Analysis of Anti-defection law in India

PRAMITA

Introduction

Defection’ has been defined as, “To abandon a position or association, often to join an opposing group”. [1] This phenomenon hails its origins from British house of commons where a legislator changed his allegiance by crossing the floor and moved to the opposition side, many modern democratic countries have the floor crossing laws, they are not mere laws but also are enshrined in the constitution. The rationale behind anti defection is maintaining the parliamentary stability

History of party defections in India

Party defections are not new to India, in the British era , during Montford reforms, Sham Lal Nehru a member of central legislature, elected on congress ticket crossed the floor and joined British side. In 1948 Congress Socialist party left the congress and directed all its members to resign their seats and seek re-election. In 1950 about 23 congress MLAs crossed the floor and joined to form Janta party in UP , in 1953 the PSP leader defected from PSP and joined Congress to form Government. In Andhra Pradesh during the period of 1957-1967 97 members defected from congress and 419 defected to it. [s2] However the phenomenon of defection reached it’s peak where the numbers began to speak for themselves, within one year from the election of 1967 ,we witnessed 500 odd defections , it was the era when “Aya ram Gaya ram “syndrome was introduced in political vocab. when Gaya Lal changed his party position thrice in afortnight which triggered the worst cyclic game of the political defections and the counter- defections. [1]

Following “Aya Ram, Gaya Ram “event, under the leadership of Y.B Chavan, committee on defection was constituted whose recommendations are mentioned as follows: –

YB Chavan committee’s recommendations

It reached on an agreement over the issue of defining a “defector”-“an elected Member of legislative council or MLA of a state /UT who had been allotted reserved symbol of any political party who voluntarily renounces allegiance or association with such political party provided his actions is not in consequence of a decision of the party concerned.”

Since the lure of the office and political opportunism played a great role in defections out of 500 odd defections , 118 were persons were given ministerial berths. Committee recommended that defecting legislator must be barred for a period of one year until he goes back to the electorate and gets himself reelected.[2]

Legislative Attempts

Aftermath of these recommendations 2 legislative attempts were made, both unsuccessful. In 1973, 32nd constitutional amendment was made which sought to amend 8 articles of the Constitution (101-103,164,190-192) but it failed due to the dissolution of the house and second in 1978 by Shanti Bhushan during Janta party period, this too failed due to stiff opposition, ironically from its own members.

The Constitution (Fifty Second Amendment Act)1985

After seven years from the lapse of the bill, government introduced the Constitution (52nd amendment) Bill in January 1985, statement of objects and reasons read “the evil of defections has been a matter of national concern, if it’s not combated , it is likely to undermine the very foundations of our democracy that sustain it”

It amended articles 101,102,190 and 191 of the Indian constitution relating to vacation and disqualification from membership and added 10th schedule to the constitution.

It broadly states the following points, An elected member of a party can be disqualified on two grounds:

  • If he voluntarily gives up his membership or,
    • He votes or abstains from voting in the House, contrary to his party’s direction and without obtaining prior permission — on the condition that his abstaining from the voting should not be ignored by his party by more than 15 days.

The following, however, will not be considered defections:

  1. If a complete political party merges with another political party (2/3rd of its members)
  • If a new political party is created by the elected members of one party
  • If the party members do not accept the merger between the two parties and opt to perform as a separate group from the time of such a merger.

Meanwhile, the presiding officer is the authority to decide on defection cases.

Rule 7(members of Lok Sabha disqualification on the grounds of defection,1985)barred jurisdiction of all courts of judicial review including Supreme Court under article 136 and High Courts under article 226 and 227. However in the case of Khilto Hollohon vs Zachilhu and ors[3] it was held that the Speaker, while deciding cases pertaining to defection of party members, acts as a tribunal, and his/ her decisions maybe subjected to judicial review.) [4]

Purpose of the law was drowned till 2003 when a total of 103 MLAs were disqualified, 20 out of 22 and all 10 splits in Lok-Sabha and Rajya-Sabha respectively were allowed and a total of 80 cases of merger were allowed in state assemblies. The blanket exemption of splits and mergers meant “the greater the sin, the greater will be the immunity” .The law itself was being chastised on the grounds of violation of freedom of speech and expression of parliamentarians, as pointed out in a minority judgment given by justice J.Verma and L.M Sharma in Kihito Hollohan case.

