING WITH ANTI DEFECTION IN INDIA?
The tenth schedule of the Indian Constitution, which is also called the Anti-Defection Act, was amended in 1985 to prevent political defections and stop politicians from changing parties for the lure of office.
Under Anti-Defection Act, the Rule 2– tenth schedule lays the grounds for disqualification of the member’s i.e.:
- If a member of a house belonging to a political party:
- Has voluntarily given up his membership of such political party, or
- Votes, or abstain from voting in such House, contrary to the direction 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.
- If an independent candidate joins a political party after the election.
- If a nominated member of a house joins any political party after the expiry of six months from the date when he becomes a member of the legislature.
Rule 4 and 5- states the exemption from disqualifications i.e.:-
A member of the house shall not be disqualified where his original political party merges with another political party, and he and any other member of his political party:-
- Have become members of the other political party, or of a new political party formed by such merge
- Have not accepted the merger and opted to function as a separate group.
Rule 3– state that there will be no disqualification of members if they represent a faction of the original political party, which has arisen as a result of a split in the party. A defection by at least one-third members of such a political part was considered as a spilt which was not actionable.
Speaker or the chairman of the house is the authority to decide on defection cases. The Anti Defection Law applies to both Parliament and state assemblies.
SUCCESSF/FAILURE OF ANTI DEFECTION LAW IN INDIA?
The law allows defections, if it involved one-third members, i.e. it had provisions regarding exemption from disqualification in case of a ‘split’ in a political party. But undesirably it resulted in mass defections instead of individual defections.
How far has the law succeeded in achieving its goal?
The law certainly has been able to curb the evil of individual defection to a great extent. But, of late, a very alarming trend of legislators defecting in groups to another party in search of greener pastures is visible.
The recent examples of defection in state Assemblies and even in Rajya Sabha bear this out. This only shows that the law needs a relook in order to plug the loopholes if any. But it must be said that this law has served the interest of the Polity to an extent.
Political instability caused by frequent and unholy change of allegiance on the part of the legislators of our country has been contained to a very great extent. That is a story of success of one of the most important legislation that the Indian Parliament has enacted
The Logic of those opposing Anti Defection Law:
- It affects the independence of MPs/ MLAs.
- Constitution drafters didn’t intend to give the control of members to political parties. Interestingly, it’s only in the 10th schedule, which was included in 1985 that political parties are mentioned in constitution.
- Many members speak up their mind and conviction more discussion and thus better debates and solutions in parliament. Anti-defection law is against this.
- In a diverse country like India, members also represent their constituencies. Hence, every member needs to be given voice to give voice to all regions and sections of the population.
- No incentive for MPs/MLAs to research and understand on policies
- Individual defection has given way to group defection
SOME IMPORTANT JUDGMENTS DEALINGS WITH ANTI DEFECTION LAW
- In Kihoto Hollohon v. Zachilhu and Others, held that the law is valid in all respects except on the matter pertaining to judicial review, which was held to be unconstitutional
The main issue in this case was whether the tenth schedule curtails the freedom of speech and expression and subvert the democratic rights of the elected members in parliament and state legislature? And also that whether granting finality to the decision of the Speaker/Chairman is valid? So it was finally held in this case that the tenth schedule neither impugns upon the freedom of speech and expression nor subverts the democratic right of elected members. The tenth Schedule is constitutionally valid and this provision is valid, However the High Courts and the Supreme Courts can exercise Judicial Review under the constitution. But the Judicial Review should not cover any stage prior to the making of a decision by the speakers/Chairmen. - The Supreme Court, in the Ravi Naik vs. Union of India case, has interpreted the phrase ‘voluntarily gives up his membership.’ It says: “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.
“Even in the absence of a formal resignation from membership, an 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.” - In another judgment in the case of Rajendra Singh Rana vs. Swami Prasad Maurya and Others, the Supreme Court held that the act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government itself would amount to an act of voluntarily giving up membership of the party on whose ticket the said members had got elected.
WHAT ARE THE CHANGES REQUIRED IN ANTI DEFECTION LAW ?
- To prevent Members from mass resigning in order to switch parties under a quid-pro-quo deal, the amended Anti-Defection Law should forbid a resigning Member from being re-elected during the by-election that follows immediately after their resignation. But then this may lead to dictatorship of political party.
- If a Member resigns, they should only become eligible to contest again after the term of the Assembly ends (that is, during the following general election or state election; not the by-election that results from their resignation).
- Nowadays, no real democratic discussions happen inside political parties about major issues affecting the country. Individual MPs and MLAs need to be empowered to think independently.
- Anti-defection law should be applied only to confidence and no-confidence motions (Dinesh Goswami Committee on electoral reforms, 1990) or only when the government is in danger (Law Commission (170th report, 1999).
- The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances.
- Instead of making Speaker the authority for disqualification, the decision should be made by the president or the governor on the advice of the Election Commission. This would make the process similar to the disqualification procedure as given in Representation of Peoples Act (RPA).
- There can be additional penalties for defectors as well.
Conclusion:-
Impartiality, fairness and autonomy in decision-making are the hallmarks of a robust institution. It is the freedom from interference and pressures which provide the necessary atmosphere where one can work with an absolute commitment to the cause of neutrality (as a Constitutional value).
At a time when India’s rank has fallen in the latest Democracy Index (2019), it is expected from Parliament to take steps to revamp and strengthen the institution of the Speaker. The introduction of the Tenth Schedule in the Indian Constitution was aimed at curbing political defections. Though the law has succeeded in a reasonable way but due to some of its loopholes, it has not been able to achieve the best it can. Corrupt politicians have, through their dishonesty, been able to find the defects in the law to suit their needs in the best possible way. The changes required in the law as mentioned above might help it to develop to the best possible extent.
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