Anti-Defection Law: Time to Re-Consider

Relevance: mains: G.S paper II: Polity

What is anti-defection law?

The Tenth Schedule of Indian Constitution is popularly known as the Anti-Defection Act. Original constitution had no such provisions. It was included in the Constitution in 1985 by the Rajiv Gandhi government. The main intent of the law was to deter “the evil of political defections” by legislators motivated by the lure of office or other similar considerations.

What are the grounds for disqualification under the Anti-Defection Law?

• a) If an elected member voluntarily gives up his membership of a political party;
• b) If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorised to do so, without obtaining prior permission.

As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorised person within 15 days of such incident.

Points to be noted regarding anti-defection

• Articles 102 (2) and 191 (2) deals with anti-defection.
• The intention of the provision is to check the corruption/horse trading in parliament/ to check the popular phenomenon “Aaya Ram Gaya Ram “ in the Indian polity which started in 1960’s . Note: The intention was never “to bring stability” to governments.
• The law disallows MPs/ MLAs to switch parties after elections, make the members follow the whips issued by their party.
• It also applies to a nominated member if he/ she joins a political party after 6 months of nomination and to an independent candidate if he/she joins a party after the election.
• Refer the parliament handbook if you need to know the detailed provisions of anti-defection.

Are there any exceptions under the law?

Yes, legislators may change their party without the risk of disqualification in certain circumstances. The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

Various expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.

This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries a remuneration, and has not been excluded in a list made by the legislature).

How has the law been interpreted by the Courts while deciding on related matters?

The Supreme Court has interpreted different provisions of the law.

Some of them are discussed below:

The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation

The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the Supreme Court 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.

In the case of the two JD(U) MPs who were disqualified from Rajya Sabha on Monday, they were deemed to have ‘voluntarily given up their membership’ by engaging in anti-party activities which included criticizing the party on public forums on multiple occasions, and attending rallies organised by opposition parties in Bihar.

Decision of the Presiding Officer is subject to judicial review

The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.[8] However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.

In 2015, the Hyderabad High Court, refused to intervene after hearing a petition which alleged that there had been delay by the Telangana Assembly Speaker in acting against a member under the anti-defection law.

 Is there a time limit within which the Presiding Officer has to decide?

The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea. Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.

In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House. There have also been instances where opposition members have been appointed ministers in the government while still retaining the membership of their original parties in the legislature.

In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken away in small groups gradually to join the ruling party. In some of these cases, more than 2/3rd of the opposition has defected to the ruling party.

In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller groups.  However, it is not clear if they will still face disqualification if the Presiding Officer makes a decision after more than 2/3rd of the opposition has defected to the ruling party. The Telangana Speaker in March 2016 allowed the merger of the TDP Legislature Party in Telangana with the ruling TRS, citing that in total, 80% of the TDP MLAs (12 out of 15) had joined the TRS at the time of taking the decision.

In Andhra Pradesh, legislators of the main opposition party recently boycotted the entire 12-day assembly session.

This boycott was in protest against the delay of over 18 months in action being taken against legislators of their party who have allegedly defected to the ruling party.

The Vice President, in his recent order disqualifying two JD(U) members stated that all such petitions should be decided by the Presiding Officers within a period of around three months.

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 (passage of the annual budget or no-confidence motions).