Anti Defection Law
Anti-Defection Law: Features, limitations and reforms
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Anti-Defection Law and its Features
Why in the News?
- Numerous examples in recent time exist in the history of Parliament and State Assemblies where MPs or MLAs have defected from their party.
- These activities often led to the frequent falling of governments.
What is Anti-Defection Law?
- The 52nd Constitutional Amendment introduced the anti-defection law through the Tenth Schedule in 1985.
- It aimed at tackling political defections destabilizing governments, especially after the 1967 general elections.
- According to this Schedule, a member of the State Legislature or the House of Parliament who voluntarily resigns from their political party or abstains from voting in the House contrary to the party’s instruction may be removed from the House.
- This voting instruction is issued by the party whip, a member of the parliamentary party nominated by the political party in the House.
Process of Disqualification under Anti-Defection Law
- Petition:
- Any member of the House can initiate the process by filing a petition/complaint with the Speaker (Lok Sabha) or Chairman (Rajya Sabha) alleging defection by another member.
- The Presiding Officer CANNOT initiate disqualification proceedings suo moto and can only act upon a formal complaint.
- Deciding Authority:
- The Speaker of Lok Sabha, the Chairman of Rajya Sabha, or the State Legislative Assembly decides disqualification petitions under the anti-defection law.
- Timeframe:
- The law does not specify a strict timeline for the decision, which has led to criticism due to potential delays.
- Judicial Review:
- The decision can be challenged in courts, ensuring a system of checks and balances.
- The landmark judgment in Kihoto Hollohan vs. Zachillhu and Others (1992) upheld the constitutionality of the anti-defection law and affirmed that decisions regarding disqualification are subject to judicial review.
- Exceptions:
- No disqualification if 1/3rd members of the legislature party split to form a separate group (provision DELETED by the 91st Amendment in 2003).
- Mergers of political parties are allowed when 2/3rd of the members of a legislative party agree to merge with another party.
Three-Test Formula of the Supreme Court:
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Limitations of the Anti-Defection Law
- Dictatorship of Party: The law has been criticized for undermining democratic principles by restricting legislators’ freedom of speech and making them more accountable to party leaders than their constituents.
- Limited Political Choice: The law discriminates against independent members, disqualifying them immediately if they join a political party, while nominated members have a six-month grace period.
- Partial Law: The law needs a more precise timeline for resolving defection cases. It allows large-group defections, fostering opportunistic mergers and “horse-trading”, destabilizing the political system.
- Promotes Defection: It fails to address root causes like intra-party democracy, corruption, and electoral malpractices.
Recommendations on Reforming the Law
- Dinesh Goswami Committee (1990):
- Disqualification should be limited to cases of voluntarily giving up membership or voting/abstention contrary to the party direction only in specific motions.
- Decision on disqualification should be made by the President or Governor based on the advice of the Election Commission.
- Law Commission of India (2015):
- Proposed shifting the power to decide disqualification petitions from the Presiding Officer to the President or Governor based on the advice of the Election Commission.
- Supreme Court in K. M. Singh v. Speaker of Manipur (2020):
- Recommended transferring the Speaker’s decision-making authority over disqualification petitions to an independent tribunal presided over by judges.
- Committee Led by Rahul Narwekar:
- Announced by Lok Sabha Speaker Om Birla to review the nation’s anti-defection law.
PYQ:[2022] With reference to anti-defection law in India, consider the following statements:
Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 [2013] The role of individual MPs (Members of Parliament) has diminished over the years and as a result healthy constructive debates on policy issues are not usually witnessed. How far can this be attributed to the anti-defection law, which was legislated but with a different intention? |
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Anti Defection Law
Political Split and Maharashtra Assembly Speaker’s Ruling
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Political Split and Merger
Mains level: Read the attached story
Introduction
- Maharashtra Assembly Speaker ruled that the ruling faction of a political party was the legitimate and real, having the support of the majority of the party’s MLAs.
Anti-Defection Law in India
- Rise of Political Instability: The late 1970s saw rampant floor-crossing by legislators, epitomized by the phrase “Aaya Ram Gaya Ram” after MLA Gaya Lal’s frequent party changes in 1967.
- Legislative Efforts: Various bills, including the 32nd and 48th Constitution Amendment Bills, were introduced to address defections but lapsed or were not passed.
- Enactment of the Law: The 52nd Amendment in 1985, under Prime Minister Rajiv Gandhi, introduced the Tenth Schedule to the Constitution, embedding the anti-defection law.
Features of the Anti-Defection Law
[A] Disqualification Criteria:
- Members of Political Parties: Disqualification occurs if a member voluntarily gives up their party membership or defies the party’s directive without prior permission, which is not condoned within 15 days.
- Independent Members: Disqualification occurs if they join a political party after election.
- Nominated Members: Disqualification occurs if they join a political party after six months from taking their seat in the House.
[B] Exceptions:
- Merger: A member is not disqualified if their original party merges with another party, and at least two-thirds of its members agree to the merger.
- Presiding Officers: Members who become presiding officers can relinquish party membership and rejoin it after their term without facing disqualification.
[C] Decision Makin:
- Deciding Authority: The presiding officer of the respective House is the authority to decide on disqualification matters, subject to judicial review as established in the Kihoto Hollohan case (1991).
- Rule-making Power: The presiding officer can formulate rules for implementing the Tenth Schedule, subject to the approval of the House.
- Procedure for Disqualification: The presiding officer acts upon a defection case upon receiving a complaint. The accused member must be given a chance to explain, and the matter can be referred to a committee for inquiry.
- Position of Speaker: Party whips do not apply to the Speaker. However, questions of disqualification under the law concerning the Speaker or Chairman are decided by a member elected by the House.
Judicial Interpretations and Election Commission’s Role
- Key Judgments: The Kihoto Hollohan case (1991) made the Speaker’s decision on defection subject to judicial review. Other significant cases include Ravi Naik vs Union of India and G. Viswanathan Vs. The Hon’ble Speaker, Tamil Nadu, which clarified aspects of voluntary membership relinquishment and expulsion.
- Election Commission’s Guidelines: The EC resolves intra-party disputes based on majority support in both organizational and legislative wings and may freeze party symbols in unresolved cases.
Challenges and Criticisms
- Discriminatory Features: The law is criticized for not differentiating between dissent and defection and for its approach to individual versus group defections.
- Absence of Time Limit: The lack of a mandated timeframe for decisions on defection cases has led to manipulation and delays.
- Impact on Democratic Functioning: Critics argue that the law restricts legislators’ freedom and weakens legislative checks on the executive.
Debate on Repeal or Amendment
- Arguments for Repeal: Some argue for the law’s repeal, citing its failure to prevent defections and its hindrance to representative democracy.
- Arguments against Repeal: Proponents believe it ensures government stability, recognizes party systems, and reduces corruption.
- Suggested Amendments: Recommendations for amendments include limiting the law’s scope, enhancing decision-making processes, and promoting intra-party democracy.
Expert Recommendations
- Dinesh Goswami Committee (1990) and Law Commission (170th Report, 1999): Suggested amendments include limiting disqualification and involving the President/Governor and EC in decision-making.
- Constitution Review Commission (2002): Proposed barring defectors from holding public office and invalidating their votes in toppling governments.
- Election Commission’s Proposal: Recommended that decisions under the Tenth Schedule should be made by the President/Governor based on the EC’s binding advice.
Way Forward
- Amending the Law: Amendments should address existing shortcomings, such as defining “voluntarily giving up membership” and removing distinctions in disqualification criteria.
- Enhancing Democratic Functioning: Reforms should focus on promoting intra-party democracy and regulating the use of whips.
- Voter Responsibility: The electorate’s role in holding defectors accountable through the ballot remains crucial.
Conclusion
- Navigating Political Stability and Democracy: The anti-defection law seeks to balance political stability with democratic representation and legislative accountability.
- Adapting to Contemporary Politics: As political dynamics evolve, so must the legal frameworks, ensuring their relevance and effectiveness.
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Anti Defection Law
The hollowing out of the anti-defection law
Note4Students
From UPSC perspective, the following things are important :
Prelims level: anti-defection
Mains level: addressing the shortcomings in the Tenth Schedule
Central idea
The article explores the persistent challenges and loopholes in India’s anti-defection law, particularly focusing on the strategic exploitation of the Tenth Schedule. It highlights instances of group defections destabilizing democratically elected State governments and proposes urgent reforms, starting with the removal of the merger exception, to restore the efficacy of the anti-defection law and prevent its misuse. The complex scenarios in Maharashtra and historical trends underscore the need for a comprehensive legislative response to strengthen the democratic framework.
Key Highlights:
- Eternal Debate: The persistent nature of debates and discussions around political defections and India’s anti-defection law.
- Speaker’s Balancing Act: Maharashtra Assembly Speaker, Rahul Narwekar, navigating the Assembly’s winter session while handling Shiv Sena factions’ disqualification petitions.
Key Challenges:
- Tenth Schedule Critique: Identifying and addressing weaknesses in the Tenth Schedule, allowing for strategic and unpunished political defections.
- State Government Instability: Instances of defections leading to the collapse of democratically elected State governments in Maharashtra, Madhya Pradesh, Manipur, Karnataka, and Arunachal Pradesh.
Key Terms/Phrases:
- Tenth Schedule: Constitutional section housing the anti-defection law.
- Exemptions and Amendments: Two-thirds majority merger provision, 91st Amendment’s omission of the one-third split provision, splitting and merging trends.
- Disqualification Petitions: Filed before legislative Speakers under the Tenth Schedule.
Key Quotes/Anecdotes:
- Strategic Exploitation: Skillful use of exemptions under the Tenth Schedule causing democratically elected governments to crumble.
- Defection Strategies: Instances of splits followed by mergers, highlighting a pattern of exploiting the anti-defection law for political maneuvering.
Key Statements:
- Legislative Response: The removal of the one-third split provision in 2003 as a response to its frequent and strategic misuse.
- Limited Safeguard: The merger exception being the primary safeguard, prompting concerns about its efficacy in preventing group defections.
Key Examples and References:
- Maharashtra’s Complex Scenario: Shiv Sena and NCP factions claiming the status of the original party, forming alliances without actual mergers.
- Surveyed Instances: Instances from Uttar Pradesh and Haryana Assemblies illustrating splits followed by mergers and rapid succession defections.
Key Facts/Data:
- 91st Amendment Impact: Omission of the provision allowing exemption for one-third splits in the original party in 2003.
- Recent Instances: A decade marked by group defections leading to the destabilization of State governments.
Critical Analysis:
- Ailments in the Tenth Schedule: In-depth scrutiny of flaws in the anti-defection law, questioning its effectiveness and the need for reforms.
- Strategic Exploitation: Examining how merger provisions have been strategically used to undermine the stability of elected governments.
Way Forward:
- Deletion of Merger Exception: Urgent removal of the merger exception as a crucial step in addressing the shortcomings in the Tenth Schedule.
- Comprehensive Reforms: Advocating for comprehensive reforms post-deletion to fortify the anti-defection law and restore its intended efficacy.
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Anti Defection Law
Revisiting the Anti-Defection Law: Upholding Accountability in Parliamentary Democracy
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Anti-defection law
Mains level: Anti-defection law needs a relook and The Importance of accountability in
Central idea
- Two recent judgments by the Supreme Court of India have brought attention to the constitutional framework governing the relationship between the executive, legislature, and political parties. While the judgments were unanimous, they present a contradiction in their application. The Delhi case emphasized the importance of accountability of civil services to the elected government, while the Maharashtra case upheld the power of party leadership over legislators, undermining the principles of parliamentary democracy.
Delhi Case: Reinforcing the Importance of Accountability
- Importance of Accountability: The case underscores the significance of accountability in a democratic system. It reaffirms the idea that a government elected by the people must be answerable to them through a triple chain of command: civil service officers being accountable to ministers, ministers being accountable to the legislature, and the legislature being accountable to the electorate.
- Power Distribution: The judgment clarifies the delineation of powers between the Delhi government, headed by the Chief Minister, and the Lieutenant Governor appointed by the central government. It establishes that in matters concerning civil services, the elected government of Delhi should have control and authority, emphasizing the democratic principle of decentralization of power.
