Crossing the Floor - The Need for Reform in Anti-Defection Legislation
SIXTH PLACE ARTICLE: The author, Riya Benny is a third year student at St. Joseph's College of Law, Bengaluru.
Betrayal. Treachery. Deceit. These are just some of the words that can be used in connection to the political turmoil and instability caused by rebel MLA’s jumping ship in our country. This article seeks to give the readers an in-depth understanding of what comprises the Anti-Defection law in India and aid them in deciding for themselves whether it’s efficacious or bereft of fruition.
Crossing the floor. A term which many of us are familiar with due to the unbridled defection we have borne witness to in politics actually originated in the British House of Commons. Recent high profile exits in Madhya Pradesh and Rajasthan have forced us to understand the Anti-Defection law and take a hard look at how it serves or harms a democracy.
Perhaps one of the worst forms of political corruption, this appalling phenomenon of defections has been a part of the Indian political scenario since post-independence. This immoral and underhanded technique of acquiring legislators is one of the main contributors to dirty politics in the country.
The 60’s and 70’s showed an unhealthy level of political corruption that necessitated a regulatory law to control defections. The fall of Morarji Desai’s government in 1979 due to the defection of 76 parliamentarians sparked the public’s disapproval and in 1984, Rajiv Gandhi proposed the new Anti-Defection bill in the Parliament which was unanimously approved by both the houses and later by the President.
What is praiseworthy is that “for the first time in the republic's history an amendment had been passed where the ruling party had gone out of its way to accommodate the view of the opposition.” [1]
What is the Anti-Defection law?
The Tenth Schedule which was inserted in the 52nd amendment to the Constitution, embodies what we know as the anti-defection law. Under the same, there are two grounds on which a member of a house belonging to any party can be disqualified.
(i) Voluntarily giving up of membership of the party:
Here, voluntarily giving up the membership doesn’t hold the same meaning as tendering a resignation. If the conduct of a legislator leads the Speaker/Chairman of the concerned house to believe that the member has voluntarily given up his membership, then the legislator stands disqualified.
(ii) Voting against the direction of the party
A legislator can also be disqualified if he votes in the House against the direction of his party. This criterion however, has been met with a lot of criticism and in 2019, the Rajya Sabha MP, Vikas Mahatme, demanded an amendment to the constitution of India to allow legislators to vote as per their conscience, faith and electorate’s interest.
However, an interesting exception to the disqualification is provided in paragraph 4 of the Tenth schedule which states that “If there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified.”[2]
The contrast between a disqualification and a resignation lies in the consequences of the action. If an MLA/MP resigns, he can become a minister in the new government immediately, provided he contests and wins an election to the house within 6 months. However, if he is disqualified under Schedule 10, he ceases to be a member of parliament, legislative assembly or legislative council respectively as per Articles 102/2 and191/2.
In addition, Articles 75(1)(B), 164(1)(B), and 361(1)(B) bar the disqualified member from being appointed as a minister and from “holding any remunerative political post for the duration of the period commencing from the date of his disqualification till the date on which the term of his office would expire or till the date on which he contests an election to a House and is declared elected, whichever is earlier.”[3]
Having said this, the Supreme Court in the Karnataka rebel MLAs’ case set the precedent that “a presiding officer cannot curtail a disqualified member’s right to go back to the electorate and seek re-election.”[4] Although it upheld the former Speaker’s decision to disqualify these 17 MLAs, the apex court cited the judgement of the Bombay High Court in Indian National Congress vs State of Goa that “the speaker doesn’t have the power to disqualify MLAs for the remaining tenure of the house.”[5] Thus, the rebel MLA’s were permitted to contest the by-polls held in Dec 2019.
Earlier, the power to decide on disqualifications and resignations only belonged to the speaker and his/her decision was considered to be final. But the Supreme Court in Kihoto Hollohan vs Zachillhu and Others, 1992 ruled that “the decision of the Speaker in this regard is subject to judicial review.”[6]
Even in Keisham Meghachandra Singh vs. the Hon’ble Speaker Manipur Legislative Assembly & Ors (2020), the Supreme Court questioned, “Why a Speaker- who is a member of a particular political party and an insider in the House, should be the sole and final arbiter in the cases of disqualification of a political defector.”[7]
Anti- Defection Law – Boon or Bane?
The intention of the framers of this law was to address the menace that defections caused in terms of political instability. Defecting from the original party, or acting in contravention to parties' decisions at critical times such as during voting on an important resolution was considered to be a symptom of a corrupt and morally deficient government.
Although this law has substantially reduced the disorderly politics of defection that was steadily growing in India, there is an undeniable yet deplorable tendency on the part of members of both the state and central government to circumvent this law thus casting a shadow of futility on its execution.
