The following article explores key political concepts, including the Anti-defection law (52nd Amendment), the Role of the Speaker, and the significance of the 10th Schedule.

The ‘Anti-Defection Law,’ its purpose is to prevent legislators from switching political affiliations during their tenure in office.

The vibrant democracy of India serves as evidence of its dedication to upholding transparent and equitable elections, empowering individuals to select their representatives. Essential pillars such as the Anti-Defection Law and Electoral Reforms actively contribute to preserving the authenticity of the democratic mechanism and fostering political steadiness.

What Do We Mean by Anti – Defection Law?

The Anti-Defection Law, officially termed the Tenth Schedule, was integrated into the Indian Constitution in 1985 through the 52nd Amendment Act. Its core aim was to enhance governmental stability by discouraging elected representatives (MPs/MLAs) from switching parties. This law was introduced in response to the instability caused by legislators changing parties following the 1967 general elections.

Under this law, MPs/MLAs can face disqualification if they leave their current party to join another. Notably, the provision doesn’t penalize parties for accepting or encouraging defectors. Interestingly, a provision exists where a group of MPs/MLAs can merge with another party without being disqualified, provided at least two-thirds of the members are in favor of the merger. Initially, the requirement was one-third, but this was changed by the 91st Constitutional Amendment Act in 2003.

Disqualified members can still contest elections from other parties for seats in the same legislative house. Decisions about disqualifications due to defection are referred to the Chairman or Speaker of the respective House, and these decisions are subject to judicial review. However, the law doesn’t specify a timeframe for the presiding officer to make a decision on defection cases.

What are the Grounds for Defection?

Disqualification Criteria under Anti-Defection Law:

1. Voluntary Resignation:

   – When an elected member willingly relinquishes their political party membership.

2. Violation of Party Instructions:

   – If the member votes or refrains from voting in a legislative house against their party’s directives.

   – Without obtaining prior permission from the party or its authorized representative.

   – Disqualification is contingent on the party not pardoning the abstention within 15 days.

3. Independent Elected Member:

   – Disqualification applies if an independently elected member joins a political party.

4. Nominated Member:

   – Disqualification occurs when a nominated member joins a political party after six months of nomination.

Exceptions under the Anti Defection Law

– If two-thirds of a party’s legislators merge into another party, neither the joining members nor those staying will be disqualified.

  • Resignation and Rejoining:

– The elected chairman or speaker can resign from their party, and if they step down from their position, they can rejoin the party.

  • Change in Law:

– Previously, parties could be split, but this practice is now prohibited.

  • Authority for Decisions:

– The presiding officer of the House holds the authority to decide any matters related to disqualification due to defection.

How Defection Affects the Political System? 

  • Undermining Electoral Mandates:

Defection involves elected legislators who, despite winning on one party’s ticket, switch to another, often driven by desires for ministerial positions or financial benefits.

  • Disrupting Government Functionality:

The well-known “Aaya Ram, Gaya Ram” phrase emerged during the 1960s as a response to frequent lawmaker defections, causing instability in governments and disrupting administrative operations.

  • Encouraging Unethical Practices:

Defection encourages unethical practices like horse-trading of legislators, contradicting the principles of a democratic system.

Is the decision of the Presiding Officer subject to judicial review?

Initial Stipulation and Supreme Court Ruling:

  • The Anti-Defection Act initially granted the presiding officer’s decision finality, preventing any legal challenges.
  • This provision aimed to establish the presiding officer’s absolute authority, exempting it from the scrutiny of courts.
  • The Kihoto Hollohan case in 1992 marked a crucial turning point, as the Supreme Court deemed this provision unconstitutional.
  •  The Court’s rationale lay in the fact that this provision intended to strip the Supreme Court and high courts of their jurisdiction concerning the Anti-Defection Act.

Shift in Perspective via Supreme Court Ruling:

  • The Supreme Court’s verdict in the Kihoto Hollohan case introduced a significant shift in interpretation.
  •  The Court emphasized that when presiding officers make determinations under the Tenth Schedule (Anti-Defection Act), they should act as quasi-tribunals.
  • Consequently, the decisions by these officers, like other tribunal rulings, became subject to judicial review based on factors like malafides, perversity, and more.