- Constitutional Provisions and Democratic Values: The case highlights the significance of adhering to the constitutional provisions and demarcation of powers in a Union Territory like Delhi. It upholds the principles of parliamentary democracy, emphasizing the importance of a government accountable to the people it serves.
- Strengthening Democratic Institutions: The judgment emphasizes the role of institutions in upholding democratic values enshrined in the Constitution. By safeguarding accountability and appropriately allocating powers, it sets a precedent for future cases and reinforces the role of institutions in maintaining a robust democratic system.
What is triple chain of accountability?
- Civil Service Officers to Ministers: The first link in the chain is the accountability of civil service officers to the Ministers. Civil service officers are responsible for implementing government policies and carrying out administrative tasks. They are answerable to the Ministers who oversee their work and provide directions.
- Ministers to the Legislature: The second link in the chain is the accountability of Ministers to the legislature. Ministers are accountable for their decisions, actions, and policies to the legislature, which represents the voice of the people. They are expected to participate in debates, answer questions, present bills, and seek approval or support for government initiatives from the elected representatives.
- Legislature to the Electorate: The third link in the chain is the accountability of the legislature to the electorate. The elected representatives in the legislature are accountable to the people who have chosen them through the electoral process. Legislators are expected to represent the interests and concerns of their constituents, work towards their welfare, and ensure that their voices are heard in the decision-making process.
Maharashtra Case: Undermining the Triple Chain of Accountability
- Interpretation of the Tenth Schedule: The case revolves around the interpretation and application of the Tenth Schedule of the Constitution, which deals with the anti-defection law. The judgment focuses on the distinction between the legislature party and the political party, clarifying the power to issue binding directions to members of the legislature.
- Role of Party Leadership: The judgment reinforces the authority of the political party leadership over the legislature. It establishes that the person in charge of the political party holds the power to issue directions to the members of the party, including MLAs/MPs, and failure to comply can result in disqualification.
- Limitation on Legislators’ Accountability: The judgment raises concerns regarding the accountability of legislators to their voters. By upholding the authority of the political party leadership, it potentially weakens the accountability of legislators to the electorate and emphasizes their accountability solely to the party that fielded them in the election.
- Triple Chain of Accountability: The judgment diverges from the principles outlined in the Delhi case concerning the triple chain of accountability. It suggests that legislators should adhere to the directions of the political party, potentially undermining the daily assessment of the government by the legislature and diluting the accountability of the government to the people.
- Need for Re-evaluation: The judgment indicates the need for re-evaluating the anti-defection law and its compatibility with the principles of parliamentary democracy. It raises questions about the anti-defection law violating the basic structure of the Constitution, calling for a larger bench to examine this issue.
Facts for prelims: Basics
Anti-defection Law
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Contradictory Conclusions: The Problem of the Anti-Defection Law
- The contradictory conclusions arising from the application of the anti-defection law in both the cases:
- Constitutional Position: While the Delhi case emphasizes the accountability of civil services to the Delhi government and upholds the triple chain of command, the Maharashtra case highlights the power of the political party leadership over legislators, as dictated by the Tenth Schedule.
- Incompatibility with Parliamentary Democracy: The Maharashtra case raises concerns about the anti-defection law, which is at the core of the Tenth Schedule, and its compatibility with the structure underlying parliamentary democracy. The anti-defection law’s assumption that any vote against the party direction is a betrayal of the electoral mandate contradicts the principle of representative democracy.
- Legislative Accountability: The Maharashtra judgment reinforces the authority of the political party leadership, implying that legislators are primarily accountable to the party that fielded them, rather than to the electorate. This breaks the triple chain of accountability.
- Impact on Daily Assessment: The Maharashtra judgment’s emphasis on party directions limits the daily assessment of the government by the legislature. If legislators of the party with a majority are bound by party directions, it undermines the meaningfulness of debates, resolutions, and no-confidence motions, as the party leadership controls the votes on every issue, ensuring the government’s victory.
- Electoral Mandate and Voter Decision: The anti-defection law assumes that voters prioritize party affiliation, disregarding other factors such as candidates’ criminal records, assets and liabilities, and educational qualifications. However, voters’ decisions in elections often contradict this assumption, as demonstrated by instances of legislators winning by-elections after switching parties.
Way forward
- Re-evaluation of the Anti-Defection Law: It is crucial to revisit the anti-defection law and assess its compatibility with the basic principles of parliamentary democracy. A thorough examination by a larger Bench of the Supreme Court can help determine if the law violates the basic structure of the Constitution.
- Reviewing the Tenth Schedule: The Tenth Schedule, which forms the basis of the anti-defection law, should be subject to a critical review. This includes analyzing its impact on the accountability of legislators to their constituents and evaluating whether it aligns with the principles of representative democracy.
- Strengthening Legislative Accountability: Efforts should be made to reinforce the accountability of legislators to the electorate. This can be achieved by ensuring that legislators prioritize their constituents’ interests over party directives, thereby fostering a stronger connection between legislators and the people they represent.
- Promoting Informed Voting: Emphasizing the importance of informed voting can help voters make decisions based on factors beyond party affiliation. Providing comprehensive information about candidates, including their track records, assets and liabilities, and educational qualifications, will enable voters to make more informed choices during elections.
- Balancing Party Discipline and Individual Freedom: Striking a balance between party discipline and individual freedom of legislators is crucial. There should be mechanisms in place that encourage healthy debate, dissent, and the ability of legislators to vote based on their own judgment, while still respecting party affiliations.
- Enhancing Parliamentary Debates and Oversight: Efforts should be made to strengthen the role of legislatures in holding the government accountable. This can be achieved through robust parliamentary debates, effective question hour sessions, and rigorous scrutiny of government actions and policies.
Conclusion
- The contradiction between the Delhi and Maharashtra cases underscores the need to revisit the anti-defection law. A larger Bench should re-examine the law’s compatibility with the basic structure of the Constitution, reaffirming the centrality of accountability in parliamentary democracy. This step is crucial to restore the balance between party loyalty and the representatives’ duty to serve their constituents and uphold democratic values.
Also read:
| [Burning Issue] Shiv Sena Party Symbol Conundrum |
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Anti Defection Law
Key Takeaways of SC’s Maharashtra Verdict
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Read the attached story
Mains level: 10th Schedule
The Supreme Court issued a unanimous judgment on various issues related to the split in a political party in Maharashtra in June 2022.
Key Takeaways
Here are the key takeaways from the verdict:
(1) Disqualification
- MLA disqualifications upheld: The Supreme Court did not interfere with the proceedings related to the disqualification of 16 MLAs (who had gone to Dehradun) including Chief Minister.
- Onus on Speaker: The court stated that the issue of disqualification should be decided by the Speaker of the Legislative Assembly as per established procedures in law.
(2) Consideration of Party Constitution
- Political party constitution: The court emphasized that while deciding disqualification pleas, the Speaker must consider the constitution of the political party, which was submitted to the Election Commission (EC) with the consent of both factions.
- Split occurred later: The court clarified that the “split” in the party would no longer be a defense available to MLAs facing disqualification.
(3) Governor’s Role
- Issue over floor test circumstances: The court criticized the then Governor for calling a floor test without sufficient objective material to show that the incumbent government had lost the confidence of the House.
- Must remain politically neutral: The court stated that the Governor should exercise their power within the limits of the law and should not enter the political arena nor interfere in intra-party disputes.
(4) Former CM Resignation
- Should have faced floor test: The court mentioned that erstwhile CM of tripartite government, who led one of the factions, had resigned and did not face the floor test.
- Re-instation was possible: The court held that it could not quash a resignation submitted voluntarily, but if ex-CM had refrained from resigning, the court could have considered a remedy to reinstate his government.
(5) Illegal Appointment of Whip
- The court deemed the appointment of the whip by the split-led faction to be illegal.
- The Speaker should have conducted an independent inquiry to verify the decision of the political party regarding the appointment of the whip.
(6) Distinction between Legislature Party and Political Party
- The court clarified that the legislature party and the political party cannot be conflated.
- The court stated that a political party must be registered with the Election Commission, while the legislature party has independent existence to provide defense to legislators’ actions within the political party.
(7) Concurrent Jurisdiction of Speaker and EC
- The court rejected the contention that the Election Commission was barred from deciding on the party symbol dispute until the Speaker decided the disqualification pleas.
- The court stated that both the Speaker and the EC can adjudicate issues concurrently.
(8) Others
- Nabam Rebia Case, 2016: Additionally, the court referred certain issues related to its judgment in the Nabam Rebia Case to a larger Bench.
- Restrictions on the ousted Speaker: This included the restriction of the Speaker’s powers in issuing disqualification notices to MLAs in the presence of a notice for the Speaker’s removal.
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Anti Defection Law
Role of Whip in Indian Polity
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Political Whip
Mains level: Read the attached story
Central idea: The article aims to demystify the concept of whip and provide clarity on its role and importance in the functioning of state assemblies and parliament in India.
Who is a Whip?
- A whip is an official of a political party whose task is to ensure party discipline in a legislature.
- This means ensuring that members of the party vote according to the party platform, rather than according to their own individual ideology or the will of their donors or constituents.
- Whips are the party’s “enforcers”.
- They try to ensure that their fellow political party legislators attend voting sessions and vote according to their party’s official policy.
- Members who vote against party policy may “lose the whip”, effectively expelling them from the party.
Whips in India
- In India, the concept of the whip was inherited from colonial British rule.
- Every major political party appoints a whip who is responsible for the party’s discipline and behaviors on the floor of the house.
- Usually, they direct the party members to stick to the party’s stand on certain issues and directs them to vote as per the direction of senior party members.
What happens if a whip is disobeyed?
- A legislator may face disqualification proceedings if she/he disobeys the whip of the party unless the number of lawmakers defying the whip is 2/3rds of the party’s strength in the house.
- Disqualification is decided by the Speaker/Chairman of the house.
Limitations of whip
- There are some cases such as Presidential elections where whips cannot direct a Member of Parliament (MP) or Member of the Legislative Assembly (MLA) to vote in a particular fashion.
Types of whips
There are three types of whips or instructions issued by the party
- One-line whip: One-line whip is issued to inform members of a party about a vote. It allows a member to abstain in case they decide not to follow the party line.
- Two-line whip: Two-line whip is issued to direct the members to be present in the House at the time of voting.
- Three-line whip: Three-line whip is issued to members directing them to vote as per the party line.
Need for Whips
- Collective decision-making: The need for a whip arises from the fact that political parties operate on the principle of collective decision-making.
- Fulfill election promises: The whip ensures that the party’s agenda is advanced, and its promises to the electorate are fulfilled, which is essential for the functioning of a healthy democracy.
- Maintain policy cohesiveness: This requires the party to work together as a cohesive unit and ensure that its members vote in a coordinated manner on important legislative matters.
- Address differing opinions: There may be disagreements and differing opinions on certain matters, and this can lead to disunity and chaos within the party.
- Ensure party discipline: To prevent such situations, political parties appoint whips who are responsible for ensuring party discipline and ensuring that all members vote in accordance with the party’s position.
Conclusion
- The whip’s role is therefore crucial in maintaining party discipline and facilitating the smooth functioning of legislative business.
- Without a whip, it would be difficult for parties to ensure that their members vote in a coordinated manner, and this could lead to legislative gridlock and inefficiency.
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Anti Defection Law
Anti-defection Law and The Loopholes
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Tenth Schedule of the Constitution
Mains level: Anti-defection law and the challenges
Central Idea
- On February 17, the Election Commission of India (ECI) allotted the name ‘Shiv Sena’ and the party’s Bow and Arrow symbol to Maharashtra Chief Minister Eknath Shinde’s faction, in effect recognizing it as the original party founded by Babasaheb Thackeray. Strengthening Anti-defection law becomes relevant again.
Background: The most dramatic and unique political crisis
- Division in the party: The political crisis in Maharashtra began last year after a group of 40 of the 55 Sena MLAs walked out of the Maha Vikas Aghadi (MVA) alliance under the leadership of Mr. Shinde, which caused a division in the party.
