Sometimes, a member of Parliament (MP) or a member of legislative assembly (MLA) deserts one political party and joins another political party in order to obtain some personal gains, which could be wads of notes or more political power. This is known as political defection. It involves the violation of the trust that has been placed in the defector by the people of his constituency. In the case of political defection, the government cannot keep its focus on the administration of the country. Instead, its main objective becomes to keep its MLAs/MPs together so that they do not join another political party. This results in political instability and degrades the foundations of our democracy.
History Says…
Political defection has been a part of our political system since 1951 when the first general elections were held. At that time, several other political parties came up apart from the Congress. Around 542 MLAs changed their political parties for more money and power, from the first general elections to the fourth general elections. However, it was in 1967 when the defection case of Gaya Lal garnered the attention of political leaders. During the first general elections of the newly-formed Haryana in 1967, the Indian National Congress (INC) won by a thin majority of 48 seats out of 81. Gaya Lal was an independent MLA who after winning the election first joined the Congress and then resigned from the party on the same day. After 15 days, he joined another party, the United Front. Then counter defecting, he again joined the INC, but within nine hours, he again defected from the INC and joined the Popular Front. Thus, he exchanged his loyalties between different parties three times within a fortnight. Thenceforth, the phrase ‘Aaya Ram, Gaya Ram’ was coined and began to be used to refer to political defection.
In the following years too, many other defection cases came up. Thus, the need of introducing anti-defection law was felt in order to bring political stability and put an end to political immorality.
What is Anti-Defection Law?
In 1985, under the leadership of the then Prime Minister of India, Rajiv Gandhi, the Anti-Defection Law was passed by Parliament via the 52nd Constitutional Amendment Act. Consequently, the Tenth Schedule, which is the Anti-Defection Law, was added to the Constitution of India. Its main objective was to bring stability to the political system of India by prohibiting MPs and MLAs from changing political parties for their selfish interests. The law provides that legislators, whether in Parliament or the state assemblies, may get disqualified on the grounds of defection. The law was formally enforced on March 01, 1985 and then in 2002.
Provisions of the Anti-Defection Law
- According to the Anti-Defection Law, a member of a House (Lok Sabha/Rajya Sabha/ Legislative Assembly/ Legislative Council) belonging to a political party shall be disqualified on the following grounds of defection:
- If he gives up his membership of such a political party willingly, despite not submitting his resignation letter formally. That is, even without resigning formally, if it can be easily interpreted that the member has voluntarily given up his membership of the political party simply by examining his conduct outside the House, he can be disqualified under the Anti-Defection Law.
- If he breaches the whip issued by his political party. That is, if he casts his vote or refrains from casting his vote in the House, which is in contradiction to any direction issued by his political party, he shall be disqualified. However, if he takes prior permission from the authorised person in his party or his violation has been accepted by his party within 15 days of such incident, he shall not be disqualified.
- If an independent member of a House who does not belong to any political party joins a political party after the election, he shall be disqualified under the Anti-Defection Law.
- If a nominated member of a House joins a political party after six months from the date of his nomination, he shall be disqualified under the Anti-Defection Law. However, he can join a political party within a period of six months from his nomination and would not be disqualified.
Who can Disqualify a Legislator under the Anti-Defection Law?
The Speaker of the House, i.e., the presiding officer of the Lok Sabha/ Rajya Sabha/ Legislative Assembly/ Legislative Council, has the power to disqualify a legislator on the grounds of defection. But the decision of the speaker is subject to judicial review in case of perversity or mala fides.
Exemptions to the Anti-Defection Law
There are certain exemptions to the Anti-Defection Law, under which the legislators are permitted to change their party without getting disqualified:
- When a political party merges with or into another political party with the consent of at least two-thirds of its legislators, the members who merge with another party or stay with the original party would not be disqualified. Even the members who refuse to merge and wish to work as a separate group shall not be disqualified under the Tenth Schedule of the Indian Constitution.
- A person elected as the Speaker/Deputy Speaker of the Lok Sabha, or the Chairman/Deputy Chairman of the Rajya Sabha, or the Chairman/Deputy Chairman of the Legislative Council, or the Speaker/Deputy Speaker of the Legislative Assembly shall not be disqualified under the Anti-Defection Law on the following grounds:
- If he resigns from his political party after the election or does not rejoin that party or any other political party until he holds such constitutional office.
- If he rejoins the political party to which he belonged earlier after he resigns from the constitutional office. However, if such a legislator joins another political party after he stops holding the constitutional office, he shall be disqualified under the Tenth Schedule of the Indian Constitution.
- The political parties were earlier permitted to split, however now, this has been banned.