Various committees and commissions gave their Hon’ble suggestions which are listed as follows: –

Dinesh Goswami Committee on Electoral Reforms (1990) recommended

That an enquiry must be done by Election com-mission of India and thereafter the President/Governor must decide on the issue of Defection and also called for a total ban on splits and merger of political parties during the term of Lok Sabha or legislative assembly.

  • Law Commission (170th Report, 1999)
    • Pre-political electoral fronts should be treated as political parties under anti- defection law
    • Political parties should limit issuance of whips to instances only when the government is in danger.
Halim committee on anti-defection (1994)
  • The term voluntarily giving up membership and political party be clearly defined
    • Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members.

Ninety Seventh Amendment bill,2003

The last step in the legislative journey of the anti-defection law came in 2003 by during Vajpayee’s era. The role of lure of office and horse trading in defections was acknowledged. The Split provision was finally deleted. The 2003 Amendment also incorporated the 1967 advice of the Y B Chavan committee in limiting the dimensions of the Council of Ministers, and preventing defecting legislators from joining the Council of Ministers until their re-election. However, as events in the years and decades have demonstrated, these amendments have had only a limited impact.

Problems with anti-defection law and way forward

The very fundamental problem with anti- defection law is that it violates the freedom of speech of the legislator, restricts her from voting in line with his conscience, judgment and interests of her electorate. Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for. Whereas, in countries like Papua new Guinea, members are only supposed to vote in accordance with their party positions on key issues like the budgets, votes of no confidence etc. Report on national commission for review of working of constitution also recommended similar kind of suggestion. It’s pivotal for ensuring Intra party democracy.

“The removal of the split provision prompted political parties to engineer wholesale defections (to merge) rather than the smaller ‘retail’ ones.” Legislators started resigning from the membership of the House in order to escape disqualification from ministerial berths. In the recent case of Shrimanth Balasaheb Patil vs Hon’ble speaker Karnataka Legislative Assembly and Ors., the Court observed that resignation will not efface the effects of disqualification. Disqualification relates back to the time on which it takes place. Resignation does not make it redundant. [5]

Another major problem with this law is that the Speaker enjoys almost absolute powers. On many instances’ speakers have shown their political leaning. Given that the Courts can intervene only when the Presiding Officer has decided the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made, the law does not specify a time-period for the Presiding Officer to decide on a disqualification plea. Recently In Keisham Meghachandra vs Honble speaker Manipur legislative assembly SC clearly clarified speaker must decide on the disqualification plea within 4 weeks.

Conclusion

It has been rightly said by Dr B.R Ambedkar that “Democracy in India is only a top dressing on an Indian soil,which is essentially undemocratic “, we have to nurture the soil by accompanying any reform with curbing the role of money and muscle power to curb the menace of defection and hold the representatives responsible to the electorate that elected them.[6]


[1] M. Mondal, “ELECTION LAWS: AN ANALYSIS WITH SPECIAL,” Shodhganga, 2015

[2] P. Kumar, Journal of Global Research and Analysis, vol. 5(1), no. ISSN 2278-6775, 2016

[3] Khilto Hollohon vs Zachilhu and ors 1992 SCR (1) 686

[4] C. Roy, “PRSIndia,” July 2019. [Online].

[5] Shrimanth Balasaheb patil vs Hon’ble Speaker Karnatka legislative assembly and ors,

2019. SC WP No (Civil). 992/2019

[6] Keisham Meghachandra vs Honble speaker Manipur legislative assembly,  SC Civil Appeal No. 547/2020

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