- Fight of Name and Symbol: Both the Uddhav Thackeray and Shinde sides staked claim to the party name and symbol, each claiming to represent the real Shiv Sena.
- The ECI said that it had based its decision on a test of majority: It said the group of MLAs supporting the Shinde faction got nearly 76% of the votes polled for the 55 winning Shiv Sena candidates in the 2019 Maharashtra Assembly elections, while the Uddhav Thackeray faction got 23.5% of votes.
Exam Spotlight
- The crisis has thrown the spotlight once again on the anti-defection law, whose purpose is to prevent political defections.
What is Anti-defection Law?
- Tenth Schedule: 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.
- Power to the speaker: It gives the Speaker of the legislature the power to decide the outcome of defection proceedings.
- 52nd Amendment Act, 1985: 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.
What was the need to have this law then?
- Vies in favour
- Defection was recognized as an evil that needed to be curbed: Defections cause destabilization and lead to governments falling, which can have negative impacts on the country’s political and economic stability.
- Law helps to stabilise party system: The law helps to stabilize party systems by consolidating control of the party leadership instead of relying on ideological cohesion or ownership by constituent legislators.
- Views against it
- Law would curb freedom of opinion of the representatives: Some people thought that the law would curb freedom of speech and affect the free exercise of opinion by the members of the legislature who are elected by the people.
- Undermines the representative system of democracy: The law effectively does away with the representative system of democracy in India by framing democracy as a contest between factions rather than a system of representation and accountability.
- Limiting the ability of legislators: The law consolidates power in the hands of the party leadership, potentially limiting the ability of individual legislators to represent their constituents’ interests.
How the law is faring today?
- Recent events shows that the law needs to be tightened: The kinds of defections which used to take place before the passing of this law are not taking place now. But recent events show that this law needs to be tightened.
- Third paragraph of tenth schedule was deleted: A little tightening was done earlier by doing away with a split, that is, paragraph three of the Tenth Schedule of the Constitution. It had said, if there is a split in a particular party, and one-third of the legislators move along with the breakaway group, they will not be disqualified. So, split was a defence against disqualification.
- No authoritative interpretation of the law: there is a very disturbing trend, which is to interpret paragraph four (decision on questions as to disqualification on ground of defection) in a particular way, because there is no authoritative declaration of law from the Supreme Court on the exact application of it.
- No timeline fixed for the Speaker: In the 10th Schedule currently, there is no timeline fixed for the Speaker to determine the issue and the purpose of this anti-defection law is defeated.
Conclusion
- People are principal stakeholders in a democracy; parties are merely the institutional intermediaries. Democracy needs stable parties, but controlling legislators removes their representative role. Need of the hour is to fix the loopholes in the system because the continuous cycle of instability adversely affects the people, who are the primary stakeholders in a democracy and suffer the most.
Mains Question
Q. The events of spilt within the political are rising posing a challenge to the Anti defection law In this backdrop discuss the need of Anti defection law?
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Anti Defection Law
Election Symbols Issue in Maharashtra
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Election symbols
Mains level: Political split vs Defection
The Supreme Court has said it would decide the question of referring the battle between a political party leader and Maharashtra Chief Minister over the “real” heir of a political party to a Constitution Bench.
What is the news?
- The Maharashtra CM (who split from its mainstream political party with more than 2/3rd members) claimed over the party and its symbol of bow and arrow.
- The case is now being heard by the Supreme Court.
Why the split leader (the CM) is making such claims?
- One of the cardinal issues, as pointed out by the CJI, would be whether the dissent of split faction, without subsequently forming a new party or merging with another, amounted to a “split” from the original political party.
- The anti-defection law cannot be an “anti-dissent” law.
Issues raised by the apex Court
- The Bench warned that if the split is completely ignoring the political party after being elected then it is a danger to democracy.
Note: For aspirants, one thing is very clear. The Supreme Court will definitely give another landmark judgment in this regard. Arriving at a conclusion is a tight rope walk for the judiciary too. But our judiciary never disappoints!
EC’s powers in Election Symbol Dispute
- The question of a split in a political party outside the legislature is dealt by Para 15 of the Symbols Order, 1968.
- It states that the Election Commission of India’s (ECI) may take into account all the available facts and circumstances and undertake a test of majority.
- The decision of the ECI shall be binding on all such rival sections or groups emerged after the split.
- This applies to disputes in recognized national and state parties.
- For splits in registered but unrecognized parties, the EC usually advises the warring factions to resolve their differences internally or to approach the court.
How did the EC deal with such matters before the Symbols Order came into effect?
- Before 1968, the EC issued notifications and executive orders under the Conduct of Election Rules, 1961.
- The most high-profile split of a party before 1968 was that of the CPI in 1964.
- A breakaway group approached the ECI in December 1964 urging it to recognize them as CPI(Marxist). They provided a list of MPs and MLAs of Andhra Pradesh, Kerala and West Bengal who supported them.
- The ECI recognized the faction as CPI(M) after it found that the votes secured by the MPs and MLAs supporting the breakaway group added up to more than 4% in the 3 states.
Options for ECI
- The ECI in all likelihood can freeze the symbol so that neither of the two sides is able to use it until a final decision is made.
- EC hearings are long and detailed and may take at least six months.
What was the first case decided under Para 15 of the 1968 Order?
- It was the first split in the Indian National Congress in 1969.
- Indira Gandhi’s tensions with a rival group within the party came to a head with the death of President Dr Zakir Hussain on May 3, 1969.
Is there a way other than the test of the majority to resolve a dispute over election symbols?
- In almost all disputes decided by the EC so far, a clear majority of party delegates/office bearers, MPs and MLAs have supported one of the factions.
- Whenever the EC could not test the strength of rival groups based on support within the party organization (because of disputes regarding the list of office bearers), it fell back on testing the majority only among elected MPs and MLAs.
What happens to the group that doesn’t get the parent party’s symbol?
- The EC in 1997 did not recognize the new parties as either state or national parties.
- It felt that merely having MPs and MLAs is not enough, as the elected representatives had fought and won polls on tickets of their parent (undivided) parties.
- The EC introduced a new rule under which the splinter group of the party — other than the group that got the party symbol — had to register itself as a separate party.
- It could lay claim to national or state party status only on the basis of its performance in the state or central elections after registration.
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Anti Defection Law
Important role of vigilant Opposition in democracy
Note4Students
From UPSC perspective, the following things are important :
Prelims level: 10th Schedule
Mains level: Paper 2- Role of Opposition in democracy
Context
Role of Opposition in indispensable in the democracy.
Reasons for adopting parliamentary democracy
- The Indian Constitution adopted the parliamentary system and not the presidential system.
- B.R. Ambedkar provided the rationale for this: “A democratic executive must satisfy two conditions –
- (1) It must be a stable executive and
- (2) it must be a responsible executive.
- Unfortunately it has not been possible so far to devise a system which can ensure both in equal degree.
- Assessment of executive: In England, where the parliamentary system prevails, the assessment of responsibility of the executive is both daily and periodic.
- Daily assessment: The daily assessment is done by members of Parliament, through questions, resolutions, no-confidence motions, adjournment motions and debates on addresses.
- Periodic assessment: Periodic assessment is done by the electorate at the time of the election.
- The daily assessment of responsibility which is not available under the American system it is felt far more effective than the periodic assessment and far more necessary in India.
Role of Opposition in democracy
- Democracy is the basic feature of the Constitution.
- The presence of a vigilant Opposition is necessary not just for a vibrant democracy but for its very survival.
- When the Opposition criticises the government or carries on an agitation to arouse public opinion against a party’s misdeeds, it is performing a duty that is assigned by the Constitution.
- Without an effective Opposition, democracy will become dull and legislature will become submissive.
Significance of anti-defection law
- Encouraging defections from the parties in power in States will sound the death knell for democracy.
- The Tenth Schedule has failed to serve its purpose.
- The Supreme Court, in Kihoto Hollohan v. Zachillhu (1992), while upholding the 52nd Amendment said that: “On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behaviour conspicuous by their utter and total disregard of well recognised political proprieties and morality… On the other hand, there are… certain side-effects which might affect and hurt even honest dissenters and conscientious objectors.”
- In upholding the law, the court held: “But a political party functions on the strength of shared beliefs… Any freedom of its members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it.”
- What is whip? The whip system is part of the established machinery of political organisation in the House and does not infringe on a member’s rights or privilege in any way.
- Some political thinkers have recognised as an additional device the ‘theory of recall,’ so that a member whose personal behaviour falls below standards expected of his constituents goes back and seek their approval.
- This power is particularly apt when a member shows disloyalty to his party but declines to resign from his seat and to fight an immediate by-election.
- The anti-defection law was supposed to be the justification underlying the power of recall.
Way forward
- Political parties, the judiciary and civil society must take steps to ensure that democracy does not fail.
- The Opposition must be tolerated because if it is left for the party in power to decide what is healthy and unhealthy criticism, then every criticism of the latter will be treated as unhealthy.
- while the Opposition must be credible and strong, it is for the Opposition to make itself credible and strong. It must feel the pulse of the people.
- Unless it makes itself respectable, it cannot demand any respect. This is the biggest challenge facing the nation today.
Conclusion
The Opposition must also work constructively. Our constitutional goal was to establish a sovereign, democratic republic.
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Anti Defection Law
Election Symbol Disputes and ECI
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Read the attached story
Mains level: Anti-defection law
A political party in Maharashtra has approached the Election Commission of India (ECI), requesting it to hear its side before deciding claims to the party’s bow-arrow symbol.
What is the news?
- A party has lost a large number of members in the rebellion that eventually caused the fall of the government in Maharashtra.
- The rebel has claimed to be the only original leader of the party on the basis of the support of more than two-thirds of the party’s legislators in the Maharashtra Assembly.
Options for ECI
- The ECI in all likelihood can freeze the symbol so that neither of the two sides is able to use it until a final decision is made.
- EC hearings are long and detailed, and may take at least six months.
EC’s powers in Election Symbol Dispute
- The question of a split in a political party outside the legislature is dealt by Para 15 of the Symbols Order, 1968.
- It states that the ECI may take into account all the available facts and circumstances and undertake a test of majority.
- The decision of the ECI shall be binding on all such rival sections or groups emerged after the split.
- This applies to disputes in recognised national and state parties.
- For splits in registered but unrecognised parties, the EC usually advises the warring factions to resolve their differences internally or to approach the court.
How did the EC deal with such matters before the Symbols Order came into effect?
- Before 1968, the EC issued notifications and executive orders under the Conduct of Election Rules, 1961.
- The most high-profile split of a party before 1968 was that of the CPI in 1964.
- A breakaway group approached the ECI in December 1964 urging it to recognise them as CPI(Marxist). They provided a list of MPs and MLAs of Andhra Pradesh, Kerala and West Bengal who supported them.
- The ECI recognised the faction as CPI(M) after it found that the votes secured by the MPs and MLAs supporting the breakaway group added up to more than 4% in the 3 states.
What was the first case decided under Para 15 of the 1968 Order?
- It was the first split in the Indian National Congress in 1969.
- Indira Gandhi’s tensions with a rival group within the party came to a head with the death of President Dr Zakir Hussain on May 3, 1969.
Is there a way other than the test of majority to resolve a dispute over election symbols?
- In almost all disputes decided by the EC so far, a clear majority of party delegates/office bearers, MPs and MLAs have supported one of the factions.
- Whenever the EC could not test the strength of rival groups based on support within the party organisation (because of disputes regarding the list of office bearers), it fell back on testing the majority only among elected MPs and MLAs.
What happens to the group that doesn’t get the parent party’s symbol?
- The EC in 1997 did not recognise the new parties as either state or national parties.
- It felt that merely having MPs and MLAs is not enough, as the elected representatives had fought and won polls on tickets of their parent (undivided) parties.
- The EC introduced a new rule under which the splinter group of the party — other than the group that got the party symbol — had to register itself as a separate party.
- It could lay claim to national or state party status only on the basis of its performance in state or central elections after registration.
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Anti Defection Law
Reasons for splits and switches in political parties
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Defections and effectiveness of anti-defection law
Context
In Maharashtra, recently, and in Madhya Pradesh, a while ago, splits in the ruling party and a subsequent realignment of legislators inaugurated new governments.
