Recently, the Shiv Sena party’s ministers had set up a camp in Guwahati with BJP intending to form a new alliance and annex the State’s government. Finally, on 3rd June 2022, the member’s new alliance with BJP (Bhartiya Janata Party) won a vote of confidence in the state assembly. It is not the first time that a political party has suffered defection. States like Madhya Pradesh, Goa, and Karnataka have also defected similarly. Why do members abandon their party?
In this article, we will discuss what Anti-defection law is, what is Tenth Schedule, the exception to Anti-defection law, the grounds for disqualification of members or defection, how the defection affects the political system, what is the power of the presiding officer for disqualification, what is the time limit to file a plea for anti- defection, is the decision of the presiding officer subject to judicial review and what are the challenges with anti-defection law.
What is meant by Anti-Defection law?
Anti-defection law was enacted to prevent any political defection or severance made by getting attracted towards any office, material benefits, or other considerations. The Parliament passed the Anti-defection law in 1985, which was reinforced in 2002.
In simple words, ‘defection’ means to abandon or leave a party, association, or position and join another group, specifically the opposition party.
The anti-defection law was enacted to ensure that the members of the party do not violate the party’s mandate. In the event of a violation, the member loses their membership. The anti-defection law applies to the Parliament and State Assemblies. The rule also applies to independent members of the legislative assembly. They are not allowed to join any political party or hold any ministerial position at a later stage. If they fail to do so, they will lose their legislature membership. It aims to prevent Parliament members from switching parties for any personal reason.
The anti-defection law does not apply if the number of members leaving the political party is two-thirds of the total members of the political party in the legislature. Hence, these members of the legislative assembly can create a separate group or merge with another party in the legislature.
In 2021, 12 of 17 Congress MLAs in Meghalaya joined the All India Trinamool Congress.
In 2019, 6 Bahujan Samaj Party MLAs in Rajasthan joined the Congress.
In 2019, 4 out of 6 Rajya Sabha MPs of the Telugu Desam joined the BJP.
The Tenth Schedule of the Indian Constitution, popularly known as the Anti-Defection Law, provides the grounds for disqualifying members of Parliament (MPs) and members of legislative assemblies (MLAs) under the anti-defection law. It was included by the 52nd Amendment Act of 1985. The tenth Schedule was enacted in response to the party-hopping members of legislative assemblies after the general elections of 1967. The Schedule allows the political party to leave the party and join/merge with another party without any penalty for defection. The political party that encourages or accepts the defecting legislators is also not penalized.
Earlier in 1985, any defection by one-third of the elected members of a political party was considered a valid ‘merger.’ However, the 91st Amendment Act of 2003 has changed the ratio to two-thirds of the elected members.
The disqualified members can stand for election from any political party for a seat in the same House.
What are the grounds for disqualification or defection?
Following are the grounds for disqualification of members or defection:
1. An elected member voluntarily gives up their membership of the party.
2. If the member votes or abstains from voting in the House against the party’s direction.
3. If an independently elected member joins another party.
4. If any nominated member joins another party after the termination of 6 months.
5. The question on disqualification of members is referred to the Chairman or Speaker of the House. The decision of the Speaker or Chairman of the House is final.
6. All disqualification proceeding under the Tenth Schedule is considered as proceedings of the Parliament or the Legislature of a state, as the case may be.
Exceptions under the anti-defection law
Having looked into the grounds for disqualification of members, let us now understand the exceptions to Anti-defection law. Following are the exceptions under the anti-defection law:
- If two-thirds of the legislators of a political party choose to merge with another party, then in such a situation, neither the member who leaves the party nor the member who stays with the party will be liable for any disqualification.
- Any person elected as a speaker or chairman can resign from their party and re-join the party if they demit (resign) that post.
- The party was allowed to split earlier; however, the Amendment outlawed this.
What is 91st Amendment?
The 91st Constitutional Amendment Act was enacted in Parliament in the year 2003. This Amendment had deleted the provision regarding protection granted to the legislators in case of a split in the party as per the Tenth Schedule. It also provided that any member disqualified under the Tenth Schedule will automatically be disqualified from any ministerial position (Centre or State level). The 91st Amendment was enacted to strengthen the Anti-defection law.
Who is the deciding authority for disqualification?
The Presiding Officer (Speaker or Chairman) of the House of Parliament has the authority to decide for disqualification of a member.
Is the decision of the Presiding officer subject to judicial review?
The decision of the Presiding Officer is final, binding, and cannot be challenged in any court of law. However, this provision is declared unconstitutional in Kihoto Hollohan Vs. Zachillhu and others, 1992 as it takes away the power of the Supreme Court and the High Court.
In this case, the court had held that the presiding officer or Speaker functions as a tribunal while deciding any question under the Tenth Schedule. Therefore, its decision is subject to judicial review based on perversity, mala fides, etc. however, the court held that due to political bias, the vesting of adjudicatory power of the presiding officer is invalid.
It has also held that any judicial intervention can be done only after the Presiding Officer passes their order.
What is the time limit for deciding the plea for disqualification?
There is no time limit for the Presiding officer to decide the plea for disqualification.
