Anti-Defection Law: Explained

The Speaker of the West Bengal Legislative Assembly Mr.Biman Banerjee has approached the Supreme Court against the order of the Kolkata High Court. The Kolkata High Court in its order had, among other things, held that the Speaker must take a decision on the disqualification of Mr.Mukul Roy within 3 months from the date of the order. The following article shall seek to explain what disqualification on the grounds of defection means and under what laws are Speakers empowered to take such decisions. The article shall also discuss the loopholes that exists in the 'Anti-Defection' law which have allowed legislators to by-pass the intent of the law and some of the measures taken by the Judiciary to address these loopholes.

SCHEDULE X: PUTTING AN END TO 'AAYA RAM GAYA RAM' POLITICS

The Tenth Schedule of the Constitution popularly known as the 'Anti-Defection law' seeks to disqualify elected members of Parliament and State Assembly for the act of defecting to another political party. The 'Anti-defection' provisions were inserted into the Constitution by the 52nd Constitutional Amendment Act in 1985 with an intention to put an end to 'Aaya Ram Gaya Ram' politics whereby politicians would change political parties frequently on the promise of money, power, or ministerial berths. The Amendment Act introduced made changes to Articles 102 and 191 of the Constitution of India and introduced 'defection' as a ground for disqualification of legislators. The Anti-Defection Law recognizes that there can be genuine instances of a person wishing to change their political allegiances and hence does not punish every act of a change in a political party. It specifies the circumstances under which changing political parties by legislators will invite action under the law. The objective behind enacting the Anti-defection law was to bring an end to the practice of politicians constantly shifting political allegiances, horse-trading and the influence of money and muscle power in politics. It was hoped that the law would act as a deterrent and thereby bring stability to democratically elected governments. However, three decades since its introduction the growing number of instances of defections and governments being toppled by politicians shifting alliances en-masse is an indication that the Anti-Defection Law hasn't entirely been successful in fulfilling its objective. While there hasn't been any comprehensive study on the number of defections at the Centre and state level, a recent report by Association for Democratic Reforms shows that governments in Madhya Pradesh, Manipur, Goa, Arunachal Pradesh, and Karnataka fell during the past five years due to the defection of MLAs.

10^th Schedule of the Constitution lays down the process by which legislators may be disqualified for the act of 'defection'. The decision is taken by the Presiding Officer of the Parliament or State Legislature- thus the Speaker or the Chairman as the case may be. The action can be initiated based on a disqualification plea moved by any other member of the Parliament/ state legislatures. The Constitution doesn't define the term 'defection' but it provides certain grounds under which a legislator may be disqualified:

• Voluntarily giving up membership of party
• Voting or abstaining from voting in the House, contrary to any direction issues by his political party
• Independent Member joins any party.
• Nominated Members joins 6 months after taking the oath to become a legislator

The law also provides certain exceptions under which legislators may change with the political party without the risk of disqualification. For example, in case of a merger of a political party wherein 2/3rd of the legislators are in favor of the merger with another party, the Anti-Defection Law would not apply.

In the first instance, the Anti-Defection law seems to be a perfect law covering all possible instances of defection and putting in place a mechanism to take a call on disqualification pleas. However, there are certain grey areas in the law that have been exploited by legislators as the following part of the article will explain.

ANTI-DEFECTION: A LESS THAN PERFECT LAW

The 'Anti-Defection' Law has been far from perfect as can be evidenced from the defections which have continued unabated. The biggest criticism that can be leveled against the law is the fact that since the authority to decide defection pleas rests with the Presiding Officer of the House, i.e the Speaker/Chairman, who is invariably from the ruling party in power, the decisions on disqualification pleas are not free from bias. The post of the Presiding Officer is put into a spot because the Indian Constitution doesn't require that the Speaker give up membership of his/her ruling party. This raises questions over potential bias in the decisions taken on disqualification pleas. The role of the Speaker in Anti-defection cases and attracted much criticism. It has been seen that in some cases even blatant defections have been ignored when the person is defecting to the ruling party and a relatively proactive decision-making process when a person is defecting from one's own party. Experts have also argued that Presiding Officers lack expertise in deciding anti-defection cases which are quasi-judicial in nature and hence the decision-making authority should vest with a quasi-judicial authority that is independent in nature.

To introduce a semblance of objectivity in the decision-making process, the Supreme Court in the case of Kihoto Hollohan vs Zachilhu and Others, struck down condition laid down in the 10^th Schedule that the decision of the Presiding Officer is not subject to judicial review thereby allowing appeals against the Presiding Officer's decision in the High Court and Supreme Court. The Court laid down grounds for review of the decision of the Presiding Officer- infirmities based on violation of constitutional mandate, mala fides, non­compliance with rules of natural justice, and perversity. However, the Court went on to clarify there arose no occasion for any judicial intervention until the Presiding Officer has given his/her order. Given that the courts can only intervene after the Presiding Officer has decided on the matter, this has meant that the petitioner seeking disqualification has no option but to wait for the decision to be made.

That the Constitution provides no time limit within which the Presiding Officer must decide on the disqualification plea has become a fertile ground for misuse as Presiding Officers have used this as an excuse to deliberately delay giving decisions on disqualification pleas. It has been seen that the delay in decision-making has allowed defecting members to continue as members of the House, vote in no-confidence motions, help in topple governments, and be appointed as ministers in the government- all while still retaining membership of original parties. This effectively bypasses the rigor of the Anti-Defection provision. To overcome this lacuna and to ensure that decisions are taken within a reasonable time, the Supreme Court in Keisham Meghachandra Singh v. Speaker, Manipur legislative assembly held that the Speaker of the Legislative Assembly should decide on a petition seeking disqualification of a member under Tenth Schedule of the Constitution within a period of three months from the date on which petition is filed. However, a cursory look at the defections that have take place since the judgment shows that the time period of three months rarely been followed. 