Challenges to the effectiveness of anti-defection law
- Splits and switches are commonplace in legislatures across the globe, and India has witnessed at least three distinct waves.
- The first wave occurred towards the latter half of the 1960s when challengers to the Congress attempted to displace it in the States.
- An attempt to end defections: The next phase was inaugurated with an attempt to end the free movement and regulate the behaviour of legislators through the anti-defection law.
- Law incentivise collective defection: While the law discouraged individual movement, it incentivised a collective movement of legislators since it laid down specific numbers to legitimise and validate party switches.
- Defeating the purpose: When legislators switch in groups, the costs are shared, and the move also appears less opportunistic, which in many ways defeats the purpose of the legislation.
- The third phase was inaugurated in 2014 when already-dominant parties began to use splits and switches to weaken and destroy their competitors.
- Therefore, the current phase is bizarre when compared to the past because dominant parties appear to be actively cheering splits and shifts and having no respect for the basic rules of the game.
- The anti-defection law and control of institutions are now weaponised by dominant parties to intervene in the internal working of Opposition parties, and sometimes make and break them.
- Furthermore, legislators are switching support even if it does not count to the making or maintenance of governments.
Argument against the split
- Violation of trust: Switchers violate the trust relationship with their constituents as voters get something other than what they bargained for.
- Difficulty in ensuring accountability: Assuming voters vote for parties and not candidates, the argument is that uncohesive parties make it difficult for voters to draw definitive lines of responsibility.
- Consequently, it is difficult for voters to hold party governments accountable for their actions during elections.
Why do legislators split and switch parties?
- Changes and transformation in parties: While we keep track of party system change, we ignore the point that the component parts, parties which make up the system, too change and transform.
- Parties constantly adapt new modes to sustain and find success for themselves.
- Our popular image of a party is that of the classical mass party, which rises from societal movements and is essentially internally democratic.
- This is what even the Election Commission of India imagines a party should be since many of its guidelines lay stress on the ‘democratic spirit’ and the need for transparency and participation in internal decision-making.
- Centralised structure: Today’s parties are centralised vote-getting machines which primarily work to ensure the return of political leaders to office.
- Focus on getting votes: Mass inputs and ideas do not matter, and it is the central leadership that counts. All party activities begin and end with elections.
- Since parties are mainly concerned with electoral success, anyone who enjoys the confidence of the top leadership and can help increase the seat share is likely to get a ticket.
- Dominance of financial power: Moreover, we now know that parties prefer candidates who bring in their own money, fund other candidates and raise resources for the party. All this puts the party on the ground in the shade.
- Closeness of parties to state: the most significant change is that parties are more closely aligned with the state rather than civil society.
- Parties as a source of services: Parties exchange material and psychological rewards, and goods and services the state provides for electoral advantage.
- Voters also see parties as a supplier of services.
- This connection pushes legislators and parties to be in government or at least close to the government.
- On the supply side, the party on the ground no longer calls the shots; parties are election vehicles and a supplier of services. The party bond exists only as long as it ensures success for the legislator
- On the demand side, the voter does not appear to have any problem, as long as “services” are available.
Conclusion
Splits and switches are not seen as objectionable by legislators and are not punished by voters as well. Legislators will, therefore, be willing to do anything if the benefits exceed the costs.
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Anti Defection Law
Do not weaken the anti-defection law
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Schedules of the Constitution
Mains level: Paper 2- Strengthening anti-defection law
Context
The political developments in Maharashtra throw up troubling questions about how the political class is weakening the anti-defection law.
Background of the anti-defection law
- It was enacted as the Tenth Schedule of the Constitution of India, in 1985, under Rajiv Gandhi’s premiership.
- The law as it was enacted provided for the disqualification of a legislator belonging to a political party if he voluntarily gave up his membership of his party or if he defied the whip of his party by voting contrary to its directions in the legislative house.
- Two exceptions: Initially, there were two exceptions provided in the schedule which would exempt a legislator from disqualification.
- 1] Split: The first exception was a split in their original political party resulting in the formation of a group of legislators.
- If the group consisted of one third of such legislators of that party, they were exempted from disqualification.
- This exception was deleted from the schedule through a Constitution Amendment Act of 2003 because of frequent misuse.
- 2] Merger: The second exception was ‘merger’ which can be invoked when the original political party of a legislator merges with another party and not less than two thirds of its legislators agree to such a merger.
Interpretation of term ‘merger’ and issues with it
- It is this second exception contained in paragraph four of the schedule which has been taken recourse to by a large number of legislators across States and even in Parliament to defect to the ruling party.
- These legislators interpreted for themselves the term ‘merger’ to mean the merger of two thirds of legislators.
- Now, the same is being repeated in Maharashtra.
- But there is a little difference here.
- It appears that the dissidents of Shiv Sena believed that if they get the two third number they can form a separate group and topple the government and then form a government with the help of the Bharatiya Janata Party.
- The law imposes the condition of merger of the original political party.
- However, a recent judgment of the Goa Bench of the Bombay High Court ( Girish Chodankar vs The Speaker, Goa State Legislative) that held that the merger of two thirds of Members of the Legislative Assembly is deemed to be the merger of the original party seems to have given them a ray of hope.
- So, the legal position is if the dissidents do not merge with another party they will be disqualified now or later.
Question of disqualification
- Disqualification petitions have been filed by the Shiv Sena against 16 of the dissidents under paragraph 2(1)(a) on the ground that they have voluntarily given up the membership of the party.
- The question of whether they have voluntarily given up the membership of the party is decided on the basis of the conduct of a member.
- In Ravi S. Naik vs Union of India (1994), the Supreme Court had said “an inference can be drawn from the conduct of a member that he has voluntarily given up the membership of the party.
Weakening the anti-defection law
- Unprincipled defection: The ongoing developments in Maharashtra have once again brought before the country the reality of what the Supreme Court also described as the political evil of unprincipled defection.
- But the order of the Supreme Court, on June 27, on petitions from the dissidents in the Shiv Sena, gives undue advantage to the dissident legislators.
- The Court has granted them a longer time to submit replies than the rules mandate.
- This order is going to set in motion certain political developments which will resurrect in a big way what the Supreme Court characterised as political evil.
- The intervention by the Supreme Court too has thrown up some crucial question.
- Kihoto Hollohan case: The first question is whether the Court can intervene at a stage prior to the decision by the Deputy Speaker.
- A Constitution Bench of the Supreme Court had held in Kihoto Hollohan (1993) that judicial review cannot be available prior to the making of a decision by the Speaker nor at an interlocutory stage of the proceeding.
- The notice of no-confidence against the Deputy Speaker has added another piece to the jigsaw puzzle.
- Nabam Rebia case: The Supreme Court had held in Nabam Rebia (2016) that the Speaker shall not decide the disqualification cases till the no-confidence motion against him is disposed of.
- The House rules clearly say that the notice of no-confidence against the Speaker/Deputy Speaker needs to be admitted in the first place which is done only by the Speaker.
- But it is the House which takes the final decision on the motion. If the notice of no-confidence does not contain specific charges, it can be disallowed by the Speaker.
- Further, the notice can be given only if the House is summoned.
- When the notice was given, the Assembly was not convened. So, the notice against the Deputy Speaker can have no validity under the rules.
Conclusion
The law, though not perfect, is a serious attempt to strengthen the moral content of democracy. There will be shortcomings in this Bill but as we see and identify those shortcomings we should try to overcome them.
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Anti Defection Law
The anti-defection law — political facts, legal fiction
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Anti-defection law
Mains level: Paper 2- Paragraph 4 of Tenth Schedule
Context
The ongoing political crisis in Maharashtra, and many others before it, are grim reminders of what the Tenth Schedule can and cannot do.
About 10th Schedule
- In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution.
- But its enactment was catalyzed by the political instability after the general elections of 1967.
- This was the time when multiple state governments were toppled after MLAs changed their political loyalties.
- The purpose of the 1985 Constitution Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected.
- The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.
Provisions of the 10th Schedule
- Instances of floor crossing have long gone unchecked and unpunished.
- In part, this can be attributed to the exemption given to mergers between political parties which facilitate bulk defections.
- Disqualification provision: The second paragraph of the Tenth Schedule allows for disqualification of an elected member of a House if such member belonging to any political party has voluntarily given up membership of their party, or if they vote in the House against such party’s whip.
- Exceptions: Paragraph 4 creates an exception for mergers between political parties by introducing three crucial concepts — that of the “original political party”, the “legislature party”, and “deemed merger”.
- What is the legislature party? It means the group consisting of all elected members of a House for the time being belonging to one political party.
- Original political party: An “original political party” means the political party to which a member belongs (this can refer to the party generally, outside of the House).
- Paragraph 4 does not clarify whether the original political party refers to the party at the national level or the regional level.
How Paragraph 4 of the 10th Schedule deals with mergers?
- Paragraph 4 is spread across two sub-paragraphs, a conjoint reading of which suggests that a merger can take place only when an original party merges with another political party, and at least two-thirds of the members of the legislature party have agreed to this merger.
- It is only when these two conditions are satisfied that a group of elected members can claim exemption from disqualification on grounds of merger.
- The second sub-paragraph (of Paragraph 4) says that a party shall be “deemed” to have merged with another party if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.
- However, in most cases there is no factual merger of original political parties at the national (or even regional) level.
- Creation of legal fiction: Paragraph 4 seems to be creating a “legal fiction” so as to indicate that a merger of two-third members of a legislature party can be deemed to be a merger of political parties, even if there is no actual merger of the original political party with another party.
- In statutory interpretation, “deemed” has an established understanding.
- The word “deemed” may be used in a law to create a legal fiction, and give an artificial construction to a word or a phrase used in a statute.
- In other cases, it may be used to include what is obvious or what is uncertain.
- In either of these cases, the intention of the legislature in creating a deeming provision is paramount.
Merger exception and issues with it
- The merger exception was created to save instances of the principled coming together of political groups from disqualification under the anti-defection law, and to strike a compromise between the right of dissent and party discipline.
- In the absence of mergers of original political parties, the deeming fiction could, presumably, be used as a means to allow mergers of legislature parties.
- Encouraging defection: Reading Paragraph 4 in this manner would empower legislature parties to solely merge with another party, and thus, practically ease defection.
What if sub-paragraphs are read conjunctively?
- For a valid merger then, an original political party has to first merge with another political party, and then two-thirds of the legislature party must support that merger.
- Given the politics of current times, stark differences in parties’ respective ideologies, and deep-seated historical rivalries, it is unimaginable how a merger between major national or regional parties would materialise.
Way forward
- Remove Paragraph 4: In a situation where either reading of Paragraph 4 in its current form yields undesirable results, its deletion from the Tenth Schedule is a possible way forward.
- The Law Commission in 1999 and the National Commission to Review the Working of the Constitution (NCRWC) in 2002 made similar recommendations.
- Revisiting by Supreme Court: Till that happens, an academic revisiting of the Tenth Schedule by the Supreme Court, so as to guide future use of the anti-defection law, is timely and should happen soon.
Conclusion
Neither of these two interpretations of Paragraph 4complements the ‘mischief’ that the Tenth Schedule was expected to remedy — that of curbing unprincipled defections. Amending it is the need of the hour.
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Anti Defection Law
What is SC’s ‘Kihoto Hollohan’ Judgment?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Kihoto Collohan Case
Mains level: Political conundrum in states over defection
As the political battle in Maharashtra moves to the Supreme Court, the role and powers of the Deputy Speaker are in focus.
In the context of the crisis, references have been made to the landmark judgment in ‘Kihoto Hollohan vs Zachillhu And Others’ (1992).
What is the ‘Kihoto Hollohan’ case?
- A constitutional challenge to the Tenth Schedule was mounted, which was settled by the apex court in ‘Kihoto Hollohan’.
- The principal question before the Supreme Court in the case was whether the powerful role given to the Speaker violated the doctrine of basic structure.
- In this judgment, the Supreme Court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
- The Supreme Court laid down the doctrine of basic principle in its landmark judgment in ‘Kesavananda Bharati vs State Of Kerala’ (1973).
What does the Tenth Schedule of the Constitution say?
