This article is written by Nishtha Vallecha of 5th semester of Amity University Chhattisgarh
Abstract
Anti-defection laws are legislative measures adopted by many democratic countries to curb defection and maintain political stability within their parliamentary systems. This abstract examines the significance, evolution, and impact of anti-defection laws in upholding the integrity of democratic processes. The paper outlines the historical context of defection and its detrimental effects on the functioning of democratically elected bodies. It highlights the rationale behind introducing anti-defection laws as a means to protect the people’s mandate and ensure that elected representatives remain true to their party affiliations and electoral promises. Drawing upon comparative analyses from various countries, the abstract evaluates the effectiveness of these laws in preventing defection, fostering party discipline, and reducing political opportunism. Additionally, it delves into the criticisms and challenges faced by anti-defection laws, including potential infringement of legislators’ freedom of conscience.
Keywords: Political Stability, Political Manipulation, Anti-defection, Ethical Governance
Introduction
In a vibrant democratic system, the smooth functioning of the government relies heavily on political stability and the ability to pass legislation without hindrance. However, as power dynamics shift and political motivations evolve, instances of defection among elected representatives can pose a serious threat to the integrity of the democratic process. To counteract this menace and preserve the essence of democracy, many countries have implemented Anti-Defection Laws.
Anti-Defection Laws, also known as Anti-Party Hopping Laws, are legal provisions aimed at preventing elected officials from switching their allegiance to other parties after being elected to office. These laws play a crucial role in maintaining the sanctity of democratic principles, promoting party discipline, and upholding the mandate given by the electorate.
The genesis of such laws can be traced back to the growing concern over the misuse of political power and the adverse impact defections have on the effective functioning of legislative bodies. Prior to the introduction of these laws, legislators were often lured by inducements or tempted by political incentives to abandon their party affiliations, leading to frequent changes in the composition of governments and undermining the stability of the nation.
By enacting Anti-Defection Laws, countries aim to foster a sense of accountability, transparency, and responsibility among their elected representatives. These laws deter opportunistic defections and encourage elected officials to prioritize the interests of their constituents over personal gains or external influences.
Throughout this discourse, we will delve deeper into the various aspects of Anti-Defection Laws, their evolution, challenges, and the impact they have on the democratic landscape of different nations. It is essential to recognize the significance of these laws as a means to fortify democracy and protect the will of the people in a rapidly changing political environment.
Objective of anti-defection laws
The primary objective of Anti-Defection Laws is to maintain the stability and integrity of the democratic process by curbing opportunistic defections among elected representatives. These laws aim to foster party discipline and ensure that elected officials remain true to the mandate given to them by the electorate during the electoral process.
1. Protecting the Mandate of the People: Anti-Defection Laws seek to protect the trust bestowed upon elected representatives by the citizens. By preventing defections, these laws ensure that the political party or coalition that secured the majority of votes retains its legitimate claim to form the government and implement its agenda.
2. Curbing Political Horse-Trading: These laws are designed to deter political horse-trading and the unethical practice of bribing or enticing legislators to switch their party affiliations in exchange for personal gains or political advantages. By discouraging such practices, Anti-Defection Laws aim to enhance the credibility of the democratic system.
3. Promoting Party Discipline: Anti-Defection Laws encourage party discipline by making it challenging for elected representatives to act against the official stance of their party. This promotes a cohesive functioning of political parties, leading to better governance and effective policy implementation.
4. Ensuring Legislative Stability: Frequent defections can lead to the instability of governments and legislative bodies, resulting in frequent changes in the ruling party or coalition. Anti-Defection Laws work towards preventing such disruptions and fostering stability in the political landscape.
5. Reducing Political Manipulation: By discouraging defections, these laws minimize the scope for political manipulation, ensuring that elected representatives focus on serving the public interest rather than succumbing to external pressures.
