Anti Defection Law- An Unfinished Business

Introduction

• Recent events like the constitutional crisis in Puducherry (2021), Rajasthan (2020), Karnataka (2019), Maharashtra (2019), and many others (Manipur, Goa, etc.) have shown that the defections, political horse-trading, and resultant political and constitutional crisis have not been eradicated from the Indian political scenario as was hoped when the landmark legislation of Anti Defection Law, 1985 was added to the Indian constitution.
• Rampant political defections, the concomitant threat to India’s representative democracy and political ethics, and the failure of the extant Anti Defection Law to keep them in check have been in national discourse time and again, and hence is essential to understand.
• Amendments are required urgently to remove the scourge of masked political defections and preserve the sanctity of representative democracy.

So what is Anti Defection Law? Why was it created? What does defection mean and why is it undesirable? These and many such questions shall be discussed in the following report.

Historical antecedents to the present crisis

• Politics in India, especially after the 1967 elections were marred by a ridiculously high rate of defections and was infamously known as the “Aya Ram Gaya Ram” political phase.
• After the 1967 elections, Congress had lost its absolute dominance at the Centre and failed to form governments in 7 states.
• Subhash Kashyap in his book Politics of Power mentions that almost every single case of state government collapse post-1967 was a direct result of Members of Legislative Assembly (MLAs) changing their political allegiances.
• By the end of March 1971, approximately 50 percent of legislators had changed their affiliations. Several legislators did so more than once. In the case of State Assemblies, as much as 5 percent of the total membership has been involved
• Since the 4th General Election in 1971, 142 Members of Parliament (MPs) and around 1969 MLAs had been involved in political defection.
• Such defectors were also politically About 15 Chief Ministers between the period 1967-83 came from among those who had defected.
• This rot in the system was symbolized by an MLA from Haryana known as Gaya Lal who had defected and counter defected 3 times within 14
• In such circumstances, P Venkatasubbaiah MP, Lok Sabha proposed a High-Level Committee to tackle the problem of “shifting party allegiances”.
• So despite some opposition, such a committee was set up under the then Home Minister Y B Chavan.
• Following the report, two failed attempts at legislating on this issue were made - once under Indira Gandhi in 1973 and once under Janata Party’s Morarji Desai in 1978.
• It was finally carried through as the 52nd Constitutional Amendment Act 1985 and appended as the 10th Schedule to the Constitution, thus giving this law constitutional sanctity.

Understanding Anti-Defection Law, 1985

What does Political Defection mean?

• An MP or MLA is said to have defected, if (s)he switches his/ her political allegiance to any political party other than the one of which he was originally a member when he won his seat in the Legislature. (As defined by the Y B Chavan Committee).

Provisions of the 10th Schedule

• Suo Motu or on the petition of some member of the House, the Presiding Officer of the House may initiate an inquiry regarding defection.
• Defection is understood to have occurred in the following cases
  • A legislator voluntarily giving up the membership of his original political party.
  • A legislator failing to vote according to the Whip (directive) issued by his original political party or abstaining to vote when so directed, with such action not being sanctioned beforehand or endorsed within 15 days of its occurrence.
  • An independent MP/ MLA who has joined a political party after being
  • A nominated MP/ MLA who joins a political party after 6 months of his joining the office.

• Following cases are exempt from being punished as defection
  • A merger between two political parties or factions where 2/3rds of the members agree to the merger. Neither those merging nor those remaining are taken to be guilty.
  • A split within a political party where 1/3rd of the members choose to split. (Since Repealed)
  • The Speaker who gives up the membership of his party on joining the office to maintain the neutrality required of the office.

• The Presiding Officer was made the sole authority to decide on this matter, adjudicating as a tribunal, his decision is final.

The Act also punished legislators for their actions outside the House (G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly SC said that speeches against their party outside the House meant giving up membership) against their parties, with the punishment being the loss of seat.

Why was the law needed?