- The Tenth Schedule was inserted in the Constitution by the Constitution (Fifty-Second Amendment) Act, 1985.
- It provides for the disqualification of Members of Parliament and state legislatures who defect.
- It describes the Speaker’s sweeping discretionary powers to make decisions on case of defection.
What did the Supreme Court rule in ‘Kihoto Hollohan’?
- The petitioners in ‘Kihoto Hollohan’ argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias.
- The majority judgment authored by Justices M N Venkatachaliah and K Jayachandra Reddy answered this question in the affirmative. It read-
- 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 and do take far reaching decisions in the Parliamentary democracy.
- Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.
- The provisions were “salutory and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.”
What was the dissenting opinion?
- Justices Lalit Mohan Sharma and J S Verma dissented and took a different view.
- The tenure of the Speaker, who is the authority in the Tenth Schedule to decide this dispute, is dependent on the continuous support of the majority in the House.
- Therefore, he does not satisfy the requirement of such an independent adjudicatory authority.
- They advocated for an independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House,
- This is envisaged as an attribute of the democratic system which is a basic feature of our Constitution.
What about the role of the Deputy Speaker?
- Article 93 of the Constitution mentions the positions of the Speaker and Deputy Speaker of the House of the People (Lok Sabha), and Article 178 contains the corresponding position for Speaker and Deputy Speaker of the Legislative Assembly of a state.
- Maharashtra has been without a Speaker since February 2021, and Deputy has been carrying out the responsibilities of the position.
- Article 95(1) says: “While the office of Speaker is vacant, the duties of the office shall be performed by the Deputy Speaker”.
- In general, the Deputy Speaker has the same powers as the Speaker when presiding over a sitting of the House.
- All references to the Speaker in the Rules are deemed to be references to the Deputy Speaker when he presides.
Try this PYQ:
Q.Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection?
(a) Second Schedule
(b) Fifth Schedule
(c) Eighth Schedule
(d) Tenth Schedule
Post your answers here.
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Anti Defection Law
Political crisis in Maharashtra underscores ineffectiveness of anti-defection law
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Tenth schedule
Mains level: Paper 2- Anti-defection law
Context
The political crisis in Maharashtra has brought focus back on the anti-defection law. By all accounts, the law has failed to shore up the stability of elected governments.
About 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.
How provisions of the law are being thwarted?
- There are many ways to thwart provisions of the law:
- The Speaker can sit on the defection pleas for the term of the assembly;
- The beneficiary party can facilitate accretion of defectors to hit the magic two-thirds threshold.
- The voters don’t seem to care about punishing the defectors either.
Is an amendment to the law a solution?
- Some have thus argued that the way forward is to amend the anti-defection law to fill these lacunae by mandating time-bound decisions by the Speaker and disqualifying defectors from standing for the next election as well.
- These proposed amendments like the original law want to consolidate power without necessarily putting in the requisite politics.
Why amendment to the law will not solve the problem
- Politicians are adept at subverting institutional processes for their own ends and there are many possibilities for payoff for defectors outside of elected office alone.
- Moreover, politics has a rich history of exercise of power by proxy and the disqualified representative may simply choose to have a family member stand in their stead.
- The anti-defection law and proposed amendments approach the issue of defections from the prism of denying power to the defector, a framing which repeatedly comes up short in the face of a bigger and/or more punitive power.
Way forward
- Parties need to project power: Within this framework, if political parties want to resist defections, they must be able to project (imminent) power themselves.
- Parties need to address organisational issues: At the same time, political parties must address organizational and ideological infirmities which have made them susceptible to mass defections in the first place.
- Ideological clarity: Political parties need ideological clarity and the ability to attract individuals with a sense of purpose and not love for power alone.
- This ideological depth if reflected in the party organization and its political programs will give members the ability to withstand lean periods of power.
- Inner-party democracy: Political parties are failing to create intra-party forums where grievances can be expressed and resolved on an ongoing basis.
- Internal mechanisms for inner-party democracy – from elections to deliberative forums – are ultimately at the discretion of the party leadership.
- Scrap anti-defection law: Scrapping the anti-defection law would provide some institutional leverage to express intra-party dissidence and while it may be more chaotic in the short-term would lead to greater stability and political strength in the long-term.
- Contributed to polarisation: The anti-defection law has undermined not just the very principle of representation but has also contributed to polarization in our country by making it impossible to construct a majority on any issue outside of party affiliation.
- Avoid ceding political power to the judiciary: Political parties are repeatedly giving primacy to legal instead of political battles since these issues inevitably end up in court.
- This repeated ceding of political power to the judiciary is a serious deviation from the democratic paradigm and must be checked.
Conclusion
Anti-defection law has failed to prevent the defections and subsequent toppings of the several state government. Scrapping it could provide leverage to express intra-party dissidence.
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Anti Defection Law
Anti-defection Law
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Anti-Defection Law
Mains level: Political turmoil in states and horse trading
The unfolding political crisis in Maharashtra has thrown the spotlight on the anti-defection law, and the roles of the Deputy Speaker and the Governor.
What is the news?
- Some legislators have aligned themselves with the party’s rebel leader and are camping in Guwahati.
- The party has warned its MLAs that their absence from the meeting would lead to the presumption they wanted to leave the political party.
- And this would therefore lead to action against them under the anti-defection law.
What is the Anti-Defection Law?
- The anti-defection law provides for the disqualification of MLAs who, after being elected on the ticket of a political party, “voluntarily give up their party membership”.
- The Supreme Court has interpreted the term broadly and ruled an MLA’s conduct can indicate whether they have left their party.
- The law is also applicable to independent MLAs.
- But the anti-defection law does not apply if the number of MLAs who leave a political party constitute two-thirds of the party’s strength in the legislature.
- These MLAs can merge with another party or become a separate group in the legislature.
How does the two-thirds rule work in the current situation in Maharashtra?
- Reports indicate that 30 MLAs are with rebel leader.
- Taking this number at face value means it does not reach the two-thirds (37) mark of the 55 MLAs the party has in the Maharashtra Assembly.
- Therefore, the protection under the anti-defection law would not be available to the rebel group.
What adds more to this high-stage political drama?
- It is the Assembly Speaker who decides whether an MLA has left a party or a group that constitutes two-thirds of a party.
- The position of the Speaker of the Maharashtra Assembly is, however, currently vacant.
- Article 180(1) of the Constitution states that the Deputy Speaker performs the Speaker’s duties when the office is vacant.
- Since then, the Deputy Speaker has been acting as the Speaker.
How would a decision be taken whether the anti-defection law applies in this case?
Under the current circumstances, two ways would lead to adjudication under the law.
(1) Approaching the acting Speaker to file defection petition
- First, any MLA of the Assembly can petition that certain MLAs have defected from their political party.
- Such a petition has to be accompanied by documentary evidence.
- The Deputy Speaker would then forward the petition to the MLAs against whom their colleagues are making the charge of defection.
- The MLAs would have seven days or such time that the Deputy Speaker decides is sufficient to enable them to put across their side of the story.
(2) Proving of two-third majority
- Rebel leader and MLAs supporting too can write to the Deputy Speaker with evidence claiming that they represent two-thirds of the strength and claim protection under the anti-defection law.
- In either case, Speakers will decide the matter after hearing all parties, which could take time.
How much time does it usually take? Why delay occurs?
- In recent years, one of the fastest decisions in a defection proceeding was delivered by Rajya Sabha Chairman Venkaiah Naidu.
- However in state legislatures, defection petitions have taken much longer.
- For example, in 2020, the Supreme Court used its extraordinary power to remove a Manipur minister from his position.
- But whether the Speaker decides quickly or takes time, the Speaker is usually challenged in court, which further delays the decision.
- Both Venkaiah Naidu and the Supreme Court have recommended that Speakers decide on defection cases in three months.
What is the Governor’s role?
(1) Declaration of Presidents Rule (NA)
- The Governor has a crucial role when there is political instability in a state.
- Before 1994, Governors were quick to dismiss a state government, charging that it did not have a majority in the state legislature and recommending the imposition of the President’s rule in the state.
- But the Supreme Court ended this practice with its judgment in the S R Bommai case in 1994.
(2) Holding Assembly
- In this landmark case, the court ruled that the place for deciding whether a government has lost its majority was in the legislature.
- Hence, Maharashtra Governor can ask Chief Minister to convene the Assembly and prove his majority on the floor of the House.
(3) Governors Discretion
- The CM can recommend to the Governor to dissolve the legislature before the end of its five-year term and call for elections under Article 174(2)(b).
- Here, the Governor’s discretion comes into play.
- The Governor may choose not to dissolve the legislature.
- This is when if he or she believes that the recommendation is coming from a council of ministers who do not enjoy the confidence of the state legislature.
Note: In 2020, the Supreme Court, in Shivraj Singh Chouhan & Ors versus Speaker, MP Legislative Assembly & Ors, upheld the powers of the Speaker to call for a floor test if there is a prima facie view that the government has lost its majority.
(4) Floor test
- Under Article 175(2), the Governor can summon the House and call for a floor test to prove whether the government has the numbers.
- In a detailed judgment, the Court also explained the scope of the power of the Governor and the law revolving around floor tests.
- When the House is in session, it is the Speaker who can call for a floor test.
- But when the Assembly is not in session, the Governor’s residuary powers under Article 163 allow him to call for a floor test.
Conclusion
- The spectacle of rival political parties whisking away their MLAs to safe destinations does little credit to the state of our democratic politics.
- It is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics.
- Political bargaining, or horse-trading, as we noticed, is now an oft repeated usage in legal precedents.
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Anti Defection Law
What is Office-of-Profit?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Office of Profit
Mains level: Read the attached story
The Election Commission (EC) has sent a notice to Jharkhand CM over an office-of-profit charge against him for allotment of a mining lease in his name last year.
Why in news?
- Under Section 9A of the Representation of the People Act, 1951, the CM could face disqualification for entering into a government contract.
- The Constitution of India does not define the Office of Profit. It has only mentioned it under Article 102 (1) and Article 191 (1).
What is ‘Office of Profit’?
- MPs and MLAs, as members of the legislature, hold the government accountable for its work.
- The essence of disqualification is if legislators hold an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly.
- The intent is that there should be no conflict between the duties and interests of an elected member.
- Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.
What governs the term?
- At present, the Parliament (Prevention of Disqualification) Act, 1959, bars an MP, MLA or an MLC from holding any office of profit under the central or state government unless it is exempted.
- However, it does not clearly define what constitutes an office of profit.
- Legislators can face disqualification for holding such positions, which bring them financial or other benefits.
- Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the Central or State government.
An undefined term
- The officials of the law ministry are of the view that defining an office of profit could lead to the filing of a number of cases with the Election Commission and the courts.
- Also, once the definition is changed, one will also have to amend various provisions in the Constitution including Article 102 (1) (a) and Article 109 (1) (a) that deal with the office of profit.
- It will have an overarching effect on all the other sections of the Constitution.
Factors constituting an ‘office of profit’
- The 1959 law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments.
- An office of profit has been interpreted to be a position that brings to the office-holder some financial gain, or advantage, or benefit. The amount of such profit is immaterial.
- In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.
What is the ‘test of appointment’?
Several factors are considered in this determination including factors such as:
- whether the government is the appointing authority,
- whether the government has the power to terminate the appointment,
- whether the government determines the remuneration,
- what is the source of remuneration, and
- the power that comes with the position.
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Anti Defection Law
Anti-Defection Law
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Anti-defection law
Mains level: Read the attached story
Vice-President M. Venkaiah Naidu said that there was a need to amend the anti-defection legislation in the country to plug existing loopholes.
What did VP notice now?
- Stating that there was no clarity in the law about the time frame for the action of the House Chairperson or Speaker in anti-defection cases.
- Some cases are taking six months and some even three years.
- There are cases that are disposed of after the term is over.
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 considered 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.
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.
Significant role of the Speaker/Presiding Officer
- Pandit Nehru had referred to the Speaker as “the symbol of the nation’s freedom and liberty” and emphasized that Speakers should be men of “outstanding ability and impartiality”.
- Several judgments on the anti-defection law have been rendered by the Supreme Court.