Rejection of Political Bias Argument:

  • The Supreme Court firmly dismissed the notion that assigning adjudicatory powers to the presiding officer was inherently flawed due to potential political bias.
  • The Court’s stance was rooted in the belief that a presiding officer’s political role doesn’t necessarily compromise their capacity for impartial legal judgments.

Delayed Judicial Intervention Acknowledged:

  • The Supreme Court recognized that judicial intervention might not occur until the presiding officer issues the final verdict.
  •  A pertinent case from 2015 illustrated this principle. The Hyderabad High Court declined to intervene in a petition alleging delay by the Telangana Assembly Speaker in taking action under the anti-defection law.

Overall Impact and Understanding:

  • The evolution of interpreting the Anti-Defection Act, exemplified by the Kihoto Hollohan case, fostered a nuanced comprehension of presiding officers’ roles.
  •  It shed light on the concept of judicial review and its application to decisions under the Act, factoring in elements of impartiality and political dimensions.

How have the Courts interpreted the law while deciding on related matters?

Interpretation of Law by the Supreme Court:

  • The Supreme Court (SC) has provided varying interpretations for different aspects of the law.
  • The phrase “Voluntarily gives up his membership” carries a broader implication than mere resignation.

Interpretation of “Voluntarily Gives Up Membership:

  • While the law states that disqualification can occur if a member “voluntarily gives up his membership,” the SC has extended this beyond formal resignation.
  •  The Court’s interpretation suggests that a member’s conduct can imply a relinquishment of membership even without a formal resignation.

Conduct-Based Inferences:

  • In certain cases, members expressing opposition to their party or supporting another party were considered as having effectively resigned.
  •  The SC has observed that such conduct can indicate a voluntary abandonment of membership, leading to disqualification.

Recent Example:

  • In a recent incident, the Chairman of the Upper House of Parliament disqualified two Janata Dal leaders.
  • This disqualification was based on their alleged involvement in anti-party activities and their perceived “voluntary” abandonment of party membership, which differs from formal resignation as defined by SC orders.

What are the Challenges with Anti – Defection Law?

Paragraph 4: Creating Exceptions for Political Mergers:

Paragraph 4 within the Anti-Defection Law introduces significant exceptions, primarily focused on political party mergers. This section encompasses three key concepts:

  • Original Party:Refers to the political party to which a member belongs, encompassing a broader party identity that extends beyond the legislative House.
  • Legislature Party:Comprises all elected members of a House who currently belong to a specific political party.
  • Deemed Merger:However, Paragraph 4 does not clarify whether the term “original political party” pertains to the national or regional level, despite the recognized practices of the Election Commission of India.

Merger Dynamics:

  • Conditions for Merger: A merger is permissible only when the original party merges with another political party. This merger necessitates the agreement of at least two-thirds of the members within the legislature party.

Legal Fiction Aspect:

  • Creating a Legal Fiction: Paragraph 4 appears to introduce a concept akin to a “legal fiction.” It implies that the merger of two-thirds of a legislature party members can be treated as a merger of political parties. This occurs even if the original political party hasn’t officially merged with another party.

Challenges to Democratic Processes:

  •  Impact on Representative Democracy:Post the implementation of the Anti-Defection Law, elected representatives, be it MPs or MLAs, are constrained to follow party directives without exercising their individual judgment in voting.
  •  Accountability Dilemma: The law disrupts the accountability chain by making legislators primarily accountable to their political parties, rather than their constituents.

Role of Speaker in Disqualification Cases:

  • Uncertain Timelines:The law lacks clarity concerning the timeline within which the House Chairperson or Speaker must act in anti-defection cases.
  • Variable Disposition Duration:The disposal duration for cases varies significantly, ranging from six months to even three years, with instances being closed upon term completion.

Absence of ‘Split’ Recognition:

  • Impact of Constitutional Amendment: The 91st Constitutional Amendment Act of 2003 introduced exceptions to anti-defection rulings.
  • Limitation to ‘Merger’:However, this amendment only recognizes ‘merger,’ overlooking the acknowledgment of a ‘split’ within a legislature party.