1. Ensure Party Discipline - a candidate fighting an election and winning on a party’s symbol should stay loyal to its manifesto.
2. Reduce Political Instability - To ensure that political horse-trading doesn’t occur rampantly and legislators are deterred by repercussions on their political careers.
3. Protects Democracy - Prevents breach of people’s trust as their mandate to a particular party remains safe as governments are not toppled.
4. Discouraging unethical practices and corruption in politics

Immediate criticisms of the Law

• Encroaches upon Article 105 and 194 - It is said to reduce the legislators’ freedom to speak freely and vote according to their conscience. However the Supreme Court (SC) in Kihoto Hollohan vs Zachilhu, 1992 ruled that this law does not curtail the freedoms of the legislators.
• Undermines the principles of Representative Democracy -

• • May encourage legislators to place party interests over constituents’ interests, thus making them agents of parties rather than that of their constituents.
  • These provisions extend to all votes, not just No-Confidence motions and even
  • on Rajya Sabha seats where there is no danger of instability.
  • It kills all ‘Legitimate Dissent’ within a party and may give rise to dictatorial decision-making on important Bills and policy decisions.
• Dampens Legislators’ Initiative - A legislator may think he has no option but to follow the whip, and so would stop taking interest or initiative to improve legislation and simply mechanically cast votes, which would not be in the public interest.
• Against the principles of Accountability - The founders of our Constitution preferred continuous accountability of a Parliamentary system to the stability of a Presidential system. However, with a ban on individual dissent and priority to party loyalty in all matters, the MPs and MLAs are unable to enforce accountability on the Executive.
• Sanctions wholesale but punishes retail defections - Mergers and splits used to bypass this law and continue corrupt political horse-trading.
• Doubts regarding the technical capabilities of the adjudicating authority - Shivraj Patil, Speaker, Lok Sabha (1992), himself said that he had serious doubts about a Presiding Officer having sufficient technical expertise in adjudication to carry out such a critical task.
• The artificial distinction among elected nominated and independent legislators
• Not Foolproof - Governments were still toppled, albeit less often, and covertly under different pretexts.

Course correction

1. Judicial Interventions

• Kihoto Hollohan vs Zachillhu, 1992 [Landmark Judgement] - Petitioners said that the powerful role given to the Presiding Officer (by Rule 6, 10th Schedule) violated the Basic Structure doctrine by undermining Parliamentary Democracy, as Presiding Officers may act under bias in favor of their parties and may not be independent.

Majority judgment authored by Justice Venkatachaliah and Justice Jayachandra said-

• • The Speaker/ Chairman accorded a pivotal position in the Parliamentary scheme of the Constitution and are expected to take far-reaching decisions, thus the powers conferred by this Act are not exceptional.
  • However since the Presiding Officer acts as a Tribunal while adjudicating such cases, they come under the supervision and review jurisdiction of the SC and hence their decisions will be subject to Judicial Review.
  • Such a Judicial Review will not take place until the proceedings have been closed and a decision has been taken.

The dissenting opinion read

• Presiding Officers’ tenure depends on a majority in the House therefore the requirement of independent adjudicating authority is not satisfied.
• Democracy is a Basic Structure and independent machinery to adjudicate on the competence of members of the House is thus essential.

2. Amendment - 91st Constitution Amendment Act, 2003

• Brought in by the Vajpayee government, implementing many recommendations made initially in the Y B Chavan Committee report as well.
• Removed the split by 1/3rd members from the list of exemptions to the Act, in view of the abuse of this provision as a bypass.
• Limited the size of the Council of Ministers (CoM) to be a maximum of 15% of the strength of the Legislature in question, to end the lure for lucrative ministerial berths or Offices of Profit to defectors.
• A member disqualified under this Act will also be disqualified from being appointed as a minister or holding a remunerative political office.

Why is anti-defection law an “unfinished business”?

Despite course corrections in the intervening years to plug the gaps in the law, loopholes and issues remained and were abused for unprincipled and unethical politics of gain and have failed to provide lasting stability, as witnessed by the recent spate of MLAs and Rajya Sabha MPs defecting in search of greener pastures.

