Anti-Defection Law: A Legal Fiction?

Anti-Defection Law: A Legal Fiction?

The recent political turmoil brewed up in states like Karnataka, Madhya Pradesh, and Maharashtra have raked up the issue of otherwise ignored Anti-defection law. In what has now become the standard operating procedure, several MLAs from the ruling parties are defecting/jumping over the fences with an aim to topple the governments. This formula has been invoked across the length and breadth of the nation, where several state governments are being toppled by reducing the democracy to a sheer number game. The recent high-profile incident in Maharashtra underscores the worrying trend in the world’s largest democracy.

Defections have been part and parcel of India ever since Independence. The 60s and 70s witnessed an alarming level of political corruption that necessitated a regulatory regime to place a lid on defections. The fall of Morarji Desai’s government in 1979, engineered by the defection of 76 parliamentarians, triggered massive public disapproval. Sensing the need, in 1984, the then Prime minister Rajiv Gandhi introduced an Anti-Defection bill in the Parliament which was almost unanimously approved by both the houses and the President. What needs to be appreciated is the fact that this statute has been first in the republic’s history that has accommodated the opposition’s views as well. The main purpose was to preserve the stability of governments by ceasing the defections of legislators.

Despite the initial euphoria of the act, so far, this statute has only been confined to gazettes, failing to live up to its mandate. Before taking a hard look at whether it served or harmed our democracy, first, let’s have a brief look into the statute and its provisions.

What’s the statute about?

To prevent the increasing number of legislators from jumping parties at their sweet will, particularly after the 1967 general elections, the Rajiv Gandhi government in the year 1985 had legislated Anti-Defection act 1985 and added it to the 10th schedule of the constitution through the 52nd amendment in the same year.

Its provisions:

The act laid down a few grounds for disqualification of legislators, which are as follows;

– If an elected member voluntarily gives up her membership of a political party that she belonged to while contesting in elections.

– If she votes or abstains from voting in the House, contrary to any direction issued by his political party.

– If any independent member joins any political party after the elections.

– If any nominated member joins any political party after the end of 6 months from the date of elections.

It also laid down a few exemptions, which are as follows;

– If two-thirds of the legislators of a political party wholesomely decide to merge into another party, the members who decide to join the new party will not face disqualification.

– Any person elected as chairman or speaker of Rajya Sabha or Lok Sabha can resign from his/her party and rejoin the party later after demitting that post.

– The original law allowed parties to be split, only to be outlawed subsequently.

Who is the deciding authority?

The act explicitly states that “Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.” So, it is Chairman in the case of Rajya Sabha and Speaker in the case of Lok Sabha.

Is the decision of the Presiding Officer subject to judicial review? 

The original act insulated the presiding officer’s decision from judicial scrutiny. However, this provision was struck down by the Apex court in 1992, thereby paving the way for the appeals against their decisions in High courts and Supreme Court. The court remarked that while adjudicating cases under this law, the presiding officer functions as a tribunal and hence is subject to judicial review.

How long does it take to decide cases of defection?

Unfortunately, according to the act, no time frame has been mentioned within which the deciding authority has to take the decision. Though the Supreme Court had recently stipulated a time frame of 4 weeks and 3 months in two different cases, instances of presiding officers adhering to the apex court’s guidelines are scant.

How the defections subvert democratic processes?

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Mockery of representative democracy:

it is a travesty of representational democracy as people mostly vote for the candidates based upon the admiration for and the agenda of the political party that they belong to during the elections. Once they defect to some other political party, the representatives no longer represent the will of the people.

Destabilises the governments:

There are more than five examples of governments established through democratic processes being toppled by the defectors in just the last three years. Hence, defection poses a serious threat to political stability. For any nation, a stable political setup is a prerequisite for development. Constant toppling of governments would result in anarchy and policy inconsistency.

Horse trading:

Defections would reduce democracy to a mere number game. Representatives, rather than siding with the public’s will, would indulge in offering themselves for sale. As a result, legislators are increasingly becoming a commodity which can be bought at will.

Crippled governments:

when the threat of defections constantly hangs down the neck of governments, governments cannot function freely. The ruling regimes would spend most of their resources on keeping their flock intact. The ruling parties may have to constantly engage in appeasing its members.

Merits of the Act:

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The act was brought with the right intention to prevent representational democracy from descending into a mere number game. Some of the intended merits of the act were,

a) Provides stability to the democratically elected governments.

b) Provides assurance that governments do not constantly worry about keeping the flock intact.

c) Provides intra-party discipline

d) Ensures the preservation of the public’s will till the next elections.

e) Ensures that legislators adhere to the party’s manifesto.

A mere legal fiction?

