The anti-defection law is facing convulsions

• Parliament enacted the anti-defection law (10th Schedule) in 1985 to curb political

INSIGHTS ON THE ISSUE

Context

Anti Defection Law:

52nd amendment in 1985 inserted 10th schedule (anti- defection law)

Grounds for disqualification are mentioned in Article 102(2) & 191(2) for MP’s and MLA’s

Defected:

• Elected member (gives up & voting)
• Independent member
• Nominated member

Exceptions:

• Speaker or chairman
• Party could be merged into another (2/3 majority)

Presiding Officer decides on the question of disqualification. Issue is – SC interpretation in G Vishwanathan judgment in 1996 case (unattached member)→ Amar Singh (MP)

Advantages • Stability and party discipline

Disadvantages ▪ Members freedom gets affected

• Its purpose was to bring stability to governments by discouraging legislators from changing parties.
• It sets the provisions for disqualification of elected members on the grounds of defection to another political party.
• It allows a group of MP/MLAs to join (i.e., merge with) another political party without inviting the penalty for defection.
• And it does not penalize political parties for encouraging or accepting defecting legislators.
• 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party must be in favor of a “merger” for it to have validity in the eyes of the law.
• The members disqualified under the law can stand for elections from any political party for a seat in the same House.
• The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.
• The law does not provide a timeframe within which the presiding officer has to decide a defection case.

Grounds of Disqualification:

elected member voluntarily gives up his membership of a political party.

If elected member 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.

If any independently elected member joins any political party.

If any nominated member joins any political party after the expiry of six months.

Issues with Anti Defection Law:

• Ambiguity about Party: It does not clarify whether the original political party refers to the party at the national level or the regional level.
• Claim about merger:
  • merger can take place only when an original party merges with another political party
  • at least two thirds of the members of the legislature party have agreed to this merger.
  • It is only when these two conditions are satisfied that a group of elected members can claim exemption from disqualification on grounds of merger.
• Creating legal fiction : Merger of two third members of the legislature party can be deemed to be a merger of political parties, even if there is no actual merger of the original political party with another party.
• Undermining Representative & Parliamentary Democracy:
  The MP or MLA has to follow the party’s direction blindly and has no freedom to vote in their judgment.
  • The chain of accountability has been broken by making legislators accountable primarily to the political party.
• Controversial Role of Speaker: No clarity in the law about the timeframe for the action of the House Chairperson or Speaker in the anti-defection cases.
  • Some cases take six months and some even three years.
• No Recognition of Split: Due to the 91st amendment, the anti-defection law created an exception for anti-defection rulings.
  • However, the amendment does not recognize a ‘split’ in a legislature party and instead recognizes a ‘merger’.
• Subversion of Electoral Mandates: Defection is the subversion of electoral mandates by legislators who get elected on the ticket of one party but then find it convenient to shift to another, due to the lure of ministerial berths or financial gains.
• Affects the Normal Functioning of Government: The infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous defections by the legislators in the 1960s.
  • The defection leads to instability in the government and affects the administration.
• Promote Horse Trading: Defection promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.

Reasons for bringing anti-defection law:

• Governments: Defections caused the frequent fall of governments
• Instability: It caused great instability in political parties with power-seeking politicians wreaking havoc on political parties.

How was this dealt?

• Kihoto Hollohan case: SC characterized it as a political evil and upheld the right of Parliament to curb this evil through legislative mechanism.

Objectives:

• To curb the act of defection by disqualifying the defecting member.
• To protect political parties from debilitating instability.

Provisions enacted in the 10th Schedule:(Split)

• Split in a political party and that of a merger of two political parties.
• If a split occurs in a political party resulting in a faction coming into existence
  • one-third of the legislators move out of the party and join that faction
  • Those members could get an exemption from disqualification.
• One-third of the legislators would get protection only if there was a split in the original political party.
• The split in the original political party is the pre-condition for exempting one-third of legislators from disqualification.
• If there was no split in the original political party and one-third of the legislators only moved out, all of them would be liable to be disqualified.
• With the deletion of this paragraph, a split in the original party is no longer a defense against disqualification.
• Even when a political party has split, the legislators will not get any protection.
• For the legislators to claim protection, a split in the original party was always necessary.

The merger issue:

• It protects defecting members from disqualification
• The condition is merger of the original political party with another party and two-thirds of the legislators agreeing to such a merger.
• Merger of the political party is the precondition to seek exemption from disqualification.
• Legislators do not have the freedom to bring about a split or merger as they are legally restrained by the anti-defection law.
• The Speaker cannot make a roving inquiry into the split or merger as the Speaker takes the decision only after ascertaining the fact of the split.
• Merger of the original political party provides the basis for claiming protection from disqualification
• The merger will be deemed to have occurred only if two-thirds of the legislators agree to such merger.
• For exempting defecting legislators from disqualification, merger is taken into account only if two-thirds of legislators have agreed to it.
• A merger of parties can take place outside the legislature but it has no consequence unless two-thirds of the members agree to it.

The crux of the Maharashtra case:

• Validation of whip:
  • It should have been decided on the basis of the explanation (a) to paragraph 2(1)(a):
    • It says that an elected member of a House shall be deemed to belong to the political party by which he was set up as a candidate for election as such member.
    • This explanation makes it unambiguously clear: The party which can legally issue the whip is the Shiv Sena led by Uddhav Thackeray
    • this is the party which set them up as candidates in the last election.
  • The anti-defection law was enacted to punish defectors, not to facilitate defection

 Way Forward

• The 10th Schedule is a constitutional law and the disqualification proceedings under it should have been given primacy over the proceedings under paragraph 15 of the symbols order which is a subordinate legislation.
• The ECI gave a flawed order which has made the operation of the 10th Schedule irrelevant and complicated.
• Legislators have no freedom under the 10th Schedule to split or bring about a merger of their party with another.
  • Only the original party can do that and the legislators have the choice to agree or not to agree to it.
• A whip can be legally issued only by the original political party which set them up as candidates in the election.
  • The Court could have settled in the favor of original political party, the Shiv Sena led by Mr. Thackeray, as in the mandate of Article 142 of the Constitution.
• The Tenth Schedule has been reduced to a nullity: governments that do not have clear majorities are vulnerable, at any point, to being “toppled” in this fashion.
• In the context of a changed political situation judicial interventions, if not carefully thought through, can hasten the toppling of a government and contribute to turning the Tenth Schedule into a dead letter.

 QUESTION FOR PRACTICE

Discuss the procedures to decide the disputes arising out of the election of a Member of the Parliament or State Legislature under The Representation of the People Act, 1951. What are the grounds on which the election of any returned candidate may be declared void ? What remedy is available to the aggrieved party against the decision? Refer to the case laws.(UPSC 2022) (200 WORDS, 10 MARKS)