Debating Anti-Defection Law
*Anviti Chaturvedi
The Constitution provides various grounds on which legislators, both Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs), may be disqualified from the legislature. One of the grounds of disqualification is the ‘anti-defection’ law. Under this law, legislators are expelled from Parliament and State Legislative Assemblies if they change their party after being elected or if they disobey the directions of their party leaderships.By implication, it strengthens the control of political parties over individual legislators. It was enacted in 1985 as the Constitution (52nd Amendment) Act, 1985 to deal with the problem of political defections.
What are political defections?
In a parliamentary democracy that is based on a multi-party system, legislators are elected on a party ticket, or as independent candidates. Political defection is the act of a legislator transferring allegiance from the party on whose platform he was elected to that of another political party.1 In democracies where the party system is relatively weak, political defections may be punished to encourage party discipline and cohesion, and to discourage switching of parties by legislators for purposes of seeking patronage, influence or public office.2
India has now had over three decades of experience with the anti-defection law. This paper explains the anti-defection law as it stands today, presents the Indian experience of implementing this law, and addresses the various merits and demerits of having such a law in a parliamentary democracy.
India’s Anti-Defection Law
India’s anti-defection law is captured in Articles 102 (2), 191(2) and the 10th Schedule of the
Constitution. These provisions lay out the grounds and procedure for disqualifying legislators on account of defection, in both Houses of Parliament, State Legislative Assemblies and State Legislative Councils. This means there is a preference for political stability over freedom of speech, dissent and conscience.
There are three types of legislators in Parliament and State Legislative Assemblies: (i) members belonging to political parties, (ii) independent legislators, and (iii) members nominated by the President
(for example, Lok Sabha has two Anglo Indian nominees and Rajya Sabha has 12 nominated members who have special knowledge or experience in the fields of literature, science, art or social service).
With regard to a member who belongs to a political party, the 10th Schedule says that the following two grounds will be considered as grounds for defection: (i) voluntarily giving up membership of their political party, or (ii) voting or abstaining from voting contrary to any direction of their political party (i.e. voting to dissent with his party). The law provides room for dissent only in two situations: if the member takes prior permission from his party, or if the action is condoned by the party within 15 days from the voting. In such cases, he will not be considered a defector. Note that a member is said to belong to the political party by which he was set up as an election candidate. If a member is found to have defected, he will be disqualified from the legislature.
Nominated members have the option of joining a political party within six months of their nomination.
If they do so they will be treated as ordinary members of that party. However, if they choose to join a political party after six months, they will be disqualified as members of the House. Similarly, with regard to independent members, joining a political party after election will lead to disqualification on the ground of defection.
While the above framework broadly lays out what is considered to be defection in the country, it is important to note the exceptions to the general rule as well. Firstly, the 10th Schedule permits a
Speaker or Deputy Speaker of Lok Sabha, Deputy Chairman of Rajya Sabha, or presiding officers of the State Legislative Assemblies and Councils to resign from their party and rejoin it after completion of their tenure, without incurring disqualification. Secondly, it permits a party to merge with another party if two-thirds of its members in the legislature vote for the merger. Thirdly, the law originally permitted a split in a party if one-third of its members in the legislature were in favour of the split but this provision was removed in 2003.3 The purpose of removing it was to address bulk defections that continued to take place in the country.
Another important question is who decides whether a legislator is subject to disqualification under the anti-defection law. This power vests with the Speaker or Chairman of the House, and their decision is considered as final. The 10th Schedule also deals with a scenario when there is a defection by a Speaker or Chairman. In such cases, the House may elect another member to decide the question, and this member’s decision is final. The 10th Schedule also says that no court shall have jurisdiction with regard to any matter related to disqualification under the Schedule. However, this provision was struck down by the Supreme Court (see discussion below) allowing courts to retain judicial review in these matters.
The Indian Experience: Interpretation of the Law by Courts and Presiding Officers
In the last three decades, enforcement of the anti-defection law has raised some challenging questions and issues. These include key issues related to actions which come under the ambit of defection, implications of having an anti-defection law in a parliamentary democracy, and the role of presiding officers and courts in deciding defection matters. Some of these issues have been discussed below.
Does the Anti-Defection Law Violate Freedom of Speech and Expression of Legislators, and Principles of parliamentary Democracy?
In the case of Kihoto Hollohan vs Zachillhu, it was argued that the 10th Schedule is destructive of the basic principles and values that are necessary for the sustenance of parliamentary democracy, such as the freedom of speech, right to dissent and the freedom of conscience.4 The petitioners argued that these freedoms are guaranteed under the Constitution, and must not be interfered with.
However, the Supreme Court rejected this challenge, on the ground that the law is targeted at addressing unprincipled defections, which cannot be protected under freedom of conscience or the right to dissent or intellectual freedom.