All said and done, has the statute lived up to its mandate? The straight answer is a big No. Defections have been engineered unabashedly. Adding insult to injury, most of the defections happen with a sense of impunity. So far, the act has failed dismally in preventing the defections. We shall see the reasons behind the failure.

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Controversial role of the presiding officers

As the presiding officers usually happen to be the ones chosen by the ruling party/coalition, they have been found to be biased and siding with their mother party. As a result, a conflict of interest arises where presiding officers have been invested with the powers to adjudicate defection cases, in which their mother party is the key litigant in most of the cases. Most of the time, the presiding officer abuses the law in favour of her mother party. We’ve seen that in the case of Telangana assembly, Andhra Pradesh assembly, Manipur assembly, etc.

No set time frame:

The act doesn’t specify any set time frame with in which the presiding officers have to adjudicate the defection case. This loophole has often been abused by the presiding officers. They are found to be taking more than a year or taking no action at all when the delay is in the best interests of the ruling party. The Telangana’s assembly speaker hasn’t taken a decision for years.

Condones wholesale defection

As we have discussed earlier, that act exempts the defection if 2/3rd of the legislators of the party jump the ship on a go. So, if the rival camp can poach 2/3rd members, they can go totally Scot free. This is what has happened in the recent political turmoil in Maharashtra.

An escape clause

The act exempts resignations from the party. In other words, a member can resign from the party with impunity. When a member or group of members belonging to the majority party resign en masse, the strength of the legislatures comes down, and the ruling party may lose the majority mark. This method has constantly been used to topple governments.

Judicial errors: 

In 2016, SC ruled that the speaker cannot go ahead with disqualifications if there is an active removal motion pending against her. The defectors may use this judgement as a legal loophole to evade the wrath of the act by merely filing a notice seeking her removal. This judgement was exploited even in the recent Maharashtra crisis when rebel Sena MLAs have filed a notice at the deputy speaker seeking the removal of the speaker.

These provisions in the act have rendered the act entirely toothless. In the above sections, we have seen why this act has failed so far. Now, let us see how the act is riddled with many more associated issues.

Wider net:

The act applies to not just critical bills on which the fate of government is dependent but extends to all the bills. This allows no breathing space for the legislators to assert their individual viewpoints and agency. Also, the act is applicable to even Rajya Sabha and legislative councils, which have no say in the stability of the government.

Antithesis to representational democracy: 

Broadly, the roles of a legislator can be classified into two. One is that they are the agents of the voters of her constituency and are expected to represent and vote according to their wishes and will. The second one is to take part in active discussions during the deliberations of the house and provide insights into the legislation of statutes. The anti-defection act has proved to be a nemesis of representative democracy. The act neither allows the legislator to represent her constituency nor allows her to be a legislator but merely converts them to be an agent of the party who has no individual agency. Look at the contrasting scheme of things in other democracies. During the recent vote on the impeachment of US President Donald Trump, seven members of his own party voted to convict him without having to face any legal repercussions.

A broken chain: 

In a representational democracy, the legislator is accountable to the voters of her constituency, and the government is accountable to legislators. The act breaks this chain of accountability by making legislators accountable to their party. Also, all the legislators have a ready-made justification for their voting choices in the house as they are mandated to tow the party’s line. This nullifies the concept of legislators having to justify to the constituency about their stand on various issues in the house.

Eroding the legislatures: 

When the fate of bills has already been fixed before their introduction in the house, there is little role for legislators in terms of dialogue and debate. One of the primary functions of the legislatures is to subject various bills to thorough deliberations, make requisite changes if needed and then pass the bill after giving due consideration to all the viewpoints emanated in the house. The act has literally eroded the need and incentive for legislators to improve their knowledge and participate in the debates. Rather, all that is expected from them is to vote as per the party’s decision when summoned by the whip.

Non-recognition of splits:

The act doesn’t condone splits as it does with mergers. As a result, there is no leeway for the dissenters to part ways with the party and float a new party even if the party indulges in malpractices.

Judicial interventions:

Taking note of this under-firing act, the judiciary has been few interventions to reinforce the act with periodic judgments. Its judgments over the past here decades have cleared a lot of air, addressing the ambiguity of the law and the legal lacuna in the act. A few of those are,

–   The phrase ‘Voluntarily gives up his membership’ has been given a wider connotation. Supreme Court has adjudged that a member need not necessarily formally resign from her party to be deemed voluntarily giving up the membership. Rather her anti-party conduct would be enough ground to be deemed voluntarily giving up the membership of the party and hence liable to be brought to book under the act.

