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Context

We all aspirants are closely observing what has been happening in the state of Maharashtra.

Now the rebel leader has moved the Supreme Court against the disqualification notice issued by the deputy speaker to him and some other rebel legislators, calling the action “illegal and unconstitutional” and seeking a stay on it.

What is Anti-defection Law?

The Anti-Defection Law under the Tenth Schedule of the Constitution punishes MPs/ MLAs for defecting from their party by taking away their membership of the legislature.
It gives the Speaker of the legislature the power to decide the outcome of defection proceedings.
It was added to the Constitution through the Fifty-Second (Amendment) Act, 1985 when Rajiv Gandhi was PM.
The law applies to both Parliament and state assemblies.

Cases consider under the anti-defection law

The law covers three scenarios with respect to shifting of political parties by an MP or an MLA.

(1) Voluntary give-up

The first is when a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House against the wishes of the party.
Such persons lose his seat.

(2) Independent members

When a legislator who has won his or her seat as an independent candidate joins a political party after the election.
In both these instances, the legislator loses the seat in the legislature on changing (or joining) a party.

(3) Nominated MPs

In their case, the law gives them six months to join a political party, after being nominated.
If they join a party after such time, they stand to lose their seat in the House.

Covering independent members

In 1969, a committee chaired by Home Minister Y B Chavan examined the issue of defection.
It observed that after the 1967 general elections, defections changed the political scene in India: 176 of 376 independent legislators later joined a political party.
However, the committee did not recommend any action against independent legislators.
A member disagreed with the committee on the issue of independents and wanted them disqualified if they joined a political party.
In the absence of a recommendation on this issue by the Chavan committee, the initial attempts at creating the anti-defection law (1969, 1973) did not cover independent legislators joining political parties.
The next legislative attempt, in 1978, allowed independent and nominated legislators to join a political party once.
But when the Constitution was amended in 1985, independent legislators were prevented from joining a political party and nominated legislators were given six months’ time.

Powers to disqualification

Under the anti-defection law, the power to decide the disqualification of an MP or MLA rests with the presiding officer of the legislature.
The law does not specify a time frame in which such a decision has to be made.
As a result, Speakers of legislatures have sometimes acted very quickly or have delayed the decision for years — and have been accused of political bias in both situations.

Issues with the Anti-defection cases these days

Generally, when doubts are cast on the CM that he has lost the majority, the opposition and the Governor would rally for a floor test.
Now, this may seem like an administrative act. But loopholes around the law has brought politics into the picture. Let us understand the various ground situations involved:

1) Defection proceeding

A Supreme Court Bench is scheduled to hear an appeal filed by the Rajasthan Assembly Speaker’s office challenging the State High Court order to defer anti-defection proceedings against former Deputy CM.
The petition said the HC has crossed its jurisdiction by asking the Speaker to put off his decision on the disqualification notices issued to dissident MLAs.
The High Court’s interim order granting extended time to rebel MLAs to file their replies to anti-defection notices amounted to a violation of Article 212 (courts not to inquire into the proceedings of the legislature).
The petition said that judicial review of ongoing anti-defection proceedings was limited.
The petition referred to the Constitution Bench judgment of the top court in the Kihoto Hollohan case in 1992 in this context.
Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a prior action would not be permissible.
Nor would interference be permissible at an interlocutory stage of the proceedings, the verdict says.

2) Summoning the house

Rajasthan Governor returning the fresh proposal by the state Cabinet – seeking to convene a session of the Assembly has raised fresh legal questions on the powers of the Governor. But a Constitution Bench judgment of the Supreme Court has held that a Governor is bound to convene a meeting of the Assembly for a floor test on the recommendation of the Cabinet.

Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…”
However, the phrase “as he thinks fit” is read as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the cabinet.
Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.
The Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker (2016) expressly said that the power to summon the House is not solely vested in the Governor.
The court has highlighted that Article 163 of the Constitution does not give the Governor a “general discretionary power to act against or without the advice of his Council of Ministers.
The discretionary powers are limited to specified areas like giving assent or withholding/referring a Bill to the President or appointment of a CM or dismissal of a government that has lost confidence but refuses to quit, etc.

3) Floor test

Now, we know that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority.
In fact, on numerous occasions, including in the 2016 Uttarakhand case, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
In 2016, the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker expressly said that the power to summon the House is not solely vested in the Governor.

4) Time Limit for defection plea

The Anti-defection law does not specify a time period for the Presiding Officer to decide on a disqualification plea.
Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

5) Deciding on merger or split

The Tenth Schedule of the Constitution prohibits defection to protect the stability of governments but does not prohibit mergers.
Paragraph 4(2) of the Tenth Schedule, dealing with mergers, says that only when two-thirds of the members agree to “merge” the party would they be exempt from disqualification.
The “merger” referred to in Paragraph 4(2) is seen as a legal fiction, where members are deemed to have merged for the purposes of being exempt from disqualification, rather than a merger in the true sense.
Major political parties argue that a state unit of a national party cannot be merged without the party being merged at the national level.
However, the Tenth Schedule identifies this dichotomy between state units and national units.
As per Paragraph 4(2), “merger” of a party means merger of a legislative party of that House and not the national party.