In conclusion, Anti-Defection Laws serve as a safeguard to uphold the principles of democracy by preserving the sanctity of the electoral mandate, promoting party discipline, and ensuring political stability. By maintaining the fidelity of elected representatives to their party, these laws strive to create a more accountable, transparent, and functional democratic system.
Defection in India
Defections in Indian politics have always been a source of political instability and uncertainty, diverting attention from governance to governments. The practice of politicians switching parties, known as defection, has a long history in India. The infamous slogan “Aaya Ram, Gaya Ram” emerged in the 1960s as a result of frequent defections by legislators. Even in the early days of the Central Legislature, Shri Shyam Lai Nehru, a member of Congress, changed his allegiance to the British side. Another example dates back to 1937 when Shri Hafiz Mohammed Ibrabim, elected to the Uttar Pradesh Legislative Assembly on a Muslim League ticket, defected to join the Congress.
In the late 1960s, the trend of changing political parties for reasons unrelated to ideology became more widespread in Indian politics. The Chavan Committee Report (1969) revealed that between March 1967 and February 1968, numerous instances of party-switching occurred in several states following the Fourth General Elections. Out of approximately 542 cases of defection over a two-decade period between the First and Fourth General Elections, at least 438 defections took place within a span of 12 months. Among independent candidates, 157 out of 376 elected legislators joined various parties during this period. The lure of holding office played a significant role in legislators’ decisions to defect, as evidenced by the fact that out of 210 defecting legislators from various states, 116 were included in the Councils of Ministers formed through defections.
Overall, defections in Indian politics have historically created an environment of uncertainty and instability, often driven by personal or opportunistic motives rather than ideological considerations.
Evolution of anti-defection laws
The process of enacting legislation to address the issue of defections in India can be traced back to a private member’s resolution introduced in the Fourth Lok Sabha on 11 August 1967 by Shri P. Venkatasubbaiah. The resolution was subsequently discussed in the Lok Sabha on 24 November and 8 December 1967, and in its final form, it was unanimously passed by the Lok Sabha on 8 December 1967.
In line with the sentiments expressed in the resolution, the government established a Committee on Defections under the chairmanship of the then Union Home Minister, Shri Y.B. Chavan. This committee was tasked with examining the issue of defections in depth. On 18 February 1969, the committee submitted its report, which was then presented to the Lok Sabha for consideration.
The evolution of the anti-defection law in India can be seen as a result of these initial steps, starting from a private member’s resolution and culminating in the formation of a committee to investigate the matter. The subsequent report provided valuable insights and recommendations that paved the way for further discussions and the eventual formulation of laws aimed at curbing the problem of defections in Indian politics.
Due to the inadequate solution provided by the Y.B. Chavan Committee’s recommendations, the Constitution (Thirty-second Amendment) Bill, 1973 was introduced in the Lok Sabha on 16 May 1973. The purpose of this bill was to constitutionally establish disqualification on the grounds of defection. The Lok Sabha adopted a motion to refer the bill to a Joint Committee of both houses of Parliament on 13 December 1973, and the Rajya Sabha followed suit on 17 December 1973. However, with the dissolution of the Fifth Lok Sabha on 18 January 1977, the Joint Committee became defunct, and further progress on the bill was halted.
Another attempt to address the issue of defections was made on 28 August 1978 with the introduction of the Constitution (Forty-eighth Amendment) Bill, 1978 in the Lok Sabha. However, opposition from members of both ruling and opposition parties arose at the introduction stage. They raised objections to the alleged misrepresentation of facts in the Statement of Objects and Reasons, claiming that they were not consulted on the provisions of the bill despite the statement suggesting otherwise. Consequently, the Minister withdrew the motion to introduce the bill.
