ANTI-DEFECTION LAW

INTRODUCTION

In recent times, Defection Laws have been a fundamental issue due to complete violation of the defection rules in the country by the leaders. Lust for power has led many politicians to leave the party on whose ticket he is elected and join the party that gives him power and pelf.

Aaya Ram Gaya Ram (frequent floor-crossing by legislators) was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.

Let’s take into consideration, the crisis of Madhya Pradesh Government in March, 2020, wherein Jyotiraditya Scindia along with 22 Member Legislative Assembly (MLA’s) gave resignation  to the speaker of assembly which in turn, resulted in a huge blow to the congress as they failed the floor test and accordingly BJP, which had the maximum number of seats came into power and thereafter Shivraj Singh Chauhan was elected as the Chief Minister of Madhya Pradesh.

Recently the Deputy Chief Minister of Rajasthan Sachin Pilot and 18 other dissident leaders of the congress party were sent notices on the ground of defection.

This article focuses to give insightful views into the prospects of defection laws.

HISTORY OF ANTI-DEFECTION LAW

The Lok Sabha in 1967 had appointed a Committee on Defections but report was forgotten. After the stunning victory of the Congress in 1984 Rajiv Gandhi consulted the opposition to make a law to curb the evil of defection. As a result the Bill which became the Constitution 52nd Amendment Act was passed without a single vote recorded against it.

The Constitution (52nd Amendment) Act, 1985 amended articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and the State Legislatures and added ‘10th Schedule’ to the Constitution.

ANTI-DEFECTION LAW

Anti-Defection Laws basically provide for the grounds under which a Member Legislative Assembly or a Member Parliament can lose his privileges as an Elected Representative of a party and hence can be disqualified from the party. These grounds are mentioned under the 10th Schedule of the Constitution.

10th Schedule provides that a Member of Parliament or State Legislature belonging to a political party shall be disqualified if he:

  1. Voluntarily gives up the membership of his party.
  2. Votes against his party directive or abstains from voting.
  3. Joins any other political party.

The final authority to decide whether a person has incurred the disqualification on the grounds of defection or not rests with the Chairman or Speaker of the house and his decision in this regard is final according to the Act. Now, by a 1993 Supreme Court judgment, it is clear that decision of Speaker in such cases is open to judicial review. Courts could see if any malafide exists in such decisions or if it violates the rules of natural justice.

EXCEPTIONS

The provisions of Anti-Defection Law were not to apply if:

  1. There is split, i.e., one-third members of the political party leave party and form another party.
  2. There is merger, i.e., two-thirds members of a party decide to merge with another political party.
  3. The Speaker/Deputy Speaker, Chairman/Deputy Chairman of Parliament or State Legislative Assembly resigns membership of his party to become non-partisan.

 

MERITS OF ANTI-DEFECTION LAW

  1. Provides a stable government by making sure that legislators do not change sides.
  2. Ensures that candidates elected with party symbols and on the basis of party manifestos stays loyal to policies of the party.
  3. Enables political parties to prevent its members from voting for the lure of office or money by opposition parties.
  4. It drastically reduces expenditure on irregular elections as well as corruption at the political level.

DEMERITS OF ANTI-DEFECTION LAW

  1. Doesn’t differentiate between defection and dissent.
  2. Curtails the legislator’s right to dissent and freedom of conscience.
  3. By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people.
  4. It clearly puts party bossism on a pedestal and sanctions tyranny of the party in the name of the party discipline.

 

IMPORTANT COURT JUDGEMENTS

  • Kihoto Hollohon vs. Zachilhu and Others, 1993

In this case it was held that the 10th Schedule neither impinges upon the freedom of speech and expression and subvert the democratic rights of the elected members. The 10th Schedule is completely valid and decisions of Speaker of the house were legal and binding but were questionable before the courts.

 

  • Ravi S Naik vs. Union of India,1994

In this case Supreme Court interpreted the phrase ‘voluntarily gives up his membership’ and said that the phrase is not synonymous with ‘resignation’ and have a wider meaning. A person may voluntarily give up his membership of a political party even though he has not submitted his resignation from the membership of the party.

 

 

  • Rajendra Singh vs. Swami Prasad Maurya and Others, 2007

In this case Supreme Court stated that if the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule and held that ignoring a petition for disqualification is not merely a irregularity but  a violation of constitutional duties.

 

  • Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP, 2008

The court held that a speech by a member in  a public meeting that he belongs to another political party by heart, would amount to voluntarily giving up the membership of the former party.

 

CONCLUSION

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 loopholes, it has not been able to achieve the best it can. Politicians found loopholes in this la and have been utilising it for their own benefit. The following changes in the law might help it to develop with best possible extent:

The Anti-Defection laws should incorporate law under which separate committees should be constituted for investigating into the cases of horse trading between the parties and where members of these parties are found guilty, punitive sanctions be imposed on them. An embargo should be imposed on them from contesting elections, so that these elements do not disrupt the active democracy of the country.

It is the high time that a watchdog should be created in our Parliament and our constitutional pundits need to revisit this issue in order to counter the menace of corruption and defection which has worn away the values of democracy.

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