What is the Role of Presiding Officers in Context of Anti-Defection Law?
The 10th Schedule provides presiding officers of legislatures with the power to decide cases of defection. However, it has been noted that as the Speaker is dependent upon continuous support of the majority in the House, he may not satisfy the requirement of an independent adjudicating authority.5 In the past, decisions of the Speakers with regard to disqualifications have been challenged before courts for being biased and partial.6 Several expert committees and commissions, including the Dinesh Goswami Committee (1998), Commission to Review the Constitution (2002) and the Law Commission (2015) have therefore recommended that defection cases must be decided by the President or Governor for centre and states respectively, who shall act on the advice of the
Election Commission. This is the same practice that is followed for deciding questions related to disqualification of legislators on other grounds, such as holding an office of profit or being of unsound mind, under the Constitution.7 However, note that the Supreme Court has upheld the provision granting the presiding officer the power to take these decisions on the ground that,
“The Speakers/Chairmen hold a pivotal position in the scheme of parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to take far reaching decisions in the functioning of parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such constitutional functionaries should not be considered exceptionable.”
Can the Courts Review Decisions of the Presiding Officers Regarding Anti-Defection?
Note that the 10th Schedule originally barred courts from exercising jurisdiction in anti-defection matters, and declared the Speaker’s decision as final. However, the Supreme Court has struck down the provision barring jurisdiction of courts as unconstitutional.4,8 It held that this bar interferes with Articles 136, 226 and 227 of the Constitution that give the Supreme Court and the High Courts power to exercise judicial review. The court reasoned that in such a case the provision ought to have been ratified by one-half of state legislatures as per Article 368 of the Constitution. Without ratification by states, it held the provision to be invalid. Therefore, the courts may continue to
exercise judicial review over decisions of presiding officers in these cases, but only on limited grounds (eg. mala fide exercise of power or non-compliance with principles of natural justice).4
What Constitutes Voluntarily giving up Membership of the Party?
One of the grounds of disqualification is ‘voluntarily giving up membership’ to one’s political party.
Given that this phrase has not been defined, courts and presiding officers have had to deal with how to interpret its scope. Does it require an explicit resignation or not? The Supreme Court has held that even in the absence of a formal resignation, an inference can be drawn from the conduct of a legislator that he has voluntarily given up membership to his political party.9 In the same case, the
Court also permitted the Speaker to draw an inference based on photographs published in newspapers and statements made by members. There have been cases thereafter where the Speaker has relied upon newspaper reports to make such inferences. For example, the Speaker of Lok Sabha disqualified a member of the Bahujan Samaj Party based on newspaper reports that he had encouraged people to vote for the Samajwadi Party (SP) in a public meeting of the SP.10
The Balancing Act: Merits and Demerits of an Anti-Defection Law
India’s experience with enforcing the anti-defection law has been a complex and challenging one. However, its broader implications can only be evaluated when one analyses the merits and demerits of having such a law in a parliamentary democracy.
An anti-defection law recognizes the role of political parties in a parliamentary democracy. This is premised on the assumption that when elections happen, it is the political parties that go before the electorate with particular programmes or manifestoes, set up their candidates and spend funds on election campaigning. When these candidates get elected, political propriety demands that they continue to support the party and its policies, promoting party discipline. Further, it has been argued that the strength of a political party depends upon the strength of its shared beliefs. Public confidence in a party may be undermined if different members of a party are found holding disparate opinions on important legislative and policy issues.4 In India, prior to the 1985 anti-defection law, there was no mention of political parties in the Constitution.
The other important justification for having an anti-defection law is to reduce political corruption and bribery, and ensure that there is some degree of stability in our governance institutions. It has been noted that often legislators are offered ministerial positions, or personal benefits, to help topple the government of the day by defecting from their political party. In the 1960s, after the Fourth General
Election in India, this problem was highlighted for the first time by an expert committee set up under the Chairpersonship of the former Home Minister, Mr. Y. B.Chavan to study the issue of defections.11 The committee noted that of the 210 defecting legislators in the states of Bihar, Haryana, Madhya
Pradesh, Punjab, Rajasthan, Uttar Pradesh and West Bengal, 116 were provided ministerial berths in the newly formed governments. The committee expressed concern at the indifference of the defectors toward political propriety and public opinion.4
However, what are the costs of having an anti-defection law? Firstly, it interferes with the freedom of speech and expression of a legislator. A legislator is guaranteed this freedom under various provisions of the Constitution.12 The anti-defection law curbs this right by mandating that all members must vote strictly on party lines, and in complete obedience to party whips. By doing this, it takes away the ability of a legislator to vote according to his conscience. It further prohibits voicing dissent against his party’s positions and policies, except through intra-party debate. An important question to ask here is that what is the incentive for a legislator to research, think and reason through issues debated in Parliament if he cannot vote in line with his judgement and opinions?