SC Recommendations Related to the Anti-Defection Law
1. The Anti-Defection Law does not state any fixed duration during which the process of disqualification of the defecting members should be completed by the speaker. If a legislator resigns from his political party, it is the responsibility of the speaker of the House to disqualify him. But if the speaker is a member of the ruling party and the defecting member supports the ruling party, the speaker does not act; instead, he postpones the process of disqualification. However, if the defecting member is against the ruling party, the speaker immediately disqualifies him. Thus, the speaker becomes biased in his decision. For example, in Manipur, Okram Henry, a member of the Manipur Legislative Assembly, entered with the ticket of the Congress, but later he was elected as the BJP cabinet minister. The speaker delayed the disqualification process for three years. At last, the Supreme Court had to intervene to disqualify the MLA.
Suggested reform The Supreme Court recommended that speakers should take the decision for the disqualification of the defecting members within three months. However, if a speaker fails to do so, there is no law. So, a law should be framed to deal with it.
2. It is uncertain if the speaker is a political entity or a constitutional figure. For example, a member of the Manipur Legislative Council, T. Shyam Kumar, who belonged to the Congress joined the BJP. However, he was not disqualified by the speaker. Besides, he was elected as the forest minister in Manipur. The speaker did not take any action against him despite the petition being filed against him. He acted in a partisan manner to support the ruling party. So, the case was taken to the Supreme Court. In response to this, one of the judges of the Supreme Court invoked Article 142 of the Indian Constitution, a special power, which states that in order to render full justice, the Supreme Court can issue any order. The Supreme Court then ruled that the ministership of T. Shyam Kumar should be taken away, and he could not enter the legislative assembly. Eventually, the speaker had to give in, and he disqualified the defecting member.
The Supreme Court then said that it was the need of the hour that Parliament should reconsider if the speaker, who belonged to a particular political party, should be given a quasi-judicial authority to take a decision on the disqualification of defecting members under the Anti-Defection Law.
Suggested reform The power of disqualifying a defecting member under the Tenth Schedule of the Indian Constitution should be given to the president or the governor who would take the decision on the basis of the report submitted by the Election Commission of India (ECI). The decision of the ECI must be complied with by the president/governor, as the case may be.
3. When a political party forms a government, the governor asks the party to prove its majority by passing a confidence motion in the legislative assembly. If the majority passes this confidence motion, the party can form the government; or else they have to resign. But sometimes, both the government and the opposition don’t have the majority. In that case, the legislative assembly is dissolved and the elections are forced on the people, which is very expensive.
Suggested reform Experts have suggested that instead of dissolving the legislative assembly, a minority government should continue to run the country. The governor should ask the opposition to pass a no-confidence motion by a simple majority to dissolve the government along with passing a confidence motion to prove that they have the majority to form the government. This will prevent the government from forcing elections every now and then.
4. In case of a two-third merger, first a political party should decide to merge with another political party and then, two-thirds of its legislators should give their consent for the merger. These legislators shall not be disqualified under the Anti-Defection Act. But in reality, the parties are not merging. But only two-thirds of its legislators are merging with another political party to form a new party in the lure of money and power. This is corruption. For example, there was a political party in Goa that had three MLAs. Two-thirds, i.e., two of them decided to merge with the BJP. But the party as a whole did not decide to merge with the BJP. This is political immorality. The legislators decided to merge with another party only to earn extra income and more power. Unfortunately, this is allowed by the court as the Anti-Defection Law does not apply here.
Suggested reform The clause of the two-thirds merger should be eradicated from the Tenth Schedule of the Indian Constitution.
5. Due to the Anti-Defection Law, representative democracy is undermined, as the MPs/MLAs have no say in any legislative matter and have to agree with the Party line blindly. They cannot analyse and give their judgment on policies, budgets or bills. This devalues the legislatures. Besides, if the MPs/MLAs disagree with their party, they might be deprived of their seats in the legislature.
Suggested reform If a legislator differs in his opinion with respect to a party’s policy or bill, he can resign and contest the election with a ticket from another party.
In the case of Balchandra L. Jarkiholi & Ors vs B.S. Yeddyyurappa & Ors (2011), it was firmly specified that if there is any internal rift among the members of a political party, it is not considered to be a ground for defection.
6. Due to the implementation of the Anti-Defection Law, parliamentary democracy is also threatened as the legislators are now accountable mainly to their respective political parties instead of being accountable to the people who elected them.
Suggested reform Political parties should work towards developing democracy within their party as well as facilitating communication and growth opportunities for their members.
Conclusion
The Anti-Defection Law, being weak, poses a risk to the effective functioning of the Indian political system. It should be strengthened by certain modifications so that political stability can be brought about in the country.
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