The anti-defection law is contained in the 10th Schedule of the Constitution. It was enacted by Parliament in 1985. It came into effect on 1st March 1985. The seeds of the anti-defection law were sown after the general elections in 1967. For a long time, the Indian political scene was affected by political defections by members of the legislature. This situation brought about greater instability in the political system. The infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous defections by the legislators. Legislators used to change parties frequently, bringing about chaos in the legislatures as governments fell. In this backdrop, P. Venkatasubbaiah, a Congress MP in Lok Sabha proposed the setting up of a high-level committee to make recommendations to tackle the “problem of legislators changing their allegiance from one party to another”.
The Lok Sabha agreed to the setting up of a committee to examine the problem of political defections. The then Home Minister, Y B Chavan, headed the committee. The panel defined defection — and an exception for genuine defectors. According to the Chavan Committee, defection was the voluntary giving up of allegiance of a political party on whose symbol a legislator was elected, except when such action was the result of the decision of the party.
In its report, the Chavan Committee noted “that the lure of office played a dominant part in decisions of legislators to defect”. It pointed out that out of 210 defecting legislators in seven states, 116 were given ministerial berths in governments which they helped form by their defections. To combat this, the Committee recommended a bar on defecting legislators from holding ministerial positions for a year or until the time they got themselves re-elected. It also suggested a smaller Council of Ministers both at the levels of the Centre and the States. The Committee was in favour of political parties working together to help evolve a code of conduct to effectively tackle disruptions.
THE TENTH SCHEDULE
The Bill to amend the Constitution was introduced by Rajiv Gandhi’s Law Minister Ashoke Kumar Sen. The statement of objects and reasons of the bill said: “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.
The amendment, by which the Tenth Schedule was inserted in the Constitution, did three broad things. Firstly, it made legislators liable to be penalised for their conduct both inside (voting against the whip of the party) and outside (making speeches, etc.) the legislature. The penalty being the loss of their seats in Parliament or the state legislatures. Secondly, it protected legislators from disqualification in cases where there was a split (with 1/3rd of members splitting) or merger (with 2/3rds of members merging) of a legislature party with another political party. Thirdly, it made the Presiding Officer of the concerned legislature the sole arbiter of defection proceedings.
CHALLENGES
No sooner was the law put in place than political parties started to stress-test its boundaries. The issue of what constitutes a spilt in a political party rocked both the V P Singh and the Chandra Shekhar governments. The role of the Presiding Officers also became increasingly politicised. The intervention of the higher judiciary was sought to decide questions such as what kinds of conduct outside the legislature would fall in the category of defection, and what was the extent of the Speaker’s power in deciding defections. The Supreme Court, while upholding the supremacy of the Speaker in defection proceedings, also held that the Speaker’s decisions were subject to judicial review.
91ST CONSTITUTIONAL AMENDMENT ACT, 2003
A Constitutional amendment bill was introduced in the Lok Sabha to address deficiencies in the Tenth Schedule. A committee headed by Pranab Mukherjee examined the bill. The Committee observed: “The provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further it is also observed that the lure of office of profit plays dominant part in the political horse-trading resulting in spate of defections and counter defections
The one-third split provision which offered protection to defectors was deleted. Now only a merger of two-third members of a political party in the legislature with members of another political party in the legislature can take place. The amendment also limited the size of the Council of Ministers to fifteen per cent of the members of the Lok Sabha and the Vidhan Sabha, and preventing defecting legislators from joining the Council of Ministers until their re-election.
ABUSE OF THE LAW
Recent events in Karnataka and Goa have demonstrated, these amendments have had only limited impact. The removal of the split provision prompted political parties to engineer wholesale defections (to merge) instead of smaller ‘retail’ ones. Legislators started resigning from the membership of the House in order to escape disqualification from ministerial berths. The ceiling on the size of the Council of Ministers meant an increase in the number of positions of parliamentary secretaries in states.
The Speakers started taking an active interest in political matters, helping build and break governments. The anti-defection law does not specify a timeframe for Speakers to decide on defection proceedings. When the politics demanded, Speakers were either quick to pass judgment on defection proceedings or delayed acting on them for years on end. In Telangana, some members of the Congress legislature party became members of the Telangana Rashtriya Samiti (TRS) without being disqualified on grounds of defection as the speaker delayed the defection proceedings.
ROLE OF THE SPEAKER
A Constitutional challenge to the Tenth Schedule was settled by the apex court in Kihoto Hollohan (1992) case involving the speaker of the Manipur Legislative Assembly. 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 i.e. certain basic features of the Constitution cannot be altered by amendments by Parliament, laid down in the landmark judgment in Kesavananda Bharati vs State of Kerala (1973). The petitioners argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias. The Supreme Court stated that Schedule’s provisions were intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.
An independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of the democratic system which is a basic feature of our Constitution. 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 and, therefore, he does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature. The Speaker’s decision disqualifying a Member of a House under paragraph 6(1) of the Tenth Schedule is not immune from judicial scrutiny. It is subject to judicial review by High Courts and the Supreme Court.
REFORMS
The Anti-defection Law in India needs urgent reforms. Firstly, any member of the legislature who defects from one political party to another political party must not only be disqualified but also be barred from contesting election for the Lok Sabha or legislative assembly till its term expires. This can prevent defections and curb buying of MLAs in the event of hung assembly.
Secondly, a time frame of fifteen to thirty days must be provided for the Speaker to adjudicate on defection proceedings. The Speaker cannot be allowed to postpone indefinitely adjudication on defectors.
Thirdly, independent members must be allowed to join a political party within a time frame of six months. This will give political stability in the Lok Sabha or the state legislature, which will help in curbing defections from one party to another.
Fourthly, there should be a fixed time for conducting the floor test. A floor test is the determination on the floor of the House whether the Prime Minister or the Chief Minister commands the support of the majority of the MPs or the MLAs. This can be done necessarily by means of a recording the vote of each MP or MLA in the House. This determination of majority is done in a sitting of the legislature, for which the legislature has to be convened. There should be live telecast of the floor test and voting must be done by open ballot which will curb defection of MPs or MLAs to make it more transparent.