Anti-Defection Law

Context (HT I TH I LL): The Maharashtra Legislative Assembly Speaker has refused to disqualify 16 MLAs of the Eknath Shinde faction and declared the Shinde faction real Shiv Sena.
The 10^th Schedule of the IC gives the power of adjudication to the Speaker, a political appointee.
The Presiding officer functions as a tribunal while adjudicating disqualification issues; this has been under question for a long time.

Anti-defection law

It lays down the process by which legislators may be disqualified on the grounds of defection based on a petition by any other member of the House.
The decision regarding disqualification is referred to the Chairman or the Speaker of such House, and their decision is final.
The law applies to both Parliament and State Assemblies.

Defection

Defection is “to abandon a position or association, often to join an opposing group”.
When a member of a particular party abandons their loyalty towards that party and provides their support (in the form of his vote or otherwise) to another party.

Defector

A defector is a political person who gives up his political party and joins other alliances for benefit.
This term also applies to anyone who switches loyalty to another religion or sports team.

Relation between Anti-Defection Law and the 10^th Schedule

The 52nd Constitutional Amendment Act, 1985, was brought in the name of the ‘Anti-Defection Bill’ and inserted the 10th Schedule in the IC.
This Act Amended Articles 101, 102, 190 and 191 of the IC regarding vacation of seats and disqualification from membership of Parliament and State legislatures.
These articles are for the disqualification of MPs under Article 102(2) and MLAs under Article 191(2).

History of the 10^th Schedule

By the Constitution’s 35th Amendment Act in 1975, a Tenth Schedule was added.
A new Article 2A was inserted in the IC, and Sikkim was associated with the Union of India.
On 16^th May 1975, Sikkim officially became the 22nd state of the Indian Union through the 36th CAA and the monarchy was abolished.
Article 2A, added by the 35th Amendment Act, was repealed by the 36th Amendment Act and 10^th Schedule was also omitted.
The Constitution (Fifty-second Amendment) Bill, 1985 again added a New 10^th Schedule related to the Anti-Defection Law.

Features of Anti-Defection Law

Grounds for Disqualification

If the Legislator voluntarily gives up their membership of a Political Party.
If The Legislator voluntarily joins any other Political Party.
Violation of Instructions: If the legislator votes or abstains from voting in the House contrary to a direction issued by the political party he belongs to, they are deemed disqualified.
An Independent legislator can be disqualified if they join a political party.
A nominated legislator will be disqualified if they join any political party six months after the day they become a legislator.

Exceptions under the Law
- The law allows a party to merge with another party if at least two-thirds of the party’s legislators favour such a merger.
  - Neither the members who decide to merge nor those who stay in the original party will face disqualification.
- The law exempts the presiding officer of the House (speaker, chairman, and deputy chairman) who voluntarily gives up their party membership or rejoins it after they cease to hold that office.
  - This exemption has been provided, given the dignity and impartiality of the office.
- Anti-defection laws do not apply to violations of party whips during presidential polls.

Whip

The concept of the whip was inherited from colonial British rule.
It is often used in parliamentary parlance for floor management by political parties.
A whip is a written order that a political party issues to its members for being present for a crucial vote or that they vote only in a particular way.
A whip is also an essential office-bearer of the party in the Parliament.
In India, all parties can issue a whip to their members.
The office of ‘whip’ is mentioned neither in the IC, in the Rules of the House, nor in the Parliamentary Statute. It is based on the conventions of the parliamentary government.

Powers to disqualify

The Chairman or the Speaker of the House decides to disqualify a member.
If a complaint is received concerning the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.

Role of Speaker as Quasi-Judicial Authority
- The decision of the presiding officer is subject to the Judicial Review.
  - The law initially stated that the decision of the Presiding Officer is not subject to judicial review.
- Kihota Hollohon vs. Zachilhu and Others (1992): SC held that the office of the Speaker is a quasi-judicial authority whose decisions are amenable to judicial review.
- It is also incumbent upon the Speaker of the House to follow the principles of natural justice while adjudicating proceedings under the 10^th Schedule.
- However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
- Shrimanth Balasaheb Patil vs Honble Speaker Karnataka (2019): SC laid down grounds for review of the decision of the speaker-
  1. If it violates constitutional mandate.
  2. If it is made in a mala fide way.
  3. If the decision of the speaker is perverse.
  4. If it is non-compliance with the rules of natural justice.
Changes after the 91st Constitution Amendment Act, 2003
- The provision about exemption from disqualification in case of a split by one-third of legislature party members was deleted. (Only a Merger was possible; a Split was not possible).
- Earlier, a defection by one-third of the elected members of a political party was considered a ‘merger’. The amendment changed it to at least two-thirds.
- It limited the size of the Council of Ministers to debar defectors from holding public offices and preventing defecting legislators from joining the Council of Ministers until their re-election.
- An MP/MLA disqualified for being a member under the 10^th Schedule shall also be disqualified from being appointed as a Minister
  - From the date of their disqualification till the expiry of the membership of Parliament/Assembly,
  - If they contest any election to Parliament/Assembly before the expiry of such period, till the date they are elected.