– In Kihoto Hollohan (1992) casethe presiding officer’s decision was brought under judicial review. Earlier it was insulated by judicial interventions. But later, the apex court struck down this provision and brought the act under the ambit of judicial review. However, courts can enter only after the decision has been made by the officer.

– In the recent Manipur assembly case, Sc had set a deadline of four weeks to decide on disqualification. Similarly, in the Andhra Pradesh assembly case, it had set a deadline of three months.

– Once a member is expelled from the party, she cannot join any other party till the end of tenure.

– Supreme Court, in the Karnataka MLAs case (2019), ruled that the Speaker cannot inquire into the motive of the resignation and cannot reject the resignation citing that it is made out of political pressure.

Law in dire need of over haul:

The recent clarion call given by the Vice-President to reform the anti-defection law has once again underscored the dire need for overhauling of this toothless or dysfunctional act. Time and again, many agencies and committees have suggested various reforms in the act. A few of those are,

1. Dinesh Goswami Committee on electoral reforms (1990):

It recommended that the application of law should be confined to confidence/no-confidence motions. This would give the legislators much-needed breathing space to perform their constitutional duties without any axe constantly hanging to their necks. This would enable them to represent their people, exercise their individual agency and share their valuable insights during the legislating processes.

2. Law Commission (170th Report, 1999): 

  • The provisions regarding to mergers should be scrapped. The rival factions to incumbents have evolved a pathway to subvert the law by exploiting its loophole, i.e., an exemption to merger provided that 2/3rd members agree to merge. It was this loophole that has resulted in the latest crisis in Maharashtra. Mergers shouldn’t be permitted.
  • It has reiterated the Dinesh Goswami commission’s remarks that this law should be invoked only during the instances when the survival of the government is threatened.

3. Election commission:

It has recommended that the adjudicatory authority to decide on disqualification should be handed over to the President/Governor, who shall act on the binding advice of the Election commission. This shall insulate the law from political biases, which is weighing it down since its inception. The presiding officer functioning as the adjudicating authority would result in conflict of interest as the party that the presiding officer hails from is often the primary litigant.

4. Constitution review committee (2002): 

  • The vote casted by the defector to topple the government should be invalid. This would go a long way in maintaining the stability of governments and would prevent a lot of ‘aayaram gayarams.’ When their votes are invalid, there wouldn’t be any incentive for them to jump the ship.
  • The defectors should be barred from holding any public office or any remunerative political posts till the expiry of five years from the date of their disqualification. As of now, the act only debars them till their re-election. As a result, the defectors resign and immediately stand in elections and bag hefty posts in the government headed by the party they have jumped to.

5. Supreme court:

  • The strength/numerical figures of the party should be proved on the floor of the house, not at the governor’s bungalow. This would ensure that Governors wouldn’t accrue undue benefit to the ruling regime.
  • The disqualification decision has to be taken within a fixed time frame. In the case of Goa and Telangana, the speaker has remained silent for more than two years without taking any action on the defectors, and the next general elections have arrived. This is a mockery of the law.
  • Justice Verma, in the Hollohan case, remarked that since the speaker depends on the continuous majority support in the house, she cannot be deemed an independent authority. Hence, the powers have to be outsourced to an external independent agency.
  • Supreme Court has asked the Parliament to set up an independent permanent tribunal headed by the retired SC judge to adjudicate disqualification petitions within a specified time.

6. Speaker should be asked to resign from her party before assuming office, and there should be a cooling-off period before she can re-join her party after demitting the office.

7. Onus lies on the parties to strengthen their inner party mechanism to prevent defections. They should be more prudent in picking candidates; only those who are honestly attracted by the party’s ideology should be given the gate pass. If they could evolve systems for people to rise in ranks within the party’s hierarchy purely based on their capabilities, there would be little or no incentive to desert the party.

All the issues we have discussed above converge to a single conclusion that it has harmed our democracy more than it served. When it was passed in the 1980s, it was aimed at curbing the menacingly increasing political dishonesty among officeholders. But as time evolved, political parties have found new pathways to subvert the law, thereby rendering it almost dysfunctional. As a result, it remained a mere legal fiction, which was only existing on paper but not in implementation. Political parties should understand that power isn’t an end in itself. They should rather regard power as the means to serve people. In search of power, representational democracy should be sacrificed. The Supreme court, touted as the guardian of the constitution, cannot remain a mere spectator of the law being turned into a mockery. When other institutions are failing, SC should exercise its exceptional powers under article 142 to plug the loopholes in the laws. Last but not least, it is high time that the general public becomes more vigilant about the opportunist manoeuvres of the defectors and makes sure that the costs of such opportunistic defections are very high. Ultimately, only we, the people, can hold institutions and personnel manning those institutions accountable.

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