How does defection affect the political system?
- Defection weakens the electoral mandates where the legislators of one party shift to another party on the lure of financial gains or ministerial positions.
- It affects the normal administration of the government and creates instability.
- It promotes horse-trading of legislators, which is against the democratic system.
What are the challenges with Anti-Defection law?
1. Paragraph 4 of the Tenth Schedule provides for the exception for mergers between political parties in three categories:
i. Original party – members belong originally to the political party (outside the House). The original political party can be at the national or regional level.
ii. Legislature Party – elected members of a House which belongs to one party.
iii. Deemed merger – merger occurs when the original political party merges with another political party with at least two-thirds of the member of the legislature party. However, for a deemed merger, there is no need for an actual merger to take place only the creation of ‘legal fiction’ can indicate a merger.
2. Undermining Representative and Parliamentary Democracy
The MLAs and MPs have no freedom to vote at their discretion; they must follow the party’s direction blindly.
The legislators are accountable to the political party only.
3. Role of Speaker
The Speaker or chairman is the presiding officer of the House of Parliament. The Speaker or Chairman of the House has no time limit to pass the decision about the disqualification of a member. However, it can take six months to three years to decide.
4. No recognition of Split
The 91st Amendment Act, 2003 does not recognize the ‘split’ of the political party as an exception to the anti-defection law. Instead, it recognizes the ‘merger’ of a political party.
5. Affects the debate and discussion
The anti-defection law is against creating any disagreement and defection between the parties that weaken the Parliamentary deliberation. It has not made a democracy of debate and discussion but a democracy of numbers and parties.
6. New post
The members leaving the party and joining another party will not be given any new or ministerial post in the newly merged party.
How does the anti-defection law affect the legislator’s ability to make decisions?
The anti-defection law aims at maintaining a stable government. It ensures that the legislatures do not change sides. Moreover, anti-defection law also restricts the legislators from voting based on their judgment, conscience, and the electorate’s interest.
It also obstructs the default function of the legislator over the government by ensuring that the members vote according to the decision of the party leadership and not based on their constituents.
The parties also issue directions to their members of Parliament so that they can vote on specific issues irrespective of their nature.
The members of Parliament and legislative assemblies are not given any incentive under the anti-defection law to examine the issue in-depth and thoughtfully participate in the debate.
It breaks the connection between the elected legislators and electors.
Recommendation on Anti-defection law
Many committees have come up with recommendations for Anti-defection law. Let us have a look at them:
Dinesh Goswami Committee
Dinesh Goswami Committee has recommended that disqualification of members should only be for certain situations, namely;
· Where the members leave the membership voluntarily;
· Where the members vote or abstain from voting against the party’s directions.
Law Commission 170th Report
Law Commission 170th Report recommended the following:
· To delete the exception in the case of mergers and splits.
· To consider the pre-poll electoral party as one party under the Tenth Schedule.
· The parties should lash out only in critical situations or votes.
The election commission recommended that the President or the Governor be made a decision maker for disqualification of members based on the Election Commission’s advice on disqualification of members provided under the Representation of People’s Act with regard to Office of Profit.
Anti-defection law cases
Keisham Meghachandra Singh Vs. The Hon’ble Speaker Manipur, 2020
In this case, there was an inclusive result in the Assembly election as none of the political parties could secure a majority of seats in a Legislative Assembly (i.e., 31 out of 60 seats) to form a Government. Congress Party had secured 28 seats, and BJP had secured 21 seats. So, Respondent No. 3, the candidate of the Congress Party, was elected as a Minister. Immediately after the result was declared, Respondent No.3, along with other BJP members, applied to the Governor to form a BJP-led Government. Later, Respondent No. 3 had sworn in as the Minister in the BJP-led government. Hence, the Appellant had made an application for disqualification was made before the Speaker of the Manipur Legislative Assembly. As the Speaker did not take any action, a Writ Petition was filed before the High Court to direct the Supreme Court to pass an order within a reasonable time.
Justice Nariman Rohinton had recommended setting up an external mechanism for defection matters so that the disputes are resolved impartially and swiftly. The Supreme Court had further suggested that the Parliament consider substituting the Speaker of the Lok Sabha and legislative assembly with the retired Supreme Court judge or retired Chief Justice of a High Court or any independent mechanism for resolving any disputes about disqualification. This will ensure that the provision of the Tenth Schedule is implemented. Henceforth, the Supreme Court directed the Speaker of the Manipur Legislative Assembly to decide the pending disqualification matter within four weeks from this judgment’s date. Suppose the Speaker fails to pass any order. In that case, the party to the proceeding may apply to the Supreme Court for further relief or directions.
Anti-defection law was introduced by the Constitution by the 52nd Amendment Act, under the Tenth Schedule. The Anti -defection law was enacted to curb political defection. Defection means consciously abandoning the allegiance, where a political party leaves the original party and joins another party to form a new coalition. The Speaker of the House has the power to decide on the disqualification proceedings. The decision of the Speaker is subject to judicial review. The disqualification proceedings are initiated against the legislators who abandon the party. However, in case of a split or merger with another political party, the legislators are protected from disqualification.