Neccesity to Evolve Anti-Defection Law in India

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The Anti-defection law in India, also known as the Tenth Schedule to the Indian Constitution, was enacted to address the problem of instability caused by democratically elected legislators in India’s federal system of government by way of shifting their allegiance from the parties they supported at the time of election or disobeying their parties decisions at the critical time of election or disobeying their parties decisions at critical time, such as voting on an important resolution. Such shifting of allegiance was considered to be a symptom of endemic political corruption. With the span of time the lawmakers did realized that there is a necessity of certain laws to restrict these types of political corruption and destabilize the democratically elected legislators in India. The parliamentarian then came up with the law known as Anti-Defection law which was enshrined by introducing the 10th schedule in the Constitution. But there is a Necessity to evolve these laws as there is certain loopholes in the present law which are at times used by various elected member to prevent themselves from being getting disqualified. In this article we will discuss the present statutory regime under following heads.

  1. Need of Anti-Defection Law in India
  2. Describing the Merger Clause
  3. Judiciary stands on anti-defection

Need for Anti-Defection Law in India

The anti-defection provisions in India were first introduced in 1985 through the 52nd Amendment to the constitution when the Rajiv Gandhi-led Congress government was in power. The legislation was brought in with the view that if the evil of political defection was not combated, it is likely to undermine our democracy and the very principles that sustains it. It provided that if the member of the legislature voluntarily gives up the membership of her party, he/she will be disqualified from becoming a member of that house until he/she is re-elected afresh. However, when even this provision in the law did not stop large scale defections, another amendment provided that a member so disqualified could not become a minister unless first re-elected, thus at least preventing defection for the sole purpose immediate ministerial berth in a rival government.

The basic idea behind making Anti-defection law is to prevent the very idea of the democracy and the basic principles of our constitution which were enshrined by our constitution makers. Political defection is not new to Indian Democracy. No single party alone can be held accountable for what happened in the two southern states of Goa and Karnataka which eventually have its ripple effect in others states like Madhya Pradesh and Maharashtra which led to political Instability which act as a fertile ground for defection. Today even the Anti-defection law has turned out to be inadequate to deal with the situation in Karnataka, Goa, Madhya Pradesh which has multiple levels of complications, so there is an urgent need to reframe the law so that the very purpose of the law for which the law was introduced doesn’t fall foul in dealing with complicated situations as arisen in Karnataka, Goa and various other States

The Existing provisions In the current Anti-Defection law are that an elected member of a party can be disqualified on two grounds

If he voluntarily gives up his membership or,

He votes or abstains from voting in the House, contrary to his party’s direction and without obtaining prior permission- on the condition is that is that his abstaining from the voting should not be overlooked by his party by more than 15 days.

Meanwhile, the speaker or the chairman of the house is the authority to decide on defection cases.

Describing the Merger Clause

It looked that the defections were proving to be a costly affair, till the time the legislators with a plying Speaker abused the merger clause enunciated in Section 4 of the Tenth schedule

Disqualification on the ground of defection not to apply in case of merger:

A member of house shall not be disqualified under sub-paragraph (1) of paragraph (2) where his original political party merges with another political party and he claims that he and any other members of his original political party—

Have become members of such other political party or as the case may be, of a new political party formed by such merger or

Have not accepted the merger and opted to function as a separate group

The Merger of the original political party of member of a house shall be deemed to have taken place, if and only if not less than two third of the members of the legislature party concerned have agreed to such merger

It implies from the reading of section 4 that the provisions were not to legalise splits of the legislature party concerned as mergers. The provision also not state a stand-alone criterion for the valid merger of the legislature party.

The necessary condition for a valid merger to get the protection of the anti-defection law is the split/merger of the original political party into any other political party or a new political party as the case may be. The not less than two-third criteria is sufficient condition for the merger of the legislature party. The merger of not less than two thirds of legislature party into any other political party or constitution of a new political party has no legal standing without the necessary condition being satisfied. [1]

Let’s take the example of the so-called mergers in the Goa Assembly

The so-called merger happened in March 2019, where two MLAs out of the three of the Maharashtrawadi Gomantak Party (MGP) rebelled, merged the MGP into the BJP both were awarded ministership and one was elevated as Deputy Chief Minister. The speaker opened the chamber at midnight and accepted the split as a merger. A disqualification petition is pending and gathering dust before the speaker.