- A common factor that shows up in these rulings is the blatant, partisan conduct of speakers in state assemblies.
Reasons for Speakers’ ambiguous action
- The Speaker continues to belong to a particular political party.
- The electoral system and conventions in India have ‘not been developed to ensure protection to the office, there are cogent reasons for Speakers to retain party membership.
- It would be unrealistic to expect a speaker to completely abjure all party considerations while functioning.
- There are structural issues regarding the manner of appointment of the Speaker and her tenure in office.
Way forward
- Parliament may seriously consider a Constitutional amendment to bring in a permanent Tribunal for dealing with defection cases.
- It is suggested that a scheme should be brought wherein Speakers should renounce all political affiliations, membership, and activity once they have been elected.
- We can learn from the UK model. In practice, once elected, the Speaker gives up all-partisan affiliation, as in other Parliaments of British tradition.
- He/she remains in office until retirement, even though the majority may change and does not express any political views during debates.
Conclusion
- Impartiality, fairness, and autonomy in decision-making are the hallmarks of a robust institution.
- It is the freedom from interference and pressures which provide the necessary atmosphere where one can work with an absolute commitment to the cause of neutrality as a constitutional value.
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Anti Defection Law
How to fix the anti-defection loophole
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Tenth schedule
Mains level: Paper 2- Loopholes in anti-defection law
Context
It is time that we took a fresh look at the Tenth Schedule to our Constitution.
Shortcomings of the anti-defection law
- Partisan nature of Speaker: Paragraph 3 of the Tenth Schedule was omitted by the Constitution (91st Amendment) Act, 2003, which came into effect on January 1, 2004.
- Paragraph 3, as it existed prior to the amendment, protected defectors as long as one-third of the members of a political party formed a separate group.
- In the context of small assemblies, one-third of the members could easily be cobbled together.
- Often, the speaker of the assembly was seen to be collaborating with the political party in power to protect the defectors under the one-third rule.
- Such partisan conduct of the speakers is at the heart of a non-functional Tenth Schedule.
- The seeming political bias of the speakers acting as tribunals is apparent from how disqualification petitions are dealt with.
- We have seen this happen in Manipur, Goa, Madhya Pradesh, Uttarakhand and other jurisdictions.
- Allowing two-third members to merge with another party: After the omission of paragraph 3, paragraph 4 allowed for the protection of defecting members provided two-thirds of the members of the legislative party merged with another political party.
- This provision has invariably been misused.
- Constitutional flaw in provisions of paragraph 4: Third, there is a constitutional flaw in the manner in which the provisions of paragraph 4 have been enacted.
- Paragraph 4(1) stipulates that a member of the house will not be disqualified from his membership where his original political party merges with another political party and he claims that he and other members have become members of the other political party or a new political party is being formed by such merger.
- However, paragraph 4(2) provides that such a merger would be deemed to have taken place only if not less than two-thirds of the members of the legislative party agreed to such a merger.
- This allows for clandestine corruption where two-thirds of the members of the legislative party are bought over, by means fair or foul, to either topple governments or to strengthen a razor-thin majority of the party in power.
- This makes the entire provision unworkable and unconstitutional.
- Prolonging the proceedings: We have witnessed situations where, even though the provisions of paragraph 4 are not ex-facie attracted, the speaker of the assembly makes sure that the proceedings are interminably prolonged so that the term of the assembly comes to an end before the proceedings under the Tenth Schedule against those ex-facie defectors have been concluded.
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
- 1] 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.
- 2] Omit Paragraph 4 through Amendment: Paragraph 4 of the Tenth Schedule should be omitted by moving a constitutional amendment.
- 3] 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.
Consider the question “Has anti-defection law succeeded in curbing the defections and ensuring the stability of the elected governments? Give reasons in support of your argument.”
Conclusion
If our polity wants to get rid of open corruption, it needs to take urgent steps to plug existing loopholes that have made the Tenth Schedule unworkable.
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Back2Basics: 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.
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Anti Defection Law
Speaker’s powers on Anti-Defection Cases
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Anti-defection law
Mains level: Issues with the role of Speaker in defection cases
The All-India Presiding Officers’ Conference (AIPOC) ended with the delegates failing to reach a consensus on whether the Speaker’s powers under the anti-defection law should be limited.
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 considered 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.
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.
Significant role of the Speaker/Presiding Officer
- Pandit Nehru had referred to the Speaker as “the symbol of the nation’s freedom and liberty” and emphasized that Speakers should be men of “outstanding ability and impartiality”.
- Several judgments on the anti-defection law have been rendered by the Supreme Court.
- A common factor that shows up in these rulings is the blatant, partisan conduct of speakers in state assemblies.
Reasons for Speakers’ bias
- The Speaker continues to belong to a particular political party.
- The electoral system and conventions in India have ‘not been developed to ensure protection to the office, there are cogent reasons for Speakers to retain party membership.
- It would be unrealistic to expect a speaker to completely abjure all party considerations while functioning.
- There are structural issues regarding the manner of appointment of the Speaker and her tenure in office.
Way forward
- Parliament may seriously consider a Constitutional amendment to bring in a permanent Tribunal for dealing with defection cases.
- It is suggested that a scheme should be brought wherein Speakers should renounce all political affiliations, membership, and activity once they have been elected.
- We can learn from the UK model. In practice, once elected, the Speaker gives up all-partisan affiliation, as in other Parliaments of British tradition.
- He/she remains in office until retirement, even though the majority may change and does not express any political views during debates.
Conclusion
- Impartiality, fairness, and autonomy in decision-making are the hallmarks of a robust institution.
- It is the freedom from interference and pressures which provide the necessary atmosphere where one can work with an absolute commitment to the cause of neutrality as a constitutional value.
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Anti Defection Law
Anti-defection Law
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Anti-defection law
Mains level: Read the attached story
An independent MLA from Gujarat is said to have has joined a national political party “in spirit” as he could not formally do so, having been elected as an independent.
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.
Why in news?
- The anti-defection law specifies the circumstances under which changing of political parties by legislators invites action under the law.
- It includes situations in which an independent MLA, too, joins a party after the election.
Why are independents important?
- Independents give voters better opportunities to express their preferences.
- This can improve political representation, as independents are free from the dictates of a party line, and have the flexibility to represent local preferences in a way that party-affiliated candidates often do not.
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.
Try this easy PYQ:
Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection?
(a) Second Schedule
(b) Fifth Schedule
(c) Eighth Schedule
(d) Tenth Schedule
Post your answers here
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Anti Defection Law
Who is a Whip?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Whip
Mains level: Defection by politicians
The party in the opposition has appointed two members as the party’s whips in the Upper House.
Who is a Whip?
- A whip is an official of a political party whose task is to ensure party discipline in a legislature.
- This means ensuring that members of the party vote according to the party platform, rather than according to their own individual ideology or the will of their donors or constituents.
- Whips are the party’s “enforcers”.
- They try to ensure that their fellow political party legislators attend voting sessions and vote according to their party’s official policy.
- Members who vote against party policy may “lose the whip”, effectively expelling them from the party.
Answer this PYQ:
Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (CSP 2017)
(a) Second Schedule
(b) Fifth Schedule
(c) Eighth Schedule
(d) Tenth Schedule
Post your answers here.
Whips in India
- In India, the concept of the whip was inherited from colonial British rule.
- Every major political party appoints a whip who is responsible for the party’s discipline and behaviors on the floor of the house.
- Usually, they direct the party members to stick to the party’s stand on certain issues and directs them to vote as per the direction of senior party members.
What happens if a whip is disobeyed?
- A legislator may face disqualification proceedings if she/he disobeys the whip of the party unless the number of lawmakers defying the whip is 2/3rds of the party’s strength in the house.
- Disqualification is decided by the Speaker/Chairman of the house.
Limitations of whip
- There are some cases such as Presidential elections where whips cannot direct a Member of Parliament (MP) or Member of Legislative Assembly (MLA) to vote in a particular fashion.
Types of whips
There are three types of whips or instructions issued by the party
- One-line whip: One-line whip is issued to inform members of a party about a vote. It allows a member to abstain in case they decide not to follow the party line.
- Two-line whip: Two-line whip is issued to direct the members to be present in the House at the time of voting.
- Three-line whip: Three-line whip is issued to members directing them to vote as per the party line.
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Anti Defection Law
Anti-defection law: when a nominated MP loses RS membership
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Anti-defection law
Mains level: Not Much
A nominated MP had to resign from Rajya Sabha before the completion of his term due to the Anti-defection law.
The story of Nominated Members
- During the making of the Constitution, members of the Constituent Assembly felt that Rajya Sabha should have members who might not win elections but will bring knowledge and expertise to discussions.
- It led to Rajya Sabha having 12 nominated members from different walks of life.
- The broad criterion for their nomination is that they should have distinguished themselves in fields like literature, science, art, and social service.
- The President nominates such individuals as recommended by the Centre.
- Nominated members have the same rights and privileges as elected members, with one notable difference — they cannot vote in the election of the President.
Anti-defection law
- In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution.
- But its enactment was catalyzed by the political instability after the general elections of 1967.
- This was the time when multiple state governments were toppled after MLAs changed their political loyalties.
- The purpose of the 1985 Constitution Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected.
- The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.
Try this PYQ:
Consider the following statements:
- The Chairman and the Deputy Chairman of the Rajya Sabha are not the members of that House.
- While the nominated members of the two Houses of the Parliament have no voting right in the presidential election, they have the right to vote in the election of the Vice President.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
What invites defection?
The law covers three types of scenarios with respect to MP switching parties.
- 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 contrary to the wishes of the party.
- The second possibility is when an MP who has won his or her seat as an independent candidate after the election joins a political party. In both these instances, the MP lose the seat in the House on changing (or joining) a party.
- The third scenario relates to nominated MPs. In their case, the law specifies that within six months of being nominated to the House, they can choose to join a political party.
Why is a nominated member given 6month time?
- The time is given so that if a nominated MP is not a member of a political party, they can decide to join one if they want.
- But if they don’t join a political party during the first six months of their tenure, and join a party thereafter, then they lose their seat in Parliament.
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Anti Defection Law
The absurdity of the anti-defection law
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Schedule 10
Mains level: Paper 2- Issues with anti-defection law
The article highlights the shortcomings of the anti-defection law and its failure in ensuring the stability of the government.
Background of anti-defection law
- The anti-defection law was included in the Constitution as the Tenth Schedule in 1985.
- The main purpose was to preserve the stability of governments and insulate them from defections of legislators from the treasury benches.
- The law stated that any Member of Parliament (MP) or that of a State legislature (MLA) would be disqualified from their office if they voted on any motion contrary to the directions issued by their party.
Issues with the anti-defection law
1) Against the concept of representative democracy
- The provisions of the anti-defection law is not limited to confidence motions or money bills.
- It applies to all votes in the House, on every Bill and every other issue.
- It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government.
- Therefore, an MP (or MLA) has absolutely no freedom to vote their judgement on any issue.
- They have to blindly follow the direction of the party.
- This provision goes against the concept of representative democracy.
2) The act turns legislator to be an agent of the party
- There are two broadly accepted roles of a representative such as an MP.
- One is that they are agents of the voters and are expected to vote according to the wishes and for the benefits of their constituents.
- The other is that their duty to their constituents is to exercise their judgement on various issues towards the broader public interest.
- In this, they deliberate with other MPs and find a reasonable way through complex issues.
- The anti-defection law makes the MP neither a delegate of the constituency nor a national legislator but converts them to be just an agent of the party.
3) Broken chain
- The legislator is accountable to voters, and the government is accountable to legislators.
- In India, this chain of accountability has been broken by making legislators accountable primarily to the party.
- This means that anyone from the party having a majority in the legislature is unable to hold the government to account.
- This negates the concept of them having to justify their positions on various issues to the people who elected them to the post.
4) No incentive for MPs to understand policy choices
- If an MP has no freedom to take decisions on policy and legislative proposals, there would be no incentive to put in the effort to understand the different policy choices and their outcomes.
- The MP becomes just another number to be tallied by the party on any vote that it supports or opposes.