Finally, the Government introduced the Constitution (Fifty-second Amendment) Bill in the Lok Sabha on 24 January 1985. This amendment led to changes in Article 101, 102, 190, and 191 of the Constitution, providing grounds for the vacation of seats due to disqualification of members. The Tenth Schedule, which lays down provisions regarding disqualification on the grounds of defection, was also inserted. The bill was passed by the Lok Sabha and the Rajya Sabha on 30 and 31 January 1985, respectively. The Act came into force on 1 March 1985, while the Members of Lok Sabha (Disqualification on ground of Defection) Rules, 1985, which were framed by the Speaker, Lok Sabha, to implement the provisions of the Tenth Schedule, came into force on 18 March 1986.
Key provisions of anti-defection laws in India
The Tenth Schedule, also known as the Anti-defection Law, contains key provisions to address defections in India:
1. Rule 2[1]: This rule lays down the grounds for disqualification of a member of a House:
a. If a member of a political party voluntarily gives up their membership of that party.
b. If a member votes or abstains from voting in the House against the direction of their political party. However, if the member obtains prior permission or is condoned by the party within 15 days of such voting or abstention, they will not be disqualified.
c. If an independent candidate joins a political party after being elected.
d. If a nominated member of a House joins any political party after six months from the date of becoming a member of the legislature.
2. Rule 3: This rule previously stated that there would be no disqualification if members represent a faction of the original political party resulting from a split. A defection by at least one-third of the members was considered a split and not subject to disqualification. However, this provision was removed by the 91st Amendment in 2003.
3. Rules 4[2] and 5[3]: These rules provide exemptions from disqualification in cases where:
a. A member’s original political party merges with another political party, and the member and others have become members of the other party, or a new party formed through the merger.
b. Members of a political party have not accepted the merger and choose to function as a separate group. For the merger to be deemed valid, not less than two-thirds of the members of the concerned legislature party must agree to it.
4. Rule 6[4]: This rule grants the Speaker or Chairman of a House the authority to decide on the question of disqualification of a member. The decision of the Speaker or Chairman is final in such matters.
5. Rule 8[5]: This rule empowers the Chairman or Speaker of a House to make rules for implementing the provisions of the Tenth Schedule.
The Anti-defection Law aims to curb political defections and promote stable governance by ensuring that elected representatives do not switch parties without a valid reason or defy the party’s directions during voting. The law provides guidelines for disqualifying members who engage in such actions and gives the presiding officer of the House the authority to make decisions regarding disqualifications.
The Constitution (Ninety-first Amendment) Act, 2003, was introduced as the Constitution (Ninety-seventh) Amendment Bill, 2003, in the Lok Sabha on 5 May 2003. After the Standing Committee on Home Affairs, to which the Bill was referred, presented its report, the Bill was passed by both the Lok Sabha and the Rajya Sabha on 16 December 2003 and 18 December 2003, respectively, with some amendments as suggested by the committee. The President gave assent to the Bill on 1 January 2004, and it became the Constitution (Ninety-first Amendment) Act, 2003, which was notified in the Gazette of India on 2 January 2004.
Key provisions of the Constitution (Ninety-first Amendment) Act, 2003:
1. Omission of the provision regarding splits: The Act removed the provision that allowed exemptions from disqualification if members represented a faction of the original political party resulting from a split. With this amendment, defection by at least one-third of the members is no longer considered a split and can lead to disqualification.
2. Disqualification from holding a Ministerial post or remunerative political post: The Act introduced a new provision stating that a member who is disqualified under paragraph 2 of the Tenth Schedule (Anti-defection Law) will also be disqualified from being appointed as a Minister or holding any remunerative political post for the duration of the period starting from the date of disqualification until the date on which their term of office as a member would expire. If the disqualified member contests an election to either House of Parliament or the Legislature of a State before the expiry of the disqualification period, the disqualification continues until the date on which they are declared elected or the expiry of the disqualification period, whichever is earlier.
In summary, the Constitution (Ninety-first Amendment) Act, 2003, made significant changes to the Anti-defection Law by removing the provision regarding splits and introducing a disqualification from holding Ministerial or remunerative political posts for members disqualified under the Tenth Schedule. These amendments aimed to further strengthen the law against political defections in India.
