Anti Defection Law – Issues, Examples and Supreme Court’s View

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Introduction

Rough weather in politics has raised concerns between the legislature and the judiciary. In recent times defection law has been used many times. It is not so that the defection is the new concept in India. Since India’s Independence, various cases of defection have come up. Political instability in Madhya Pradesh, Maharashtra, Rajasthan, Karnataka, Manipur has raised various serious concern which have drawn our attention to the political instability which could threaten our democracy. Instances of ‘Horse trading’ of legislators could also be seen. A stable government is must for the crucial functioning of any country. The recent developments have questioned the balancing between the freedom of legislators and the principles of law. This article has looked after the provisions of the Anti-Defection law, current issues with it and Supreme Court’s stand over it.

Background

When it comes to anti-defection law we could remember a popular phrase, “ Aaya Ram Gaya Ram” where Gaya Lal, Haryana MLA changed his party thrice in a fortnight. Initially, he was a congress leader and went from congress to Janata Party and then back to congress and within nine hours again to Janata Party.

In the journal, “Aya Ram Gaya Ram- The politics of defection” by the Indian Law Institute, it was stated that the period of 1967 to 1969 witnessed 1562 party defections and 313 independent candidate defections in various states of the country.

These defection cases forced the government to take serious action against the defectors. And so, Rajiv Gandhi proposed the Anti Defection bill and it came into effect on 18 March 1985 with the motive of combating “The evil of political defection”

Anti Defection Law

Anti-Defection law or the 10th schedule was inserted  by the 52nd amendment to the constitution in 1985. 10th schedule has the following provision

Disqualification on the grounds of

A]  If a member of a house belonging to a political party

1]  Voluntarily gives up membership of his political party.

2]  Votes or abstains from voting  in house contrary to any directions issued by his political party. However, the member will not be disqualified if he has taken prior permission of his party or had not been condoned by his party within 15 days

B]  If an jndependent candidate has joined the party after an election.

C]  If a nominated member joins political party 6 months after he becomes the member of the legislature after complying with the requirements of article 99 or, as the case may be, article 188

Power to disqualify

1]  A member of a house has become subject to disqualification, the question shall be referred to the chairman or to the speaker.

2]  If the speaker or the chairman has become subject to disqualification, the decision shall rest to the member of the house elected by that house.

Exception

 A member of a house will not be disqualified if

1]  His original political party merges with another political party                                                                                                  2] He and the other members(two-third members) of his original party left and joined a new party
3]  Have not opted the merger and opted to function as a separate group.

The merger is possible only if not less than two-third members of the legislature party concerned have agreed to. Through the 91st amendment, the provision of  split was removed and the requirement of one-third was shifted to two-third. This need was felt as there were mass defection by legislators as initially  the requirement for split or merger was one-third, so legislators were easily splitting up from their parties.

Supreme Court’s stand

1]  Supreme Court in Ravi S Naik vs Union of India (1994) observed that ‘resignation by voluntarily giving up membership’ has a wider prospect. The court observed that a member has voluntarily given his membership from his party even if he has not resigned formally. Through the conduct of the member the inference regarding his giving up of membership can be drawn.

2]   Initially, there was no provision of judicial intervention in the disqualification of member. But in 1992 in Kihoto Hollohan vs  Zachillu And Others, Supreme Court declared that the court would not interfere until the presiding officer gives his order but the order is subject to judicial review.

3]  Also, there is no provision mentioned in Anti Defection law regarding disposing of disqualification petition by the speaker in a limited time frame. It came to the notice that in some cases speakers allowed defectors to be sworn in as Minster by not adjudicating complaints against them and were taking a long time in deciding defection question. In 2016 in S.A. Sampath Kumar vs. Kale Yadaiah And Others, the question raised was whether courts can direct the speaker to decide the petition seeking disqualification within a fixed time. The question is to be determined by the constitutional bench.

Also Read:  Supreme Court's Silence on Migrant Exodus

However, in January 2020 SC  directed the speaker to take the decision within 3 months except in extraordinary circumstances.

Issues with Anti Defection Law

1]  Anti-defection law could be seen as violative of Article 19(1)(a)as the law prohibits going against the direction given by legislators party.  A legislator is restricted from exercising his free will. Let’s say if ‘B’ is a Member of Parliament who contested from the opposition party and while debating a policy measure on labor crisis, the rival party suggested an effective measure to overcome the crisis, B spoke in the support of the rival party whereas, his party spoke against the measure.

Here, even though the measure suggested by the rival party was practical and effective, B could not support them as his party has abstained the member from supporting the rival. And so, B becomes subject to the 10th schedule.

2]  The law states that the complaint of defection would be considered only when any member of the house complains about it to the speaker. And if the complaint is not raised against the defector, he would continue to hold his office and no action would be taken against his defection.

3]  The other issue to the speaker is whether to consider disqualification question first as a result of which resignation would be redundant or to consider resignation first as a result of which disqualification would be redundant.

4]  Usually presiding officer is the nominee of the ruling party and so the issue of partisanship arises. To tackle this issue Supreme Court has asked to form a tribunal wherein the question of disqualification of legislators would be considered.

 Political Instability

Madhya Pradesh political crisis

March 2020 witnessed a political crisis in Madhya Pradesh also known as the 2020 Madhya Pradesh government formation. In 2019 legislative election Congress was back in power with the support of BSP MLA, SP MLA and, four independents, and Kamal Nath was sworn in as Chief Minister. The political turmoil started in March 2020 when Jyotiraditya Scindia, a senior member of Congress resigned the Congress and joined Bhartiya Janata Party citing disgruntlement with Congress. Following him, around 22 MLAs supporting him resigned as well. Later this MLAs too joined BJP. The question of floor test arose in Madhya Pradesh. Ahead of the floor test Kamal Nath tendered his resignation. Shivraj Singh Chouhan was sworn in as Chief Minister. After joining BJP Scindia was given the ticket of Rajya Sabha from  Madhya Pradesh by Shivraj Singh Chouhan. The by-election was to be held and those MLAs were going to contest election as a BJP candidate. Few of them won as BJP candidate. This caused political instability to a large extent in Madhya Pradesh. Defectors were successful in changing the complete scene of politics.

Swapan Dasgupta’s Disqualification

Swapan Dasgupta, journalist and politician was a nominated member of Rajya Sabha. He was sworn in April 2016 and his term would have lasted till April 2020. But a year prior to completion of his term Dasgupta was going to contest election for the assembly polls in Bengal from Tarakeshwar constituency as a BJP candidate. A person ceased to be Member of Parliament once he files his nomination. Reacting to this Trinamool Congress was planning to submit a petition to Rajya Sabha Chairman for Dasgupta’s disqualification, before which Dasgupta resigned.

Nominated members are the eminent personalities from different fields, representing the interests of their respective field. If they start joining party they would automatically favor their party. And so, the relevance of their nomination would lose.

onclusion

Citing the few examples above we could understand that defection can cause political instability to a large extent. By hook or crook, political parties tend to remain in power. But sometimes, the way in which parties work without following principles may disturb political stability. Anti Defection law needs to be amended to plug the loopholes. To avoid biasedness, presiding officer should be asked to resign from his party before holding the post of speaker/chairman. Legislators should not be allowed to contest election if found guilty of defection or horse-trading. Crisis in the government can lead to distrust among people, hence it should be ensured that democratic principles are running smoothly.

Image from here

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