Secondly, an anti-defection law is incompatible with fundamental tenets of a parliamentary democracy. A parliamentary democracy envisages that matters of legislation and policy must be discussed and debated in a legislature. Governments must then respond and defend their legislation and policy, in light of the criticisms raised and alternatives proposed. However, the question is that if votes cannot be altered on the basis of these debates and discussion, what is the purpose of discussing and debating issues in Parliament?13 Further, prohibition against dissent may undermine the role of Parliament as an effective check on the executive. Take the example of a legislature with the government in clear majority. Once a whip is issued by the ruling party in such a House, there can be no dissent or disapproval voiced by any of the members of the party having a majority. This may have a deleterious impact on government accountability.
Another important cost of an anti-defection law is its impact on the accountability of legislators to their constituencies. Elections in India take place under the first past the post system. Under this system, the candidate who gets the highest number of votes in a geographical constituency is elected from that constituency. If the constituency is dissatisfied with the performance of this person in the next five years, they can vote him out in the next election. The anti-defection law breaks this accountability link between the elected representative and the voter. Legislators can now say that they voted in a particular manner because their party required them to do so. Their justification can be that they exercise no control over their vote and therefore ought not to be held accountable for it. For example, if a voter who believes that FDI in retail is harmful to his interests asks the MP to justify his support on the issue, the MP may say he had no choice given the anti-defection law. If he dissented from the party line, he would lose his seat, and would be unable to work for the electors’ interests on several other issues.
The anti-defection law also considerably diminishes the role of an MP in Parliament to that of a person who only follows orders of the party whip. Take a situation when there is no anti-defection law, and the government is required to win the support of the House for its various decisions and policies. Not only would the ruling party have to win the support of the opposition MPs in such a case, but also of its own MPs. By contrast, under the anti-defection law regime, there is no need to develop support of majority of the MPs.
Another question to consider is whether the law has been successful in addressing political defections in India.Whips have been regularly defied both at the centre and states when it comes to important votes and issues affecting government stability. For example, recently in Uttarakhand 9 MLAs of the ruling party sided with the opposition in demanding a counting of votes on an Appropriation Bill that could have potentially led to the downfall of the Congress government.14 Similarly, about 20 rebel MLAs from the ruling party in Arunachal Pradesh wrote to the Governor expressing lack of confidence in their own government in October 2015; 14 of them were later disqualified by the Speaker on grounds of defection.15 Even at the centre, during the confidence vote in July 2008, 21 Members of Parliament defied the whips issued by their parties.16 Therefore, the irony is that while the anti-defection law has destroyed incentives and means for honest and open parliamentary debate to continue in the country on key legislative and policy issues, it has not been able to address the issue of defections and political stability. It may also be important to note that the practice of issuing whips is common, and does not only apply to contentious debates, further stifling debate. In light of this, one needs to question the utility of continuing with the anti-defection law.
International practice is also telling in this regard. Currently among the 40 countries that have an anti-defection law, there is no major country from North America or Europe. More importantly, of these 40 countries, only six have a law that mandates legislators to vote according to party diktat. The remaining countries only disqualify legislators if they are found to resign from their party or be expelled from it. The six countries that deprive legislators to vote according to their will and conscience are India, Pakistan, Bangladesh, Guyana, Sierra Leone and Zimbabwe.17 In India, a private member
Bill was introduced in 2010, that looked to restrict the applicability of the anti-defection law to motions of no-confidence against the government, adjournments motions and Money Bills, i.e. motions which could lead to the fall of the government if it loses the vote.18 While this Bill has now lapsed, its framework could be looked upon as an alternative to India’s current anti-defection law.
Such a framework could be a possible ‘middle ground’ in the objective of balancing the two objectives: addressing political defections and encouraging open and honest debate in our parliamentary democracy.
Conclusion
The debate around the anti-defection law boils down to a central question that must be grappled with in a parliamentary democracy: what is the role of a legislator? Is a legislator a servant of a party who must obey every direction and command of the party, without exercising any free thought?
Or is the role of a legislator to be an ambassador of his constituency voters by being a mouthpiece for their concerns, interests and opinions? Or is a legislator meant to be an elected representative of the country who must exercise his own conscience, reason and judgment to represent the best interests of the nation?
The argument that Parliament is a forum for MPs to debate and decide issues in national interest was raised as far back as 1774 by Edmund Burke.19 He, in fact, added that an MP would be letting down his country if he did not exercise his own judgment on matters of legislation and policy and only pressed for the interests of his voters. The concept of an anti-defection law is incompatible with this understanding of a parliamentary democracy.
*Anviti Chaturvedi is an analyst with PRS Legislative Research. She focuses on strategic, security, environment and tribal affairs related sectors.