1. Abuse -

To circumvent the limit on ministerial berths offered in CoM, the post of Parliamentary Secretaries was invented ( alleged to be an Office of Profit) The Conflict of Interest endangers the responsibility of holding the Executive accountable.

This issue has also been controversial in recent years and subject to judicial scrutiny and intervention (Delhi MLA Disqualification case).

2. Loopholes –

New covert forms of defection continue to occur centered around the office of the Speaker and the increasing partisanship being displayed in contravention to Constitutional conventions.

• Parties continue to topple governments by affecting resignations from the House of about 2/3rd membership - this ensures merger case protection and frees members from Whip (as directed by SC in Karnataka judgment ‘19) while also damaging opponent’s majority in House.
  • E.g in Karnataka 15 MLAs resigned from JD(s)- Congress alliance, in Goa 10 out of 15 MLAs switched from Congress to BJP, In Telangana 12 out 18 MLAs switched from Congress to TRS, in Rajya Sabha 4 out of 6 TDP MPs switched to BJP.
• No clear definition of the phrase “voluntarily giving up the membership of a party”. In Ravi S Naik v. Union of India case, SC has interpreted that in the “absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct”, thus being open to interpretation and left to the Speaker's discretion. It is a loose end that is often exploited.
• Speaker - the Weak Link
  • No specific timeframe to decide on the proceedings - The Speakers would hasten (Arunachal Pradesh‘16) or inordinately delay (Manipur’17) decision on the disqualification, thus taking an active political interest in building or breaking governments in states in an undesirable partisan manner.
  • In Kihoto Hollohan’92 SC advised judicial restraint while defection proceedings were sub judice (Art 212 - Judiciary not to intervene in proceedings of legislatures.)
  • In Karnataka judgment ‘19 too, SC refused to direct the Speaker to decide on the resignation of MLAs in specified time.
  • However, given recent developments, the SC for the 1st time intervened and ordered the removal of the Manipur minister from cabinet invoking powers under Article 142, as his defection proceedings had been pending since 2017.
  • The SC has also recently ordered that such proceedings be decided within 3 months, however, it’s unclear what would happen otherwise.
  • This loophole has also resulted in “Resort Politics” where MP/ MLAs are secretly taken away to luxurious resorts and deprived of phones, etc to prevent horse-trading.

Way forward

Following are the few ways to plug the loopholes in present law:

• Whips to be issued only on votes regarding No Confidence Motions and/ or budgets and not on ordinary Bills, to restore legislators’ primary role as constituency representatives.
• Remove mergers from the list of exemptions as well.
• Increase in internal democracy and transparency within political parties (eg. bringing them under RTI) to ensure better party discipline and consensus without dictatorial whips being issued.
• Proper definition of “voluntary giving up of membership” so that ambiguities may not be exploited to evade disqualifications.
• Time limit to be included in the law, for deciding upon disqualification thereby reducing the discretionary power available to the Speaker who may be partisan.
• Alternate independent adjudicating mechanism - eg. President/ Governor on binding advice of Election Commission, or permanent tribunal headed by retired justices (recent SC suggestion).

Conclusion

So many issues keep rising despite such efforts because we seek a legislative solution to a political problem. No matter how well-drafted a piece of legislation is, ultimately the success of its implementation depends on constitutional functionaries acting in good faith and public interest, as said by Dr. B R Ambedkar in Constitutional Assembly Debates. It is this good faith that has increasingly come into question in recent times especially as the Speaker and Governor are oftentimes said to be acting in a partisan manner (Arunachal’16, Karnataka’19), flouting conventions with impunity.

The Anti Defection Law has contributed a great deal to limiting overt political horse-trading with impunity to limit the damage to democracy and political stability. However as is clear, certain issues and loopholes remain which have been detrimental to the functioning of our legislatures and ensuring accountability of the Executive and preserving stability, especially in states. Thus the Anti defection law needs to be overhauled and not repealed.