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Anti-Defection Law in India: Contours and Concerns
from The Parliamentarian: 2023 Issue Four: Separation of powers between Parliament, Executive & Judiciary
In a democratic parliamentary polity, the changing of party affiliation on the part of a Legislator(s) who is elected from one political party to another, subsequent to the election, raises the issue of principles. If dissent is a legitimate democratic right, then the Legislator shifting political loyalty is justified. However, it is always a difficult task to draw a fine line between principle and political opportunism. When a Legislator or a splinter group breaks away from the parent party and forms another political entity or merges with another party, it is considered political opportunism, but if one looks from the other end of the spectrum, if the defecting Legislator or the splinter group is not allowed to move on, then the denial stifles his or her democratic and political freedom.
With a view to regulating political defection, the Constitution of India was amended in 1985 by the Fifty Second (Amendment Act), 1985 incorporating the Tenth Schedule in the Constitution, which enumerated the provisions for disqualifications of Members of Legislatures, both the national Parliament and State Legislatures on the grounds of political defection. The statement of objects and reason in the Bill stated, “The evil of political defections has been a matter of national concern. If it is not combatted, it is likely to undermine the very foundations of our democracy and principles which sustain it…” But nowhere in the Constitution of India including the Tenth Schedule, has the term defection been defined. The Tenth Schedule, however, for the first-time mentioned Legislature party /political party in the Constitution.
Grounds for defection
As per the provisions of the Anti-defection Law, a Member of the Legislature is liable to be disqualified from the membership of the Legislature by the Presiding Officer broadly on two grounds. In the first place, if they ‘voluntarily’ give up their membership of such a political party; secondly if they vote or absents in the Legislature to any direction issued by the political party to which they belong or by any person or authority authorised by it on their behalf, without obtaining in either case, the prior permission of such a political party, person or authority, and such voting or abstention is within fifteen days from the date of such voting or abstention.
Over the years, certain lacunae of the Anti-defection law have come to the forefront. One such major defect concerned clause 4 of the original Anti-defection Law pertaining to the provisions relating to a ‘split’, which was rampantly misused by those in power and claims that it led to the unethical practice of ‘horse trading’. It was against this backdrop that the provision relating to 'splits' was deleted from the Tenth Schedule by the Ninety-first Constitutional Amendment Act, 2003. The amendment also provided for the debarring of the defecting Legislators from holding Ministerial or remunerative political posts unless re-elected to their Legislatures. The Amendment further stipulated that the total number of Ministers in the Council of Ministers shall not exceed 15% of the total number of Members of the Legislature, both at the Centre and the State level.
Jurisdiction of Courts
The Anti-defection Law originally debarred courts in respect of any matter connected with the disqualification of a Member of the Legislature under the Tenth Schedule. This paragraph, however, has been held by the Supreme Court of India as ultra-virus of the Constitution in their majority opinion as relates to Kihota Hollohon vs. Zachilhua & others in 1993 on the grounds of its non-ratification by the State Legislatures. The apex body of the all-India Presiding Officers Conference in an emergent meeting held in 1992 unanimously agreed that in matters relating to the Anti-defection Law before the courts, the Presiding Officers would furnish the records, if called for, and respect the decisions of the Courts. They would, however, not subject themselves to the jurisdiction of the Courts. Thus, a very healthy convention has already been established in the relationship between the Legislature and the Judiciary. All of these outcomes have certainly brought some degree of sanity in the narrative of our political discourse.
Some grey areas
However, there are still some grey areas which need to be addressed. A major drawback of the Anti-defection Law is the lack of precise definition of defection itself. Similarly, terms like voluntarily ‘giving up’ party membership and a political party have not been defined. The Anti-defection Law itself does not expressly take into account the activity of a Legislator outside the Legislature. Both the Presiding Officers and the courts have given their rulings and pronouncements on the basis of creative interpretation of the Law, earlier rulings given by the Presiding Officers and the related Constitutional provisions, rules of parliamentary procedures, conventions and proprieties.
As regards the issuance of the party ‘whip’, it may be mentioned that the Law Commission of India under the Chairmanship of Justice B. P. Jeevan Reddy in its 170th Report, inter-alia had observed “whips may be issued only when the voting in the House affects the continuance of the Government and not on each and every occasion. Such a course would safeguard both the party discipline and freedom of speech and expression of the Members.”
Timeframe to decide cases
Yet another major lacunae in the law is that it doesn’t provide a timeframe for the decision by the Presiding Officers. It is against this backdrop that in a recent judgement on 18th September this year, the Supreme Court of India, responding to an application moved by a faction of the ruling Shivsena party in the State of Maharashtra, observed that disqualification proceedings pending before the Maharashtra Legislative Assembly could not be delayed indefinitely and the Speaker has to abide by the Court’s order. It asked the Speaker to hear the matter in ‘no later than a week’. The Court further said, “The order of this court requires the Speaker to decide the disqualification petitions within a reasonable period. While this Court is cognizant to the need of the comity with the Speaker, we also expect the Speaker shall hear the case and the matter no later than a period of one week…”
Recommendation of Halim Committee
Incidentally in a similar case in the Maharashtra Legislative Assembly earlier in 2002, one of the significant procedural issues that emerged during the hearing pertained to the discretionary power of the Speaker in granting time for the submission of replies by the respondents. The argument of the respondent was that under the concept of the Rule of Law, the Speaker was also bound to abide by the rules framed by them. However, the Speaker held that the rules formed to ‘curb the menace’ (of defection) are directory rather than mandatory. Besides, the rules framed in the Legislative Assembly under the Anti-defection Law provide enough space to the Speaker to use discretion in procedural matters relating to the granting of time for the submission of replies. Accordingly, the Speaker refused permission to the respondent for an extension of time to file replies.
In the light of the recent observation of the Supreme Court, it is worth a while to mention that in a report entitled ‘A review of Anti-defection Law’, under the chairmanship of late Speaker of the West Bengal Assembly and former Chairman of the Commonwealth Parliamentary Association, Hon. Hahim Abdul Halim, which was adopted by the Conference of Presiding Officers in India in October 1994, inter alia had observed that a time frame may be laid down for a decision by the Election Commission in Anti-defection cases.
