Mains Issue #9: Anti-Defection Law and Toppling of State Governments

The recent political crisis in Arunachal Pradesh and Uttarakhand has been all over the news with the display of political opportunism at its best. Time and again we have been witnessing state governments being toppled by strong union governments using money and muscle power. A similar script plays in all these instances which starts with a few rebel legislators switching sides, challenge to the authority of the speaker, a partisan Governor,  a determined opposition party at the centre, declaration of President’s rule and incessant litigation involving the Supreme/High Court.

The question that comes to mind is that what is the purpose of Anti-Defection law after-all, when even one-fourth of legislators are able to topple a government?

What is the history of Anti-Defection Law?

The Anti-Defection Law was passed in 1985 through the 52nd  Amendment to the Constitution, which added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat “the evil of political defections”.  The aim of the law was to stop “retail defection” but it ended up promoting “wholesale defection”.

The National Commission to Review the Working of the Constitution (NCRWC) recommended the deletion of the Tenth Schedule provision regarding exemption from disqualification in case of a split. Finally the 91st Constitutional Amendment Act, 2003, changed this. So now at least two-thirds of the members of a party have to be in favour of a “merger” for it to have validity in the eyes of the law.

After the passage of the act many judgements by the Supreme court shaped the Anti-Defection Law.

What are the important judgements and their impact?

1) Kihota Hollohon vs. Zachilhu and Others AIR 1993 – The judgement states that the provisions  of Anti Defection law do not subvert  the right to freedom of speech and expression of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution.

Regarding the decision of the Speaker when it comes to the disqualification of a member. The

Speaker while passing an order under the Tenth Schedule functions as a Tribunal. The order passed by him would therefore be subject to judicial review. Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen.

2)  Ravi S Naik v. Union of India AIR 1994  – The words “voluntarily giving up membership” have a wider meaning. An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party. This means the conduct of the legislator outside the house can also be taken into account to decide upon his status of membership.

What are the main issues with Anti-Defection law?

1) Does the law lead to suppression of healthy intra-party debate and dissent? – There has been a concern that the whip by the respective parties results in suppression of intra party dissent. It  has been argued that this results in legislators taking radical steps as seen in the recent cases of Uttarakhand and Arunachal Pradesh.

2) Who should decide regarding the question of disqualification? – The decision of Speaker is final when deciding the case of disqualification. But it is open to judicial review as the Speaker is seen acting in the capacity of a tribunal. But in most cases the Speaker is partisan as he is a member of the majority political parties. In other cases like in Arunachal Pradesh where the Speaker was replaced by another Speaker who was favourable to the rebels resulting in formation of government by the rebels. The Governor plays a key role in manoeuvring such processes.

There have been suggestions to transfer the decision making powers to the Governor/President or the Election Commission.

What are the major recommendations for improving the Anti-Defection law?

1) Dinesh Goswami Committee on electoral reforms (1990)

• Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.

• The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.

2) Law Commission (170th Report, 1999)

• Provisions which exempt splits and mergers from disqualification to be deleted(Implemented)
• Pre-poll electoral fronts should be treated as political parties under anti-defection law.
• Political parties should limit issuance of whips to instances only when the government is in danger.

3) Election Commission

• Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.

4) Constitution Review Commission (2002)

• Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term.

• The vote cast by a defector to topple a government should be treated as invalid.

It is about time that all political parties should rise above personal interest and come together to look for a solution for such wholesale defections. The open display of political opportunism leads to loss in faith of democratic process and  betrayal of trust of people in elected representatives.

References

PRS India

DNA India

Rajya Sabha TV Sarokaar – Anti Defection Law Dilution