Number of Council of Ministers at Union & State Level After 91st CAA, 2003

Art 75 (1A): The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per cent.
Art 164 (1A): The minimum strength of the council of ministers, including the CM, in a state as per the Constitution, is 12, and the maximum is 15 per cent of the strength of the Legislative Assembly.
In the case of smaller States like Sikkim, Mizoram, Goa, and Arunachal Pradesh, having 32, 40 and 40 members in the Legislative Assemblies, respectively, a minimum strength of 7 ministers is prescribed

Need of law

Subversion of electoral mandates: Defection is the subversion of electoral mandates by legislators due to the lure of ministerial berths or financial gains.
Affects the normal functioning of government: The defection leads to instability in the government and affects the administration.
Promotes horse-trading: Defection also promotes horse-trading of legislators, which goes against the mandate of a democratic setup.

Significance of the Law

It prevents defections motivated by the lure of office, material advantages, or other considerations.
It made legislators liable to be penalised for their conduct inside (voting against the party’s whip) and outside (making speeches, etc.) the legislature.
It maintains stability in the party system and prevents the threat of toppling the governments.
It promotes party discipline by ensuring the legislators vote for the party whip.
It permits the merger of political parties without disqualification of members.
It strengthens the institution of democracy and keeps corruption in check.

Various Supreme Court Judgments on Anti-defection Law

Kihota Hollohon vs. Zachilhu and Others (1992)

Issue: If the 10th schedule curtails the freedom of speech and expression and subverts the democratic rights of the elected members in parliament and state legislatures.
- SC Judgement: The 10th schedule neither impinges upon the freedom of speech and expression nor subverts the democratic rights of elected members and is thus constitutionally valid.
Issue: Is paragraph 7 of the Schedule barring the jurisdiction of courts in disqualification cases constitutional?
- SC Judgement: The paragraph seeks to change the operation and effect of Articles 136, 226 and 227 of the IC, which gives the HCs and SCs jurisdiction in such cases.
- Any such provision is required to be ratified by state legislatures as per Article 368(2).
Issue: Is paragraph 6 of 10^th Schedule granting finality to the decision of the Speaker/ Chairman valid?
- SC Judgement: To the extent that the provisions grant finality to the orders of the Speaker, the provision is valid.
- However, the HCs and the SCs can exercise judicial review under the IC.

Dr. Kashinath G Jhalmi vs Speaker, Goa Legislative Assembly (1993)

Issue: Can a Speaker review his decision to disqualify a member under the Tenth Schedule?
- SC Judgement: The Speaker of a House does not have the power to review his decisions to disqualify a candidate. Such power is not provided under the Schedule or implicit in the provisions.

G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996)

Issue: If a member is expelled from an old party and joins another party after being expelled, will it be considered to have voluntarily given up his membership?
- SC Judgement: Once a member is expelled, he is treated as unattached in the house but continues to be a member of the old party as per the 10^th Schedule.
- Joining a new party after expulsion amounts to voluntarily giving up membership of his old party.

Ravi S Naik v. Union of India AIR 1994

Issue: Does judicial review by courts extend to rules framed under the Tenth Schedule?
- SC Judgement: Rules under the Tenth Schedule are procedural. Any violation of those would be a procedural irregularity. Procedural irregularity is immune from judicial scrutiny.
Issue: If only resignation constitutes “voluntarily giving up” political party membership.
- SC Judgement: There is a broader meaning of “voluntarily giving up membership”. The inference can also be drawn from the conduct of the members.

Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors. (2007)

Issue: When can a court review the Speaker’s decision-making process under the Tenth Schedule?
- SC Judgement: If the Speaker fails to act on a complaint or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule.
- Ignoring a petition for disqualification is not just an irregularity but a violation of constitutional duties.

Keisham Meghachandra Singh vs. the Hon’ble Speaker Manipur Legislative Assembly & Ors. (2020)

Issue: Do courts have the power to direct speakers to decide petitions seeking disqualification within a fixed time frame?
- SC Judgement: The Speaker should decide 10th Schedule disqualifications within a “reasonable period”.
- ‘Reasonableness’ would depend on the facts of each case, and Unless there are “exceptional circumstances”, disqualification petitions under the 10^th Schedule should be decided within three months.