Yet another feature: ‘Resort’ Politics

The sight of legislators being packed off in luxury buses, and lodged in comfortable, even luxurious, hotels and resorts, has become a common feature of Indian politics.
It usually happens when a state government is in crisis, when a crucial election for a Rajya Sabha seat is underway and numbers are fluid, or when a rebellion is underway to change the regime in a state.
A political party — or the rebel faction — then rushes to consolidate the legislators who are in its favour.
The objective is to ensure that these legislators don’t succumb to temptations and inducements offered by the other side, and instead, remain under constant surveillance.
The method then adopted is to lock them in, till the crisis is resolved one way or the other.

What we can learn from the ongoing situation?

As recent events have made clear, however, the Tenth Schedule is no longer an effective check on the phenomenon of defection, and an urgent reconsideration is required. There are a few reasons why this is so.

1) Loopholes are present in the law itself

The first is that the defecting MLAs have found a way around the restrictions in the Tenth Schedule.
Instead of formally “crossing the floor” or voting against their party in a confidence motion, they resign from the party.
This brings down the party’s strength in the House, and the government is toppled.
A few months later, when by-elections are held, the same MLAs then stand for election on the ticket of the opposition party and are returned to the assembly.

2) Judiciary can ‘conditionally’ intervene

Unfortunately, in their recent judgments, the courts have failed to stop defection practices (although, arguably, the language of the Tenth Schedule does not leave much room to the judiciary).
No matter how well-drafted a constitutional provision is, ultimately, its implementation depends upon constitutional functionaries acting in good faith.
As BR Ambedkar pointed out soon after the framing of the Constitution, every constitutional text can be subverted if those charged with running the affairs of government are inclined to do so.

3) Political commitment is under question

In recent times, it has become clear that the major constitutional actors involved in times of constitutional instability — i.e., the governors and the speakers — do not act in good faith.
In every constitutional crisis over the last few years, governors/speakers have acted like partisan representatives of the political party that appointed them, and have flouted constitutional conventions with impunity.
Instances include decisions regarding which party to call first to form the government in a hung house, to order — or refusing to order — floor tests to prove majorities.

4) Horse-trading persists in Indian politics

More recently, the Rajasthan High Court effectively injuncted the Speaker of the Rajasthan Assembly from acting upon disqualification notices, despite clear SC precedent to the contrary.
It can be pointed out that horse-trading of legislators persists.
It has been widely reported that huge sums of money are offered to MLAs to desert their parties and bring down the government.

5) Role of Legislators is being compromised

The anti-defection law has restrained legislators from effectively carrying out their functions.
In a parliamentary system, legislators are expected to exercise their independent judgement while determining their position on an issue.
The choice of the member may be based on a combination of public interest, constituency interests, and party affiliations.
This fundamental freedom of choice could be undermined if the member is mandated to vote along the party line on every Bill or motion.

6) Accountability of the government is compromised

The anti-defection law deters legislators from holding the government accountable for its actions.
One of the key features of parliamentary democracy is that the government is accountable for its decisions.
However, the anti-defection law deters a legislator from his duty to hold the government accountable, by requiring him to follow the instruction of the party/coalition on almost every decision.

7) Overall decision making is hindered

The anti-defection law leads to major decisions in the legislature being taken by a few party leaders and not by the larger body of legislators.
This implies that anyone who controls the party leadership can issue directions to all legislators.
Thus, voting in the House will be as per the wishes of a few party leaders/ coalition leader rather than the beliefs of all legislators or the need for urgency.
Consensus if often dictated against which democratization within political parties is sought.

8) Clueless voters are the ultimate losers

The anti-defection law breaks the chain of accountability between elected representatives and the voter.
The legislator would have to justify his decision if he differs from such a view.
If he dissented from the party line, he would lose his seat and would be unable to work for the citizens’ interests on other issues.
This further reduces the accountability of elected representatives to citizens.

Article 164(1B)

A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.

Need for urgent attention to Article 164(1B)

This allows for the toppling of governments by inducements of various kinds.
The motivation is that a fresh election allows the disqualified member to be re-elected.
He then becomes a member of the assembly once again, as its term is not over and can also be appointed a minister.
Under Article 164(1B), such a defection has no real consequences.

Way forward

Ensure impartiality of Speaker: Speakers, when elected must resign from the party to which they belong.
At the end of their term, there should be a cooling-off period before they can become members of any political party.
Omit Paragraph 4 through Amendment: Paragraph 4 of the Tenth Schedule should be omitted by moving a constitutional amendment.
Make disqualification for 5 years: All those disqualified under paragraph 2 of the Tenth Schedule should neither be entitled to contest elections nor hold public office for five years from the date of their disqualification.
Article 164(1B) should be omitted by moving a constitutional amendment.
Set time limit to decide petition for disqualification: All petitions for disqualification of members under paragraph 2 of the Tenth Schedule should be decided, by adopting a summary procedure, within a period of three months.