Political 'Turncoats' & Mockery Of The Democratic Ethos: An Analysis Of The Anti Defection Law & The Way Ahead

When the framers of our Constitution set out making the statues, they had certain moral & ethical standards in mind for the conduct of politics. They could not foresee the 'Aya Ram, Gaya Ram' syndrome, and the lust of power and money which prompted the enactment of the anti-defection law. Today even the anti-defection law has turned out to be inadequate to deal with the situation in Karnataka, which has multiple levels of complications, which will take great drafting genius to formulate in terms of a written law.

• Political defections are not new to Indian democracy. No single party alone can be held accountable for what happened in the two southern states of Goa and Karnataka recently, which will have ripple effects in other States (like MP & Maharashtra) as well and lead to political instability which acts a fertile ground for defection.

  What does the present anti-defection law say?

  The anti-defection provisions in India were first introduced in 1985 through the 52nd Amendment to the Constitution when the Rajiv Gandhi-led Congress government was in power. The legislation was brought in with the view that if the evil of political defections was not combated, it is "likely to undermine our democracy and the very principles that sustain it". It provided that in case a member of a legislature voluntarily gives up the membership of her party (overtly, or even by merely abstaining from voting), he or she will be disqualified from becoming a member of that House until he/she is re-elected afresh.

  However, when even this provision in the law did not stop large scale defections, another amendment provided that a member so disqualified could not become a minister unless first re-elected, thus dissuading defections for the sole purpose of immediate ministerial berth in a rival government (Usually, any person can be appointed minister given that he/she gets elected within the next six months.)

  Thus, at present, the 10th Schedule of the Indian Constitution also called the Anti-Defection Act states that an elected member of a party can be disqualified on two grounds:

  • If he voluntarily gives up his membership or,
  • He votes or abstains from voting in the House, contrary to his party's direction and without obtaining prior permission — on the condition is that his abstaining from the voting should not be overlooked by his party by more than 15 days.

  According to the law, at least two-thirds of the party members have to be in favour of a 'merger' for it to possess judicial validity.

  The following, however, will not be considered defections:

  1. If a complete political party merges with another political party;
  2. If a new political party is created by the elected members of one party
  3. If the party members do notaccept the merger between the two parties and opt to perform as a separate group from the time of such a merger.

  Meanwhile, the Speaker or the Chairman of the House is the authority to decide on defection cases.

  The Karnataka Incident Raises Vital Issues

  The incident calls for an interpretation of the three provisions of the Constitution: Article 190 (vacation of seats), Article 164 (1B), and the X^th schedule of the Constitution.

  • The Speaker has the power to not accept resignation if he/she comes to the conclusion that there are grounds to believe that the resignation is a consequence of coercion or any other kind of undue influence or inducement. Inducement could also mean some kind of post/position elsewhere.
  • If the Speaker comes to a conclusion that resignation is effectively connected and linked to the aspect of defection, then perhaps that particular resignation can be kept on hold and it need not be accepted.
  • The defection is happening due to the lure of money and ministerial offices. The decision to resign before disqualification is taken because it allows a member to become a minister in the current House otherwise the member cannot become a minister in the current House until his/her re-election or the expiry of term, whichever is earlier.
  • It has raised the question of whether one should link or delink resignation with disqualification. In a situation where a resignation has been tendered and disqualification proceedings have also been initiated, the Speaker is in a fix, whether to take a call on disqualification first, as a consequence of which, resignation becomes redundant or accept the resignation first, in which case perhaps the disqualification may become redundant.

  The Judiciary on Anti Defection

  The practice so far is that the Courts do not interfere until a decision regarding disqualification is taken. The X^th Schedule is pretty clear that on such particular issues, there is a bar on the jurisdiction of courts.

  However, there have been instances when petitioners have approached Courts for a direction to the Speaker for him/her to take an expeditious decision with respect to disqualification. Certain significant judicial pronouncements that have shaped the anti defection law in India are as under:

  • The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Hon'ble Supreme Court in 1992, thereby allowing appeals against the Presiding Officer's decision in the High Court and Supreme Court. However, it was held that there may not be any judicial intervention until the Presiding Officer gives his order. [Kihoto Hollohon vs. Zachilhu and Others, 1992 SC]

  ▪ The law provides for a member to be disqualified if he 'voluntarily gives up his membership'. However, the Hon'ble Supreme Court has interpreted that even in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.[ Ravi Naik vs Union of India, 1994 SC]. In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.

  ▪ In the recent Karnataka controversy the Hon'ble Apex Court walked the tightrope to maintain the constitutional balance While the rebel MLAs wanted their resignations to be accepted fast by the Speaker and pleaded that they should not be forced to attend the house, the Speaker on the other hand maintained that the MLAs have already incurred disqualification under the Xth Schedule of the Constitution and urged that the Court cannot direct the Speaker to take decisions within a time frame. The Hon'ble Supreme Court passed an interim order giving Speaker as much time as required to decide on the resignations and permitting the MLAs to stay out of the House proceedings if they choose to do so, until further orders.

  Problems in the Anti-defection Law

  The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgment and interests of his electorate. Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.

  Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue. Several experts have suggested that the law should be valid only for those votes that determine the stability of the government. There can also be genuine cases where individual MPs or MLAs may be are genuinely not convinced by the line taken by their party. Should he/she kill his/her conscience?

  Another major problem with anti-defection law is that the Speaker has been given almost absolute powers. On many instances Speakers have not acted impartially, and have shown their political leaning. Their partisan conduct has lowered the dignity of the office, which is why their decisions are questioned in a Court of law. Apart from this, the law does not specify a time-frame for the Presiding Officer to decide on a disqualification plea. Given that the Courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

  There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions. In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House.

  Anti-defection law: The Way Ahead

  Although the matter boils down to the anti-defection law, yet more than the deficiency in the law it is the degeneration of the moral and ethical values of the current crop of politicians that to blame for the trouble. However certain suggestions regarding the change in the anti-defection law can be discussed as under:

  • Since the experience till now has been that the Speakers have not been able to act above party politics with impartiality, the power to decide on the disqualification of the members of a House can be delegated to the Hon'ble Chief Justice of the concerned High Court in case of the State Legislature & the Hon'ble Chief Justice of India or a Judge of the Supreme Court nominated by him in case of Parliament. A Tribunal can also be constituted which shall be presided by a former Chief Justice to decide such matters within a time frame.
  • There is a need to provide the Speaker with a definite timeframe to decide on the resignation or disqualification of the Members.
  • Another way is to take some kind of inspiration from the Company Law where even after a person has resigned from his post as a Director, he can be held accountable for actions that he took as a Director under Section 168 (2) of the Companies Act. It can happen that the Speaker accepts the resignation when it is tendered, on the belief that the same has been tendered in a bonafide fashion but after sometime, if he comes to realize that there has been mala fide reason behind the resignation, due action can be taken.
  • Anti-Defection Law should be made applicable only in a situation where there is a vote for survival of the government or trust vote of no-confidence motion.
  • There must be specific law to provide for internal democracy within political parties, providing for transparency and accountability in the internal structure and the conduct of affairs of political parties, as they constitute the bedrock of Parliamentary Democracy.
  To sum up, it can be said that when defection takes place, it is the electorate that is let down, making a mockery of democracy. The long-drawn-out events in the Karnataka have shown that even after three decades, the anti-defection law has not been able to stop political defections. But just as every cloud has a silver lining, every political crisis churns the judicial thought-process.

  Aishwarya Pratap Singh, is an Addl. Chief Metropolitan Magistrate in Kanpur Nagar, Uttar Pradesh.

  [The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]