Various Decisions by the Presiding Officers

Issue: Does public criticism of one’s political party amount to defection?
- Decision of the Presiding Officer: The Speaker held that a person getting elected as a political party candidate also gets elected because of the party’s programs.
- If the person leaves the party, he should return before the electorate.
Issue: Can stories in print or electronic media be taken as evidence of defection?
- Decision of the Presiding Officer: There is no reason why news clippings and stories in the media would be untruthful.

Drawbacks of Anti-Defection Law

By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people.
It emphasises the government’s stability more than ensuring its accountability, which is the crucial feature of Parliamentary Democracy.
The Law dilutes the separation of powers between the Executive and the Legislature – and centralises power in the hands of the cabinet.
The law has also been criticised because it infringes on members’ elemental powers, privileges and immunities in exercising their freedom of speech and action, including voting.
The law does not specify a period for the Presiding Officer to decide on a disqualification plea.
The role of a presiding officer as an adjudicator is questionable, given they are a political nominee.
The incumbent’s challengers do not anticipate by-elections – and as a result, the incumbent candidate has a clear head start.

Various Recommendations to Overcome the Drawbacks

Dinesh Goswami Committee on Electoral Reforms,1990

Disqualification should be limited to the following cases:
- A member voluntarily gives up the membership of his political party
- A member abstains from voting or votes contrary to the party whip in a vote of confidence or motion of no-confidence.
Political parties could issue whips only when the government was in danger.
The President/Governor should decide on the Election Commission’s (EC) advice on disqualification.

Halim Committee on Anti-defection Law, 1998

The words ‘voluntarily giving up’ political party membership’ be comprehensively defined.
Restrictions like the prohibition on joining another party or holding offices in the government be imposed on expelled members.
The term political party should be defined clearly.

Law Commission 170th Report, 1999

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

Election Commission

President/Governor should make decisions under the Tenth Schedule on the binding advice of the EC.

NCRWC/Venkatchalliah Committee, 2002

Defectors should be barred from holding public office or any remunerative political post for the remaining term.
The vote cast by a defector to topple a government should be treated as invalid.
‘Block vote’ proposal to correct lacunae in the concept and implementation of the anti-defection law.
- A group of parties registering itself as a pre-election coalition shall have one block vote during the term of the House.
Deletion of the 10th Schedule provision regarding exemption from disqualification in case of a split.

SC, 2020

Speakers, members of a particular political party, and insiders in the House should not be the “sole and final arbiter” in disqualification cases.
The SC suggested amending the IC to redefine the Speaker’s role as a quasi-judicial authority in handling disqualification petitions under the anti-defection law.
A mechanism outside Parliament or Legislative Assemblies should adjudicate disqualification petitions under the 10th schedule.
A permanent tribunal headed by a retired SC judge or a former HC CJ as a new mechanism.

P.D.T Achary

- There should be a merger between two original political parties.
- 2/3rd of the house members belonging to that party should accept the merger.
- If 2/3rd of the members do not accept it, then the merger doesn’t happen as per the law.

Subhash Kashyap

Party that sets up candidates for the election is the party that has to merge under the 10th Schedule.
2/3rd MLAs of that party should agree to the merger.

Faizan Mustafa

Disagreed and questioned the concept of a merger between the two original parties.
He emphasised the significance of the Legislature Party, which is defined as a ‘group consisting of all the members of that House’, As per the definition in the 10th Schedule.
The merger has to be seen “locally” and not at the national level, and nowhere does the Tenth Schedule talk about how a ‘national party’ or a ‘regional party’ should split.

Previous Similar case

In 2019, the Vice President (RS Presiding Officer) issued orders to “merge” the Telugu Desam Party (TDP) with the ruling BJP in Rajya Sabha after four of TDP’s five MPs defected.
TDP argued that a “merger” can only occur at the party’s organisational level, not in the House.

Regulation of defection in some countries

Bangladesh: A member shall vacate his seat if he resigns from or votes against the directions given by his party. The Speaker refers the dispute to the Election Commission.
Kenya: A member who resigns from his party has to vacate his seat. The Speaker decides, and the member may appeal to the High Court.
Singapore: A member must vacate his seat if he resigns or is expelled from his party. Parliament decides on any question relating to the disqualification of a member.
South Africa: The Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party that nominated him.
USA, UK, Australia, Canada: No law on Defection.
Several democracies have not adopted an anti-defection law, even though legislators often switch to the other side.
In the U.K., Australia and the U.S., parliamentarians and senators often take positions contrary to their parties or vote against the party’s view yet continue within the same party.