Wholesale Defection vs. Retail Defection:

  •  Selective Disqualification Allowance: While the law permits wholesale defection, it restricts retail defection. There’s a need for amendments to address these disparities.
  •  Concerns Regarding Political Posts: A notable concern raised is that departing politicians should not be immediately granted posts within their new party.

Impact on Deliberative Democracy:

  •  Impact on Debate and Discussion:The implementation of the Anti-Defection Law has shifted the democratic landscape in India towards one focused on party strength and numerical dynamics, rather than the essence of debate and discussion.
  •  Dissidence vs. Defection: The law lacks the ability to differentiate between dissent and defection, potentially weakening the quality of Parliamentary deliberations on legislative matters.

What Can be Done to Make Anti-Defection Law More Effective?

Rational use of the anti-defection law: 

  • Selective Application:Several experts propose restricting the law’s applicability to pivotal votes determining government stability, such as the passage of the annual budget or no-confidence motions.

Election Commission’s Role:

  • Revised Decision Authority: Recommendations from diverse commissions, including the National Commission to review the working of the constitution (NCRWC), advocate shifting the power to disqualify a member from the Presiding Officer to higher authorities.
  • Presidential and Gubernatorial Involvement: The President (for MPs) or the Governor (for MLAs) could make disqualification decisions based on advice from the Election Commission.

Independent Disqualification Authority:

  • Justice Verma’s Insight: Justice Verma, in the Hollohan judgment, highlighted that the Speaker’s tenure hinges on ongoing majority support in the House. Hence, the Speaker may not meet the requirement for an impartial adjudicatory authority.
  • Conflict of Interest Concerns:The exclusive appointment of the Speaker as the decision-maker challenges a fundamental feature of neutrality.
  • Demand for Autonomy:This underscores the necessity for an unbiased entity to handle defection cases, ensuring fairness in the adjudication process.

Fostering Intra-Party Democracy:

  • Intraparty Democratic Principles:The 170th Law Commission report underscores the significance of internal party democracy. It argues that a party’s inner workings cannot be autocratic while projecting a democratic facade externally.
  • Open Dialogue and Freedom of Expression:Parties should encourage member opinions and discussions, granting individuals the freedom to express themselves. This approach fosters a culture of open dialogue and promotes internal democratic practices.

Supreme Court’s Role in Reassessment:

  • Supreme Court Analysis:A comprehensive reevaluation of the Tenth Schedule by the Supreme Court, offering insights into the future application of the anti-defection law, is not only timely but also essential.
  •  Guidance for Future Application:Such an academic revisiting can provide guidance for utilizing the anti-defection law in a manner that aligns with democratic principles and legislative effectiveness.

Numerous Recommendations for Anti-Defection Reform:

Several noteworthy recommendations have emerged regarding the reform of the Anti-Defection provisions:

Dinesh Goswami Committee’s Suggestions:

  • Selective Disqualification Cases:The Dinesh Goswami Committee has advised that disqualification should be applicable primarily in specific scenarios:
  • A member voluntarily abandoning their party membership.
  •  A member voting or abstaining from voting contrary to party directives.

Law Commission’s 170th Report:

  • Exemption Removal: The 170th Law Commission Report recommends eliminating exemptions in cases of party splits and mergers.
  • Unified Recognition: It proposes treating pre-poll electoral fronts as a single entity under the 10th Schedule.
  • Whip Issuance Control:Parties should employ whip directives only in critical situations or during crucial votes.

Election Commission’s Insights:

  • Decision-Maker Shift: The Election Commission’s suggestion involves transferring the authority to decide disqualifications to the President/Governor.
  • Election Commission Binding Advice:This shift would entail binding advice from the Election Commission, similar to disqualifications guided by the Representation of Peoples Act concerning the Office of Profit.

In conclusion, the regulation of the 10th Schedule, along with appropriately framed operational guidelines that uphold transparency and accountability within a democratic framework, stands as a pressing necessity. Importantly, these provisions should also contribute to enhancing governmental stability, which in turn can curb corruption and redirect the focus of parliamentarians/legislators towards effective governance.

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