What is Anti-defection law?
The anti-defection law was passed by parliament in 1985 strengthened in 2002. The 52nd amendment to the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection.
Conditions of Disqualification If a member of a house belonging to a political party:
- Voluntarily gives up the membership of his political party, or Votes, or does not vote in the legislature, contrary to the directions of his political party.
- However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
- If an independent candidate joins a political party after the election.
- If a nominated member joins a party six months after he becomes a member of the legislature
- The decision on questions are to disqualification on ground of defection is referred to the chairman or the Speaker of such House, and his decision is final.
- All proceedings in relation to disqualification under this Schedule are deemed to be proceedings in Parliament or in the Legislature of a state.
91st Amendment Act
- It omitted paragraph three from the Tenth Schedule that allowed one-third of the parliamentarians/legislators to split from their parent party.
- However, it left paragraph four in place, which allows two-thirds of the members of a parliamentary/legislative party to merge with an existing political party or form a new political party.
- Essentially what this constitutional amendment did was raise the wholesale defection bar from one-third to two-thirds
The law also made a few exceptions:
- Any person elected as speaker or chairman could resign from his party, and re-join the party if he demitted that post.
- A party could be merged into another if at least two-thirds (Initially one-third) of its party legislators voted for the merger.
However, the law has had some unintended consequences too:
- The law succeeded in checking the regular phenomenon of unstable governments and horse-trading due to floor crossing by legislators. However, it played a huge role in encouraging the centralisation of India’s political parties.
- Legislators in India now cannot take a stand against party leaders or defy the party whip, and use their conscience to vote on a Bill in the House due to fear of losing their seat under the provisions of the Anti-Defection law.
- This has also the effect of dis incentivising lawmakers from seriously thinking, researching or even rifling for best practices to incorporate into legislation that is before the House for consideration and focus their energies on procedural matters.
- Also, a legislator cannot question the sweet deals or alliances between top party leaders.
Does the law impinge on the right of free speech of the legislators?
This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). The court said that “the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.
What changes can be brought in?
- The disqualification of a member of a House should be only on the grounds that if he votes or abstains from voting in the House with regard to a Confidence Motion, No-confidence Motion, Adjournment Motion, Money Bill or financial matters contrary to the direction issued in this behalf by the party to which he belongs to and in no other case.
- Whips can be issued only for those legislative items that threaten the stability of government.
- As recommended by the Goswami Committee, the government should consider giving the power to decide on disqualification under the Act to the President or the Governor, who shall act on the advice of the Election Commission.
- Disqualification of 9 rebel MLAs in Uttarakhand under anti- defection law has once again brought back discussions surrounding the law to the fore.
- Amar Singh and Jaya Prada, who were members of the Rajya Sabha and the Lok Sabha, respectively, moved the court on their expulsion from the Samajwadi Party on February 2, 2010, anticipating ouster from Parliament. As per the interpretation of the anti-defection law by the Supreme Court in 1996, a member elected, or nominated, by a political party continues to be under its control even after expulsion. They felt this impinged upon the fundamental rights of the expelled members, including their rights to equality.
- 18 AIADMK MLAs were disqualified by TN speaker owing allegiance to T.T.V. Dhinakaran.