5) Weakening of the accountability mechanism
- While introducing the draft Constitution, Dr. B.R. Ambedkar said that the presidential form (such as in the United States) had higher stability but lower accountability.
- This is because the President is elected for four years, and cannot be removed except for proven misdemeanour.
- In the parliamentary form, the government is accountable on a daily basis through questions and motions and can be removed any time it loses the support of the majority of members of the Lok Sabha.
- The drafting committee believed that India needed a government that was accountable, even at the cost of stability.
- The anti-defection bill weakens the accountability mechanism.
6) The act fails to provide stability
- The political system has found ways to topple governments by reducing the total membership through resignations.
- In other instances, the Speaker — usually from the ruling party — has delayed taking a decision on the disqualification.
- The Supreme Court has tried to plug this by ruling that the Speaker has to take the decision in three months, but it is not clear what would happen if a Speaker does not do so.
- The premise that the anti-defection law is needed to punish legislators who betray the mandate given by the voters also seems to be flawed.
- We have seen many of the defectors in States such as Karnataka and Madhya Pradesh being re-elected in the by-polls, which were held due to their disqualification.
Way forward
- The problem arises from the attempt to find a legal solution to what is essentially a political problem.
- If stability of government is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal systems.
- If parties attract members on the basis of ideology, and they have systems for people to rise within the party hierarchy on their capabilities rather than inheritance, there would be a greater exit barrier.
Consider the question “How far has the anti-defection law succeeded in preventing the destabilisation of the governments? Give reasons in support of your argument.”
Conclusion
The anti-defection law has been detrimental to the functioning of our legislatures as deliberative bodies which hold the executive to account on behalf of citizens. It has turned them into fora to endorse the decision of the government on Bills and budgets. And it has not even done the job of preserving the stability of governments. The Tenth Schedule to the Constitution must be repealed.
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Anti Defection Law
Governor’s role in calling an Assembly Session
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Governor’s Discretionary Powers
Mains level: Issues with the office of Governor in recent times
In yet another tug-of-war between Kerala Governor and CM, the Governor has turned down a request to summon a special sitting of the Assembly to debate the new three central farm laws.
Q.The political nature of the office of the Governor, especially in Opposition-ruled states, has been underlined in several instances by courts. Discuss.
Governor and Assembly Session
- The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…” says Article 174 of the Constitution.
- The provision also puts on the Governor the responsibility of ensuring that the House is summoned at least once every six months.
- Although it is the Governor’s prerogative to summon the House, according to Article 163, the Governor is required to act on the “aid and advice” of the Cabinet.
- So when the Governor summons the House under Article 174, this is not of his or her own will but on the aid and advice of the Cabinet.
Can the Governor refuse the aid and advice of the Cabinet?
- There are a few instances where the Governor can summon the House despite the refusal of the Chief Minister who heads the Cabinet.
- When the CM appears to have lost the majority and the legislative members of the House propose a no-confidence motion against the CM, then the Governor can decide on his or her own on summoning the House.
- But the actions of the Governor, when using his discretionary powers can be challenged in court.
Precursors set by the Supreme Court
- A number of rulings by the Supreme Court have settled the position that the Governor cannot refuse the request of a Cabinet that enjoys the majority in the House unless it is patently unconstitutional.
- The latest in the line of rulings is the landmark 2016 Constitution Bench ruling in which the Supreme Court looked into the constitutional crisis in Arunachal Pradesh.
- The Governor had imposed President’s Rule in the state of Arunachal.
- In ordinary circumstances during the period when the CM enjoy the confidence of the majority, the power vested under Article 174 must be exercised with the aid and advice of the CM and his CoM.
- In the above situation, he/she has precluded [from taking] an individual call on the issue at his own will, or in his own discretion, the verdict said.
- The court read: the power to summon the House as a “function” of the Governor and not a “power” he enjoys.
What Sarkaria Commission had said?
- The Sarkaria Commission of 1983, reviewed the arrangements between the Centre and the states, had said that so long as the CoM enjoys the confidence of the Assembly, its advice in these matters, unless patently unconstitutional must be deemed as binding on the Governor.
- It is only where such advice if acted upon, would lead to an infringement of a constitutional provision if the CoM has ceased to enjoy the confidence of the Assembly.
What happens if the Kerala government insists on holding the special session?
- Since the Governor’s powers are limited with regard to summoning the House, there can be no legal ground to deny a request for summoning the session.
- In such a political row, the Governor’s refusal can also be challenged in court.
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Anti Defection Law
Merger of political parties under Tenth schedule
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Anti-defection law
Mains level: Issues over Anti-defection law
A political party is trying to win back its defected MLAs in Rajasthan. This has raised a new question- “Does the anti-defection law apply here?”
Try this question for mains:
Q.“Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.
What does “merger” mean a/c to Tenth Schedule?
- 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.
The ‘merger’ Politics
- The political party is arguing 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.
- In this case, it would be the Rajasthan Legislative unit of the BSP and not the BSP at the national level.
- Paragraph 1 of the Tenth Schedule which defines terms specified in the context of the anti-defection law states this clearly.
- “Legislature Party” for the purposes of Paragraph 4 (which deals with mergers) means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions.
Role of Whip
- Every legislative party identifies the party’s whip at the beginning of the Assembly’s term and conveys this to the Speaker.
- A national leader’s direction cannot be considered a whip in the context of the anti-defection law.
On what grounds is the case-based?
- The contention is that the merger is illegal and unconstitutional because, for a national party, such merger has to take place at the national level.
- Supporting this argument, there are two decisions of the Supreme Court: the 2006 Jagjit Singh v State of Haryana, and the 2007 ruling in Rajendra Singh Rana and Ors vs Swami Prasad Maurya.
- In these cases, the SC ruled that the split cannot be recognised primarily because not all these MLAs split at once.
- The key aspect is that these cases deal with splits where when one-third of the members of a legislative party split; they could not attract disqualification as per Paragraph 3 of the Tenth Schedule.
Row over one-third
- In 2003, through the 91st Constitutional Amendment, Paragraph 3 was deleted from the Tenth Schedule.
- The amendment was made as the one-third split rule was grossly misused by parties to engineer divisions and indulge in horse-trading.
- One-third was regarded as an easy target to achieve and the law now exempts defection only when it is at two-thirds (in a merger).
Are there any such precedents?
- In July 2019, 10 of the 15 one party’s MLAs in Goa joined the other taking the ruling party’s tally to 27 in the 40 member House.
- Since they formed two-thirds of the strength of the legislative party unit, they are exempt from disqualification.
- However, the Speaker’s decision not to disqualify them is under challenge before the Supreme Court.
- Similarly in Telangana in 2016, two years after the 12 out of 15 of MLAs joined the ruling party.
- The Speaker recognised the defection as a merger since more than two-thirds had moved.
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Anti Defection Law
When can a Governor use his discretion, how has the SC ruled?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Governor’s Discretionary Powers
Mains level: State legislature issues
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.
Try this question for mains:
Q. “Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.
Who has the powers to summon the House?
- It is the Governor acting on the aid and advice 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.
What has the Supreme Court said in the past about the Governor’s power to summon the House?
- It is settled law 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.
What did the SC say in the Arunachal case?
- Referring to discussions in the Constituent Assembly, the court noted that the framers of the Constitution expressly and consciously left out vesting powers to summon or dissolve the House solely with the Governor.
- It said that the powers of the Governor were substantially altered to indicate that the framers did not want to give Governors the discretion.
- The Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of Ministers (CoM) with the Chief Minister as the head and not at his own, said the Court.
When can a Governor use his discretion?
- Article 163(1) of the Constitution says that “there shall be a CoM with the CM at the head to aid and advice the Governor in the exercise of his functions, except some conditions for discretion.
- However, in the 2016 case, the apex court has defined the circumstances if the aid and advice of CoM are binding on the Governor.
- When the chief minister has lost the support of the House and his strength is debatable, then the Governor need not wait for the advice of the CoM to hold a floor test.
Novel situations are created these days
- Generally, when doubts are cast on the chief minister that he has lost the majority, the opposition and the Governor would rally for a floor test.
- The ruling party may attempt to stall the process to buy time and keep its flock together.
- In a puzzling situation, in Rajasthan’s case, despite requests from CM, the Governor has returned requests to call for a session.
- However, in the current case, the rebel MLAs have not defected from their party but have repeatedly stated before the Rajasthan HC that they are merely expressing their dissent within the party.
Back2Basics: Governor’s Discretionary Powers
The governor can use his/her discretionary powers:
- When no party gets a clear majority, the governor has the discretion to choose a candidate for the chief minister who will put together a majority coalition as soon as possible.
- He can impose president’s rule.
- He submits reports on his own to the president or on the direction of the president regarding the affairs of the state.
- He can withhold his assent to a bill and send it to the president for his approval.
- During emergency rule per Article 353, he can override the advice of the council of ministers if specifically permitted by the president.
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Anti Defection Law
Governor’s Discretionary Powers in Assembly Deadlock
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Discretionary powers of Governor
Mains level: Speaker vs Governor Tussle
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.
Try this question for mains:
Q. “Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.
Resolving the deadlock
- The judgment is significant in the present deadlock between the CM and the Governor over the summoning of an Assembly session for a floor test.
- The Governor can summon, prorogue and dissolve the House only on the aid and advice of the Council of Ministers with the Chief Minister as the head.
The Nabam Rebia Case
- The five-judge Constitution Bench judgment of the Supreme Court cited the Nabam Rebia versus Deputy Speaker on July 13, 2016.
- It held that a Governor cannot employ his ‘discretion’, and should strictly abide by the “aid and advice” of the Cabinet to summon the House.
- It held that the discretionary power of the Governor is extremely limited and entirely liable to judicial review.
- The judgment was a consequence of then Arunachal Pradesh Governor J.P. Rajkhowa’s decision to advance the Assembly session, a move which led to unrest in the State and resulted in the President’s rule.
- The Constitution Bench held Mr. Rajkhowa’s decision to be a violation of the Constitution.
Governor’s discretion: Limited to specified areas
- The Supreme Court 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 court said the Governor’s 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 which has lost of confidence but refuses to quit, etc.
Back2Basics: Governor’s Discretionary Powers
The governor can use his/her discretionary powers:
- When no party gets a clear majority, the governor has the discretion to choose a candidate for the chief minister who will put together a majority coalition as soon as possible.
- He can impose president’s rule.
- He submits reports on his own to the president or on the direction of the president regarding the affairs of the state.
- He can withhold his assent to a bill and send it to the president for his approval.
- During emergency rule per Article 353, he can override the advice of the council of ministers if specifically permitted by the president.
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Anti Defection Law
Time to revisit the practice of floor test
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Provisions under 10th Schedule
Mains level: Paper 2- Anti-defection law, 10th Schedule
The growing trend of the toppling of the government by luring the MLAs of ruling party. The SC needs to reconsider the floor test usually ordered in such cases. The article analyses this issue here.
Reading Article 191(2) and 10th Schedule
- Article 191(2) declares that a person shall be disqualified from being a member of the legislative assembly or legislative council of a state if he is so disqualified under the Tenth Schedule.
- The Tenth Schedule to the Constitution contains “provisions as to disqualification on ground of defection”.
- Tenth Schedule also fixes the relationship between a member and a political party which selected him as a candidate.
- It also provides one of the grounds for disqualification: “If he voluntarily gives up his membership of such political party”.
- The decision as to disqualification is left to the absolute discretion of the Speaker.
Constitutional morality and 10th Schedule
- Tenth Schedule brings to the fore the need to emphasise “constitutional morality”.
- Constitutional morality means “strict adherence to the core principles of constitutional democracy”.
- So, Constitutional transgressions by MLAs coming through a “party platform” to serve the people for five years (Article 172), cannot be accepted.
- In so doing, these MLAs forget the oath, taken under Article 188 of the Constitution to bear true faith and allegiance to the Constitution of India as established by law.
- Legislators do not have absolute freedom to behave in any way they like.
Issues with the floor test
- When ruling party MLAs are lured with rewards, political or otherwise, then the “floor test” becomes constitutionally immoral and unjust.
- This will amount to circumventing the Tenth Schedule through engineered defections through the judicial process.
- It is high time the judiciary revisited the use of a “floor test” to prove a majority in a legislature.
