ANTI-DEFECTION LAW

3rd July, 2021 Polity

Context

The Supreme Court put on hold a petition to frame guidelines for fixing time limits by which the Speakers of Parliament and the Assemblies should decide defection petitions against MLAs.

The anti-defection law in India, technically the Tenth Schedule to the Indian Constitution, was enacted to address the perceived problem of instability caused by democratically elected legislators in India's Parliamentary System of Government
Shifting allegiance from the parties they supported at the time of election, or disobeying their parties' decisions at critical times such as during voting on an important resolution.
It aims to curb Aaya Ram and Gaya Ram politics
It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
The 52nd Amendment Act of 1985 provided for the disqualification of the members of Parliament and the state legislatures on the ground of defection from one political party to another.
Later, the 91st Amendment Act of 2003 made one change in the provisions of the Tenth Schedule. It omitted an exception provision i.e., disqualification on ground of defection not to apply in case of split.

A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House)
The law applies to both Parliament and state assemblies.
Exceptions under the law: Legislators may change their party without the risk of disqualification in certain circumstances.

The Tenth Schedule of the Constitution (which embodies the anti defection law) is designed to prevent the evil or mischief of political defections motivated by the lure of office or material benefits or other similar considerations.
It is intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections.
Rajiv Gandhi, the then Prime Minister, described it as the ‘first step towards cleaning-up public life’.
Prevents horse trading of hostile representatives.

Telangana in 2016, its legislative assembly, speaker had to deal with the defection of 12 of the 15 TDP MLAs in the 119-member assembly
Manipur in 2017 which involves disqualification of a Congress legislator who joined the Ruling BJP right after the 2017 Assembly elections. The Congress had asked the Manipur Speaker to disqualify him and the Speaker failed to act and kept the petition pending.
In Andhra Pradesh, 23 opposition party’s MLAs had defected over a period of time to the ruling Party in the last three years, putting a question mark on the role of the speaker.
The Supreme Court had to intervene in the Karnataka MLAs’ disqualification case where it had held that a Speaker who cannot stay aloof from the pressures and wishes of his political party does not deserve to occupy his chair.

Supreme Court has expressed concerns and had ruled that the High Court can direct Speakers to rule on disqualification petitions if they do not do this within reasonable time
Supreme Court, in Kihoto Hollohan case 1992 which ruled that Speakers, while deciding petitions under anti defection law, exercised judicial powers akin to a tribunal and hence their decisions would be subject to scrutiny of HCs and the SC.
The Supreme Court in the Karnataka rebel MLAs case had said, “Speaker’s political affiliations cannot come in the way of adjudication (of disqualification petitions)”.

Delay in speakers decision: Due to the inordinate delay in deciding the disqualification matter pending before the Speaker, often instances have been observed where legislators who have defected from their parties, continue to be members of the House as seen in the case of Manipur
Speakers office: With no security in the continuity of office, the Speaker is dependent on his or her political party for re-election. This makes the Speaker susceptible to pulls and pressures from her/his political party in the conduct of the proceedings of the Lok Sabha, rather than their own morals.
Paradox of the office: Disqualification petitions entrusted to a Speaker as a quasi-judicial authority is not a rational and logical act when such Speaker continues to belong to a particular political party.

Anti-defection law affecting the ability of legislators to make decisions It does not make a differentiation between dissent and defection.
Decision of the Presiding Officer is subject to judicial review.
It curbs the legislator’s right to dissent and freedom of conscience.
It clearly puts party hegemony on a pedestal and sanctions tyranny of the party in the name of the party discipline’
Its distinction between individual defection and group defection is irrational. In other words, ‘it banned only retail defections and legalised wholesale defections’
It does not provide for the expulsion of a legislator from his party for his activities outside the legislature.
Its discrimination between an independent member and a nominated member is illogical. If the former joins a party, he is disqualified while the latter is allowed to do the same.
Its vesting of decision-making authority in the presiding officer is criticised on two grounds.
- Firstly, he may not exercise this authority in an impartial and objective manner due to political exigencies
- Secondly, he lacks the legal knowledge and experience to adjudicate upon the cases

Administrative Reforms Commission’s Report titled ‘Ethics in Governance’ and various other expert committees have recommended that the issue of disqualification of members on grounds of defection should be decided by the President/Governor on the advice of the Election Commission.
Issues regarding the neutrality of the Speaker should be resolved through following other models/examples of parliamentary democracy like Britain.