The exception mentioned in Schedule 10 permits a merger if not less than two-thirds of the legislators belonging to a party decide to join another party or as a result of the merger create a new party. “Congress MLAs in Goa used this provision to join the Bharatiya Janata Party (BJP), and their peers in Telangana used it to join the ruling Telangana Rashtra Samithi (TRS).”[8]
Another wily method of defection disguised as a resignation, was conceived by the BJP. What came to be known as “Operation Kamal” was made use of not just in 2008 but an attempt was made in 2019 as well. “The MLAs could resign from the legislature, switch sides, re-contest under a new symbol and come back to the assembly from a different party.”[9]
Occurrences like these justify the need for the Anti-Defection law albeit with a few reforms. But opponents of the law opine that denying the legislator the opportunity to reconsider his stance and thus evolve his thinking is a highly restrictive yet effective method of imposing a political handicap on the legislator. Furthermore, they cite defections that take place in the advanced Western democracies that haven’t found it necessary to introduce anti-defection laws.
Another flaw that has been pointed out is that only the Speaker has the discretion to decide whether the resignations were voluntary or genuine and the fact that the person occupying this post is politically affiliated to the party in power, is testament to the many instances where Speakers have been parti pris on issues related to defection.
The law also does not specify a time-period for the Speaker to decide on a disqualification plea. The Courts prohibited from intervening until the Speaker takes a decision.
The Supreme Court, after taking notice of the unreasonable delay in the Manipur legislative assembly case ordered the Manipur assembly Speaker to decide on the disqualification of 13 lawmakers (pending since April 2017), within four weeks of the Court giving this order.
Need for Reform
At this juncture, where our democracy can be perceived to be fragmenting due to a myriad of concerns and obstacles, our primary objective must be to seek stability in the government.
Taking an admirable stand, the Supreme Court in January urged Parliament to set up an “Independent Permanent Tribunal headed by a retired SC judge, retired chief justice of a HC or some outside independent mechanism to decide disqualification petitions” [10] within a reasonable time.
“It is time Parliament rethinks on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto,” [11] stated the bench led by Justice RF Nariman.
One can draw a critique of how doing so would be a violation of Article 122 which bars Courts from inquiring into the proceedings of the Parliament and thus infringes the principle of Separation of Powers. But the fact that the decision-making power held by the Speaker is quasi-judicial per se cannot be overlooked.
The insertion of Schedule 10 was a historic move that aimed at strengthening the political fabric of our nation. But it has been subject to criticism mainly on how it restricts the representative from making choices in accordance with his principles. A constitutionally elected representative should ideally have the freedom to dissent against legislation he finds unsuitable for his electorate. The obstruction to intra-party democracy is ironic considering what the law aims to strengthen in the first place. But the unabashed manner in which political defections take place in India, necessitates the implementation of the Anti-Defection law.
In a country whose asset as well as liability is its diverse population, laws such as these must be supplemented with certain measures. There is an urgent need to impose regulations on government funding of elections and one way to do this would be through auditing political parties’ accounts.
Additionally, certain reforms can be introduced that prevent representatives from profiting from a defection. For instance, a legislator who decides to resign, may be allowed to re-contest in the elections. However, he must be prohibited from holding any ministerial berth or any public office for a certain period of time.
Alas, implementing any sort rule in this context would have its own share of consequences. It’s truly unfortunate that there are no infallible remedies to prevent defections. “Where there’s a will there is a way” could not be more apt to describe this sorry state of affairs. If he substantially profits from it, the legislator will find a way to shift allegiance.
Ultimately, only we the people can hold them accountable for their actions.
[1] Combating Political Corruption: A Critique Of Anti-Defection Legislation - Pardeep Sachdeva; The Indian Journal of Political Science,Vol. 50, No. 2
[2] https://www.manifestias.com/2020/05/03/guidelines-of-sc-on-anti-defection-law/
[3] The Constitution (Ninety-First Amendment) Act, 2003
[4] https://www.msn.com/en-in/news/other/explained-sc-sets-the-rule-disqualified-mlas-cant-be-barred-from-contesting-elections/ar-BBWGQCY
[5] https://www.msn.com/en-in/news/other/explained-sc-sets-the-rule-disqualified-mlas-cant-be-barred-from-contesting-elections/ar-BBWGQCY
[6] https://indianexpress.com/article/explained/karnataka-crisis-what-was-scs-kihoto-hollohan-order-of-1992-what-is-the-role-of-speaker-5834547/
[7] https://www.thehindu.com/news/national/sc-asks-parliament-to-rethink-powers-of-the-speaker-in-disqualification-of-ministers/article30615269.ece
[8] https://theprint.in/opinion/laws-cant-stop-indian-politicians-from-defecting-but-theres-someone-who-can/267194/
[9] https://theprint.in/opinion/laws-cant-stop-indian-politicians-from-defecting-but-theres-someone-who-can/267194/
[10] https://economictimes.indiatimes.com/news/politics-and-nation/disqualification-of-lawmakers-sc-asks-parliament-to-rethink-powers-of-speaker-in-deciding-pleas/articleshow/73476008.cms
[11] https://economictimes.indiatimes.com/news/politics-and-nation/disqualification-of-lawmakers-sc-asks-parliament-to-rethink-powers-of-speaker-in-deciding-pleas/articleshow/73476008.cms