Drawbacks and defects of anti-defection law
There are certain drawbacks and loopholes in the Anti-defection Law (Tenth Schedule) in India:
1. Problem with mergers: Rule 4 of the Tenth Schedule allows for exceptions to disqualification in cases of party mergers. However, this provision is based on the number of members agreeing to the merger rather than the reason behind the defection. This creates a loophole as members who agree to the merger may also be motivated by the availability of lucrative office or ministerial posts in the other party.
2. Expulsions: The law is silent on the aspect of expulsion of members from their political parties. While parties retain the power to expel their members under their party constitution, there is no provision in the Tenth Schedule to address the situation of expelled members. This creates an anomalous situation where expelled members may still be subject to party discipline and whips without enjoying any rights under the party constitution.
3. Voluntarily giving up membership: Rule 2(1)(a) of the Tenth Schedule states that a member is disqualified if they voluntarily give up their party membership. However, it is unclear whether actions such as working against the party’s interests or supporting a candidate from another party, which do not technically amount to giving up membership, can be considered as voluntary giving up of party membership.
4. Wide power to the Speaker: Rule 6 grants significant power to the Speaker or Chairman of the House to decide on disqualification cases. However, the Speaker often remains a member of the party that nominated them for the position, which raises concerns about impartiality. There is no time limit for the Speaker to arrive at a decision, and a party can only move to court after the Speaker announces their decision. Recommendations have been made to give this power to the President or Governor, acting on the advice of the Election Commission, but no amendments have been made to the law accordingly.
5. Scope of judicial review: Rule 7 bars the jurisdiction of courts in matters related to disqualification of members, denying the courts, including the Supreme Court, the ability to review decisions made by the Speaker. This restriction on judicial review has been held to be unconstitutional by the Supreme Court in various judgments. However, no amendments have been made to the Tenth Schedule to address this issue.
6. Restriction on individual stands: Rule 2 curtails the freedom of party members to oppose party actions, policies, leaders, or bills. Members are expected to follow party whips and policies, limiting their ability to dissent. This restricts the principle of representative democracy, where members should be able to express the wishes of the people rather than being forced to obey party commands.
These defects and drawbacks in the Anti-defection Law highlight the need for further reforms to strengthen democratic principles and ensure the law effectively addresses political defections in India.
Conclusion
The primary objective behind introducing the Tenth Schedule in the Indian Constitution was to tackle the issue of political defections. While the law has been moderately successful, it still has some loopholes that prevent it from achieving its full potential. Over the years, various committees have examined the law and provided recommendations to improve it. These committees include the Dinesh Goswami Committee report (1990), Hashim Abdul Halim Committee report (1994), 170th report of the Law Commission of India (1999), Report of the National Commission to review the working of the Constitution of India (2002), Hashim Abdul Halim Committee report (2003), and 255th report of the Law Commission of India (2015).
To enhance the effectiveness of the Anti-defection Law, the government should carefully reevaluate these suggestions and consider making suitable amendments to the existing law. By incorporating the recommendations of these committees, the law can be strengthened and developed to the best possible extent. This would help to address the loopholes and shortcomings identified in the current version of the law and ensure that it better serves its purpose of curbing political defections in India.
Regular reviews and updates of such laws are essential to adapt to changing political landscapes and challenges. By implementing the recommended amendments, the Anti-defection Law can become a more robust and effective mechanism in promoting stable governance and preserving the principles of representative democracy in the country.
[1] Disqualification on ground of defection: tenth schedule of Indian constitution
[2] Disqualification on ground of defection not to apply in case of merger: of tenth schedule of Indian constitution.
[3] Exemption: of tenth schedule of Indian constitution
[4] Decision questions as to disqualification on ground of defection: of tenth schedule of Indian constitution
[5] Rules: of tenth schedule of Indian constitution
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