Introduction:

Tenth Schedule of the Constitution is better known as the anti-defection law. Allegations of legislators defecting in violation of the law have been made in several states including Karnataka, Andhra Pradesh, Arunachal Pradesh, Goa, Manipur, Nagaland, Telangana and Uttarakhand in recent years.

The year 1967 was a different ball game in the life of a certain Gaya Lal. It was the year in which he changed his political parties twice. And these changes all occurred in one day. He changed his party thrice over the period of one fortnight. These defections helped him stay on the side of power in a nascent Haryana government, which was less than a year old. But this ‘Aaya Ram Gaya Ram’ business – an adage termed to popularise turncoat behaviour taken by politicians like Lal to stay in power came to a halt with the advent of what is called the popular anti-defection law that came into being in 1985 to promote party loyalty and curb such switching.

The main intent of the law was to combat “the evil of political defections”. However over the years there have been criticisms over the disqualifications and several issues in relation to the working of this law which need to be discussed.

 What is the anti-defection law?

• The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Constitutional Amendment Act.
• It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
• The decision on question as to disqualification on ground of defection is referred to the Chairman or the Speaker of such House, and his decision is final.
• The law applies to both Parliament and state assemblies.

Features of anti defection law :

• Disqualification
  • If a member of a house belonging to a political party:
    • Voluntarily gives up the membership of his political party, or
    • Votes, or does not vote in the legislature, contrary to the directions of his political party.  However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
    • If an independent candidate joins a political party after the election. 
    • If a nominated member joins a party six months after he becomes a member of the legislature.
  • Power to Disqualify
    • The Chairman or the Speaker of the House takes the decision to disqualify a member.
    • If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the  House elected by that House shall take the decision.
  • Exceptions
    • A person shall not be disqualified if his original political party merges with another, and:
      • He and other members of the old political party become members of the new political party, or
      • He and other members do not accept the merger and opt to function as a separate group.
    • This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.

 Judiciary on anti defection law:-

• The Tenth Schedule says the Speaker’s/Chairperson’s decision on questions of disqualification on ground of defection shall be final and can’t be questioned in courts. In Kihoto Hollohan vs Zachillhu and Others (1991), an SC Constitution Bench declared that the Speaker’s decision was subject to judicial review.
• In 1996 – Once a member is expelled, he is treated as an ‘unattached’ member in the house. However, he continues to be a member of the old party as per the Tenth Schedule. So if he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party.
• The Speaker of a House does not have the power to review his own decisions to disqualify a candidate. Such power is not provided for under the Schedule, and is not implicit in the provisions either.
• 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. The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties.

 Committee interpretations on anti defection law:-

• Following demands that disqualification should not be decided by speakers as they failed to be impartial, the Dinesh Goswami Committee and the Constitution Review Commission headed by Justice MN Venkatachaliah (2002) had recommended such a decision be made by the President or the Governor on the Election Commission’s advice, as in the case of disqualification on grounds of office of profit. 
• Dinesh Goswami Committee on electoral reforms (1990)
  • Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.  . 
• Law Commission (170th Report, 1999)
  • Pre-poll 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.

 Advantages of anti-defection law:

• Provides stability to the government by preventing shifts of party allegiance.
• Ensures that candidates remain loyal to the party as well the citizens voting for him.
• Promotes party discipline.
• Facilitates merger of political parties without attracting the provisions of Anti-defection.
• Expected to reduce corruption at the political level.
• More concentration on governance is possible.
• Provides for punitive measures against a member who defects from one party to another.

 Challenges posed by anti defection law:

• The law doesn’t touch on the time period for the speaker to decide on disqualification.
• The anti-defection law raises a number of questions, several of which have been addressed by the courts and the presiding officers.
• Resignation v/s Disqualification as seen in Karnataka politics in 2019.
• The law impinges on the right of free speech of the legislators:
  • This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). The court said that “the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct…above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.
• Doubts regarding “voluntarily” resigning from a party:
  • According to a Supreme Court judgment, “voluntarily giving up the membership of the party” is not synonymous with “resignation”.
  • It has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.
  • In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.
• Regarding Whips:
  • Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue.
  • It restricts a legislator from voting in line with his conscience, judgement and interests of his 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.
• Challenging the decision of the presiding officer in the courts:
  • The law states that the decision is final and not subject to judicial review. There are several instances that presiding officers take politically partisan view.
  • The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.

Why the Speaker should not have the final word?

• The Speaker has been assigned the role of an impartial arbiter. But the conduct of speakers has left much to be desired.
• A lawmaker elected as Speaker/Chairman is allowed to resign from his/her party, and rejoin it if he/she demits office. But speakers have invariably allowed themselves to be used for gain of their party or leader.
• There have been many instances which show there is a need for more clarity:-
  • The Uttarakhand Assembly Speaker disqualified nine MLAs from the ruling party in 2016, despite the MLAs not leaving the Congress or voting against it in the Assembly. Furthermore, while the MLAs had voiced dissenting notes against the Budget, the Budget itself was declared passed without voting by the Speaker.
  • Such instances highlight the need for greater clarity in the interpretations associated with the Anti-Defection Law. Perhaps, it might be better for such critical decisions, associated with representative disqualification, to be determined by the President instead, with inputs from the Election Commission.

Does the anti-defection law affect the ability of legislators to make decisions?

The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgement and interests of his 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.

Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue. Several experts have suggested that the law should be valid only for those votes that determine the stability of the government.

Way Forward:

• Need to have time limit to the speaker to dispose of the anti defection violations.
• Final decision on disqualification should be taken by President or Governor because too much importance has been given to speaker as far as anti defection law is concerned.
• Special courts to speed up the cases of corruption against legislators.
• More stringent and effective law is the need of the hour and everyone should be bound by it and rules should be open for comments from all section concerned.
• Tribunal needs to be created for dealing with cases like this.
• Proper division of power should be put in place between Legislature, executive and judiciary.
• Disqualification procedure should continue even after resignation.

Conclusion:-

The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. The law certainly has been able to curb the evil of defection to a great extent. But, of late, a very alarming trend of legislators defecting in groups to another party in search of greener pastures is visible. The recent examples of defection in state Assemblies and even in Rajya Sabha bear this out. This only shows that the law needs a relook in order to plug the loopholes if any. But it must be said that this law has served the interest of the society. Political instability caused by frequent and unholy change of allegiance on the part of the legislators of our country has been contained to a very great extent. The true objective of the law to enhance the credibility of the country’s polity by addressing rampant party-hopping by elected representatives should be pursued rather than using it as a political tool to pursue narrow interests of party. Only then will the true purpose of the law be accomplished.