Followed by this incident, ten congress MLAs give a one page communication to the speaker of GOA state Assembly that their original political party has been merged with BJP. Within Seconds, under the direction of speaker, the legislature department provides for seating arrangements of the to the 10 MLAs as was done earlier with two MGP MLAs claiming to have merged along with the BJP. In other words, the speaker of the house decided through the conduct that the ten people’s representative in the Assembly are belonging to a political party on which they had not contested the election and returned as MLAs into the House. If the speaker had made any other separate seating arrangements for the group of ten, it could have been presumed to be an interim determination, pending the application of mind on whether the congress party has merged and whether the same constitutes as a valid merger.

In the Instant case the speaker declared a merger as a valid merger without following judicial process of even a chance of fair hearing. The direction of the speaker conclusively means that the speaker has recognised the merger. These directions of speaker should be open for judicial review before the court and cannot be camouflaged as coming under the non-justiciable legislative area.

Judiciary Stand on Anti-Defection

The Practice so far is that the Courts do not interfere until a decision regarding disqualification is taken the 10th schedule is pretty clear that on such particular issues, there is a bar on the jurisdiction of courts.

However, there have been instances when petitioners have approached the courts for a direction to the speaker for him/her to take an expeditious decision with respect to disqualification.

The law initially stated that the decision of the presiding officer is not subject to judicial review. This condition was struck down by the Hon’ble Supreme Court in 1992, thereby allowing appeals against the presiding officer’s decision in the High Court and supreme court. However, it was held that there may not be any judicial intervention until the presiding officer gives his order[2]

The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the Hon’ble Supreme Court has interpreted that even in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct. [ Ravi Naik vs Union of India, 1994 SC].[3] In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.

▪ In the recent Karnataka controversy the Hon’ble Apex Court walked the tightrope to maintain the constitutional balance While the rebel MLAs wanted their resignations to be accepted fast by the Speaker and pleaded that they should not be forced to attend the house, the Speaker on the other hand maintained that the MLAs have already incurred disqualification under the Xth Schedule of the Constitution and urged that the Court cannot direct the Speaker to take decisions within a time frame. The Hon’ble Supreme Court passed an interim order giving Speaker as much time as required to decide on the resignations and permitting the MLAs to stay out of the House proceedings if they choose to do so, until further orders[4]

In the recent case of Manipur Assembly Hon’ble Supreme Court held that “The speaker, in acting as a tribunal under the 10th schedule is bound to decide disqualification petition within a reasonable period what is reasonable will depend upon case to case basis but absent exceptional circumstances for which there is good reason, a period of three month is a reasonable period.”[5]

The role of speaker is also very crucial in the defection as speaker is constitutionally obliged to be party neutral while taking the decision regarding the resignation or merger but with the office of speaker becoming partisan, the obedience to the anti-defection law is proving foolish and disobedience pulls in profit for MLAs

The Anti-defection act is caught up in this mess of a speaker who puts the party interest first. Unless courts darken and deepen the provisions of the anti-defection law in respect of merger of political party. The law will continue to be a sword with flat unsharpened blades.

Conclusion

It can be said that when defection takes place, it is the electorate of the common people which is let down, making a charade of democracy. The events of Goa and Karnataka have shown that even after three decades, the anti-defection law has not been able to completely stop the political defections. But just as every cloud has a silver lining, every political crisis churns the judicial-thought-process

[1] https://www.livelaw.in/columns/political-turncoats-mockery-of-the-democratic-ethos–146871

[2] Kihoto Hollohon v. Zachiihu and others. 1992 SC https://lawlex.org/lex-bulletin/anti-defection-law-analysis-of-kihoto-hollohon-vs-zachilhu-air-1993-sc-412/23212

[3] Ravi Naik v. Union of India, 1994 SC

[4] Shrimanth Balasaheb Patil v. Hon’ble Speaker Karnataka Legislative Assembly and others

[5] Keisham Meghachandra Singh v. The Hon,ble Speaker Manipur Legislative Assembly and others 547 of 20201

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