Consider the question “Examine the ways in which a member of the house is deemed to have given up his membership under the 10th Schedule as interpreted in the various judgements. Also, analyse the implications of conducting a floor test in a situation when members of the ruling party are lured with rewards.”
Conclusion
Judiciary must take note of the toppling of the majority government through luring of the MLAs and subsequent floor test by the courts. The floor test in such a situation needs reconsideration.
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Anti Defection Law
Judicial intervention in Anti-defection Proceedings
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Tenth Schedule
Mains level: Issues over Judicial discretion in Anti-defection
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.
Try these questions:
Q. “The anti-defection law works best as an insurance against violation of the people’s mandate for a party, but it cannot be made a tool to stifle all dissent.” Discuss.
—–
Q.Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (CSP 2014)
(a) Second Schedule
(b) Fifth Schedule
(c) Eighth Schedule
(d) Tenth Schedule
What is the issue?
- 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 HC order was an affront to the powers of the Speaker.
- 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).
Backed by Tenth Schedule
- The petition said that judicial review of ongoing anti-defection proceedings was limited.
- Notice is much prior to any final determination or decision on disqualification.
- The proceedings, including the notice, are in the realm of the legislative proceedings under Paragraph 6(2) of the Tenth Schedule, the Speaker’s office argued.
Citing the Kihoto Hollohan case
- 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.
Must read:
What does the dissident MLAs have to say?
- The dissident MLAs had challenged the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification.
- The MLAs had argued that the provision infringed their right to dissent.
- But the Speaker’s office countered that Paragraph 2 (1)(a) of the Tenth Schedule was the law of the land.
- A mere challenge to its constitutionality cannot efface it from the statute book.
Back2Basics
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Anti Defection Law
The Kihoto Hollohan Judgment and its Significance
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Highlights of the Judgment
Mains level: Issues over Speaker's discretion in Anti-defection
The 28 YO Kihoto Hollohan judgment has found its relevance in the case of ousted Rajasthan Dy. CM and some MLAs who were issued a notice under the anti-defection law.
Try this question from CSP 2019:
Q.The Ninth Schedule was introduced in the Constitution of India during the prime-ministership of:
(a) Jawaharlal Nehru
(b) Lal Bahadur Shastri
(c) Indira Gandhi
(d) Morarji Desai
Under debate: Speaker’s power
- The power for this disqualification is vested in the Speaker, who is usually a nominee of the ruling party.
- Since no action was taken by the Speaker on the disqualification petitions, a writ petition was filed before the High Court of Manipur in Imphal seeking directions to decide on the petition.
- However, the court did not pass an order.
- It said that the larger issue of whether a High Court can direct a Speaker to decide a disqualification petition within a certain timeframe is pending before a Constitution Bench of the Supreme Court.
- The parties are left with the option to move the apex court or wait for the outcome of the cases pending before it.
The Kihoto Hollohan Judgment
- The 1992 judgment of the Supreme Court in the Kihoto Hollohan versus Zachillu and Others has said that “judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman.
- Nor would interference be permissible at an interlocutory stage of the proceedings said the Supreme Court.
- The only exception for any interlocutory interference can be cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.
Free speech
- The ruling party in Rajasthan has challenged the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification.
- The MLAs have said the provision infringes into their right to express dissent and is a violation of their fundamental right to free speech as a legislator.
- The Rajasthan HC Bench explained that the reason for limiting the role of courts in ongoing defection proceedings is that the “office of the Speaker is held in the highest respect and esteem in parliamentary traditions.
Exceptions to the Kihoto Judgment
- The judgment had said that even the scope of judicial review against an order of a Speaker or Chairman in anti-defection proceedings would be confined to jurisdictional errors.
- That is if its infirmities are based on a violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.
Back2Basics
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Anti Defection Law
How Manipur defections put focus on Speakers’ powers to disqualify?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Tenth Schedule
Mains level: Issues over Speaker's discretion in Anti-defection
Manipur Speaker’s decision to disqualify some MLAs ahead of the Rajya Sabha election has raised questions once again on the Speaker’s powers to disqualify under the tenth schedule of our Constitution.
Try this question from CSP 2019:
Q.The Ninth Schedule was introduced in the Constitution of India during the prime-ministership of:
(a) Jawaharlal Nehru
(b) Lal Bahadur Shastri
(c) Indira Gandhi
(d) Morarji Desai
What is the Tenth Schedule?
- The anti-defection law, referred to as the Tenth Schedule, was added to the Constitution through the Fifty-Second (Amendment) Act, 1985 when Rajiv Gandhi was PM.
- It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
- A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
- This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
- The law applies to both Parliament and state assemblies.
Exceptions under the law
- Legislators may change their party without the risk of disqualification in certain circumstances.
- The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
- In such a scenario, neither the members who decide to merge nor the ones who stay with the original party will face disqualification.
Is there any time limit to decide on the matter?
- The 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.
Under debate: Speaker’s power
- The power for this disqualification is vested in the Speaker, who is usually a nominee of the ruling party.
- Since no action was taken by the Speaker on the disqualification petitions, a writ petition was filed before the High Court of Manipur in Imphal seeking directions to decide on the petition.
- However, the court did not pass an order.
- It said that the larger issue of whether a High Court can direct a Speaker to decide a disqualification petition within a certain timeframe is pending before a Constitution Bench of the Supreme Court.
- The parties are left with the option to move the apex court or wait for the outcome of the cases pending before it.
The apex court’s reluctance to intervene
- In 2018, however, the High Court, refusing the preliminary objections of the Speaker, decided to hear the case on merits.
- It reasoned that since the remedy under Tenth Schedule is an alternative to moving courts.
- It said that if the remedy is found to be ineffective due to deliberate inaction or indecision on the part of the Speaker, the court will have jurisdiction.
- However, the High Court again did not pass orders since the larger issue is pending before the Supreme Court.
The apex court recommends-
- The apex court has expressed its displeasure with the Speaker’s lack of urgency in deciding the disqualification petitions.
- A three-judge bench of the Supreme Court ruled that Speakers of assemblies and the Parliament must decide disqualification pleas within a period of three months except in extraordinary circumstances.
- This settled the law for situations where the timing of the disqualification is meddled to manipulate floor tests.
- The court also recommended that the Parliament consider taking a relook at the powers of the Speakers citing instances of partisanship.
- The court suggested independent tribunals to decide on disqualification.
Also read:
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Anti Defection Law
Institutional fixes and the need for ethical politics
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Anti-defection law.
Mains level: Paper 2- What are the solution to the issue of bypassing of the anti-defection law by the political parties?
The article discusses the recent event in Madhya Pradesh where a group of legislature resigned bringing down the government. A most important issue arising out such incidents is circumventing of the laws made to avoid such things from happening. Several such issues along with their solutions are described here.
New method to bypass the anti-defection law
- The political activities in Madhya Pradesh represent a new method of bypassing the anti-defection law and toppling elected governments.
- The government in Karnataka was brought down in July last year in a similar manner with 17 MLAs of the ruling coalition resigning and joining the BJP.
- What method was used? Under this novel method, a set of legislators of the party in power is made to resign from the Assembly to reduce the total strength of the House enough for the opposition party to cross the halfway mark to form the government.
- In the ensuing by-elections, the members who resigned were then fielded as ruling party candidates (most of whom have been re-elected in the case of Karnataka).
- The same practice is likely to be repeated in Madhya Pradesh soon.
A question based on anti-defection law and its implication for healthy debate in the parliament was asked in 2013. And that issues still persist. So, take note of these issues.
Exploiting the loophole in the Tenth Schedule
- This method of mass defection circumvents the provisions of the Tenth Schedule of the Constitution (better known as the anti-defection law)
- What is the Tenth Schedule? The tenth schedule prescribes the grounds for disqualification of legislators: voluntarily giving up party membership and voting or abstaining to vote against party directions.
- Resignation is not mentioned as a ground for disqualification.
- However, the Speaker in Karnataka disqualified them for the rest of the Assembly’s term, thereby barring them from contesting the by-polls.
- While the Supreme Court upheld the disqualification.
- It stuck down the bar from contesting by-polls.
- In Madhya Pradesh, since the Speaker has accepted the resignation of the MLAs, the defectors can in any case contest the by-polls.
Damaging the underpinnings of democracy
- The recurrence of this model of defection signals the exploitation of the inherent weaknesses of the anti-defection law.
- While solo legislators jumping ship might have reduced now, “horse-trading” seems to have gone from retail to wholesale.
- This threatens the underpinnings of India’s electoral democracy since such surreptitious capture of power essentially betrays the people’s mandate in a general election.
Kihoto case is an important case in relation to the anti-defection law.
Time to reframe the anti-defection law
- In this context, it is important to examine whether the anti-defection law fulfils any purpose.
- This law raises fundamental concerns regarding the role of a legislator in a parliamentary democracy.
- Issues with the law: It denies the legislator the right to take a principled position on a policy matter and reduces her to an involuntary supporter of the whims of party bosses.
- Challenge to the constitutionality: The constitutionality of the Tenth Schedule was challenged for violating the Basic Structure of Constitution with regard to parliamentary democracy and free speech.
- Judicial review of the Speaker’s decision: The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) in a 3-2 verdict upheld the law while reserving the right of judicial review of the Speaker’s decision.
What are the shortcomings in the anti-defection law?
- Restriction on the freedom of legislator: The anti-defection law, on the one hand, severely restricts the freedom of a legislator and makes her a slave of party whips.
- Failure in preventing the horse-trading: On the other hand, it has not been able to meet its primary objective of preventing horse-trading and continues to be circumvented to bring down elected governments.
- This calls for reforms that address concerns at both ends of the spectrum.
Following two are the solutions offered here. They are important from Mains point of view. As solutions are often asked for the pressing issues.
Dinesh Goswami Committee and other suggestion
- Restrict the scope of the binding whip: For addressing the first issue, as the Dinesh Goswami Committee also suggested, the scope of the binding whip should be restricted to a vote of confidence.
- For addressing the second issue, it is best to institutionalise the Karnataka Speaker’s decision to bar the defected members from contesting in the ensuing by-poll, if not for a longer period.
- This will disincentivise MLAs from jumping ship.
- These reforms would require a constitutional amendment to the Tenth Schedule, an uphill task under the current circumstances.
Conclusion
We are facing a deeper challenge of the corrosion of India’s parliamentary system, for even in jurisdictions without such anti-defection laws, we do not see “horse-trading” and “resort politics”. Hence, beyond institutional fixes, we also need a popular articulation of an ethical politics that causes the public to shun such political manoeuvres.
Back2Basic: What is the Tenth Schedule?
- The Tenth Schedule was inserted in the Constitution in 1985.
- It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
- A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
- This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
- The law applies to both Parliament and state assemblies.
- Exceptions under the law: Legislators may change their party without the risk of disqualification in certain circumstances.
- The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
- In such a scenario, neither the members who decide to merge nor the ones who stay with the original party will face disqualification.
- Is there any time limit to decide on the matter? The 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.
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Anti Defection Law
Supreme Court Removes Manipur MLA Under The 10th Schedule
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Discretionary powers of the Supreme Court
Mains level: Executie and Judiciary
The Supreme Court has removed a Minister against whom disqualification petitions were pending before the Speaker since 2017.
- The court invoked its discretionary powers under Art. 142 of the Indian Constitution.
What is Article 142?
- Article 142 of the Constitution empowers the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
- Any decree so passed or orders so made shall be enforceable throughout the territory of India.
- The phrase ‘necessary for doing complete justice’ encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome.
- The power under Article 142 can be exercised when the SC has to decide difficult cases where adequate laws may not exist, or existing laws may not be adequate, in order to deliver complete justice.
Scope and limitations
- Supreme Court in State of Punjab v Rafiq Masih (2014) has opined that- Article 142 of the Constitution of India is supplementary in nature and cannot supersede the substantive provisions, though they are not limited by the substantive provisions in the statute”.
- Article 212 of the Constitution bars courts from inquiring into proceedings of the Legislature.
- In this case, however, prompted by the fact that the Speaker’s conduct has been called into question on several occasions, the court invoked Article 142.
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