The third major grey area in the Anti-Defection law which has been exploited to bypass the intention of the law is the issue of resignations. In Srimanth Balasaheb Patil vs Hon'ble Speaker Karnataka Legislative Assembly and Others, the Supreme Court held that the resignation of a legislator will not efface the effect of disqualification if defection has taken place before the date of resignation. Affirming a legislator's right to resign, the court clarified that a "pending disqualification action does not become infructuous by submission of a resignation letter when the acts of disqualification had arisen prior to member's resignation letter." However, despite the Apex Court clarifying the interplay between resignation and defection proceedings, resignations are still being adopted as a means to avoid defection and disqualification. In such cases, the legislators have found an ingenious way to bypass the law and the Apex court's observations by first resigning from the party membership and then joined another political party. The Court had held that resignations that are tendered after the act of defection has arisen will not save a legislator from disqualification proceedings. By tendering resignations before defecting from parties and thus avoiding the rigor of the judgment, legislators have found an ingenious way to bypass the intent of the law. Like the Apex Court recognized, resignation is a right of the legislator and nobody can be forced to complete their term at the office but because of this modus operandi, the entire purpose of the 10^th Schedule seems to be frustrated.

The fourth major loophole in the law is that it lays down that a legislator who has defected will be disqualified from the membership of the legislature without specifying what exactly disqualification entails. There is no legislative clarity on the time period of this disqualification and the effect, if any, on subsequent by-elections held. Thus, it can be seen that defectors who have been disqualified are contesting by-elections and getting elected again, and bypassing the intent of the law to punish defectors. In 2019 the Supreme Court of India in the case of the Karnataka Disqualification Case had held that disqualification under Tenth Schedule does not lead to a bar upon legislators to contest by-elections during the remaining tenure of the incumbent Legislative Assembly. The Constitution provides that the consequence of defection is disqualification and it has long been argued that for the 10^th Schedule to act as an effective deterrent the disqualification should extend to the entire election cycle of 5 years and a ban on contesting by-elections.

A fifth major loophole is that pre-poll alliances are not treated as a 'political party' under the 10^th Schedule. This has led to instances of political parties not going through with pre-poll alliances post declaration of electoral results. Though it is permissible for parties to form post-poll alliances, not treating pre-poll alliances defeats to the voters' wishes who voted on the basis of pre-poll alliances. It encourages post-poll shifting of allegiances en-masse depending on the results of the election leading to horse-trading and political instability. Another criticism of the way Anti-Defection Law has been framed is that it leaves no room for legitimate dissent. Since the 10^th Schedule punishes every act of voting against party line as 'defection' it forces legislators to vote in line with party whip/ command. Experts have argued that it forces legislators to ignore their own conscience and the interests of the electorate. It encourages uniformity in the line of thought expressed in Parliament and leaves no room for legitimate dissent and diversity of opinion.

These loopholes and grey areas in the way the 10^th Scheduled has been envisaged are one of the reasons why the Anti-Defection law hasn't entirely been successful in curbing the menace of defections. The Anti-Defection law is essentially trying to find a legal solution to a political problem and as long as defections are a politically acceptable method of winning elections, no matter how stringent the provisions of an anti-defection law are, it will not act as an effective deterrent. After all, a law is only as good as the people who follow it or skirt it. This is not to argue that merely because legislators have found ingenious ways to bypass the intent of the Anti-Defection law it be abandoned altogether. There are certain changes that need to be made to address the loopholes and grey areas along with working towards de-normalizing engineered defections.

First, in order to introduce objectivity in decision-making on disqualification pleas, the decision-making power must vest with a non-partisan authority like the President or the Governor on the Election Commission's advice, as is done in the case of disqualification on grounds of office of profit. The National Committee for Review the Working of the Constitution, 2002 had recommended that the power to decide questions as to disqualification on the ground of defection should vest in the Election Commission instead of in the Chairman or Speaker of the House concerned. A similar solution was suggested by the Supreme Court in Keisham Meghachandra Singh vs Speaker, Manipur Legislative Assembly that the Parliament should amend the Constitution to provide for an independent mechanism, such as a Permanent Tribunal headed by retired judges, to decide disputes under Tenth Schedule.

Second, the time period during which disqualification remains in force needs to be specified. In order for the Anti-Defection law to act as an effective deterrent, the disqualification period must extend to ban on contesting by-election and re-appointment up to one election cycle. Third, the 170th Report of the Law Commission has recommended that pre-poll electoral fronts should be treated as political parties under anti-defection law to prevent defection from alliance parties. Fourth, the votes of defecting members should not be counted in no-confidence motions which lead to formation and fall of governments. The National Committee on Review of the Constitution made a similar recommendation that the vote cast by a defector to topple a government should be treated as invalid. This would ensure that any instances of change in political parties are only due to genuine cases of shift in political ideologies and not for the purpose of toppling governments.

The true objective of the Anti-Defection Law to strengthen Indian democracy by providing stable governments can be realised only when the loopholes in the law are addressed and the recommendations implemented.