Anti-defection laws are the laws that prevent defection. In simpler words, these rules prohibit the candidates who have lost the election from a particular political party, to change their party post-election. This law also applies to the nominated candidates, who have a time slot of 6 months to choose any one of the available political parties to be a part of, and disallows them from joining any party after the mentioned time slot has expired. Also, defection doesn’t only mean swapping party ties, but it includes the act of voting or abstaining from voting as contrary to what the party does, and if no prior permission for this differed view was sought or if this defection hasn’t been condoned by the party within 15 days, then the law applies.
The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate.[1] The schedule 10 to Indian constitution lays down provisions with regard to anti-defection. Any question with regard to defection is to be decided by the speaker or the chairman, as the case might be. The seventh para to this schedule is virtually inoperative by the virtue of the judgement in Kihoto Hollohon v. Zachilhu [(1992) 1 S.C.C. 309] wherein this para has been ruled to be violating the basic structure theory as it took away the Judiciary’s function of Judicial Review completely. Also, this schedule has been added to the constitution by virtue of the 52nd Constitutional Amendment Act, 1985.
But there are some exceptions and exemptions to be kept in mind as well, like, 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.[2] Also what is not defection is, a split in a political party if a complete political party merges with another political party, or if a new political party is created by the elected members of one party, or if he or she or alternative members of the party haven’t accepted the merger between the two parties and opted to perform as a separate group from the time of such a merger. [3]
Again, essentially, 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. [4]
As per the 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’. Such defections were not actionable against. The Dinesh Goswami Committee on Electoral Reforms, the Law Commission in its report on “Reform of Electoral Laws” and the National Commission to Review the Working of the Constitution (NCRWC) all recommended the deletion of the Tenth Schedule provision regarding exemption from disqualification in case of a split. Finally the 91st Constitutional Amendment Act, 2003, changed this. So now at least two-thirds of the members of a party have to be in favour of a “merger” for it to have validity in the eyes of the law. “The merger of the original political party or a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger,” states the Tenth Schedule.[5]
The Supreme Court, in the Ravi Naik vs. Union of India case, has interpreted the phrase ‘voluntarily gives up his membership.’ It says: “The words ‘voluntarily gives up his membership’ are not synonymous with ‘resignation’ and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. In another judgment in the case of Rajendra Singh Rana vs. Swami Prasad Maurya and Others, the Supreme Court held that the act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government itself would amount to an act of voluntarily giving up membership of the party on whose ticket the said members had got elected.[6]
Rule 2(1)(a) of the Tenth Schedule mentions that the member of the House would be disqualified from the party if he voluntarily gives up his membership of the political party. But the Schedule does not clarify what “voluntarily giving up” means? Does it only cover the resignation of party member or does it have a wider meaning than that? In G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly ((1996) SCC 353), a question arose whether joining another political party after being expelled from the original party would amount to voluntarily giving up the membership or not. It was held in this case that on being expelled from the party, the member, though considered ‘unattached’, still remains the member of the old party for the purpose of the Tenth Schedule. However, if the expelled member joins another political party after expulsion, he is considered to have voluntarily given up the membership of his old political party. In Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque, BSP (January 27, 2008), the court held that a speech by a member in a public meeting that he belongs to another political party by heart, would amount to voluntarily giving up the membership of the former party.[7]
A disadvantage of the curtailment on the legislators to speak up their mind or to differ from the views of the party, is that then the legislators don’t research or be mindful about the policy decisions being made by their party leaders because they know that they just have to follow the herd like a sheep. Discussions can be made livelier and better policies can be thus drafted if the legislators are allowed to think out of the box, put up their suggestions, indulge in and create a positive atmosphere for a healthy debate.
The issue regarding free speech of legislators being curtailed due to this law was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy. [8]
All in all the law on anti-defection is contained in the tenth schedule to our constitution, which might not be free from challenges or ambiguities. There are sure some lacunas that can be cured by making the provisions less vague and lesser open to interpretation. But there is always hope for the unseen future, and maybe some future amendments to the law could rectify the current situation.
Sources:
[1] https://www.prsindia.org/theprsblog/anti-defection-law-explained
[2] https://www.prsindia.org/theprsblog/anti-defection-law-explained
[3] https://www.clearias.com/anti-defection-law-is-it-time-for-reconsideration/
[4] https://www.prsindia.org/theprsblog/anti-defection-law-explained
[5] http://archive.indianexpress.com/news/antidefection-law/339606/
[6] https://www.thehindu.com/news/national/What-the-Anti-Defection-Law-says/article15777794.ece
[7] https://www.latestlaws.com/articles/analysis-of-anti-defection-laws-in-india-by-sakshi-rewaria/
[8] https://www.clearias.com/anti-defection-law-is-it-time-for-reconsideration/
