ANTI-DEFECTION LAW

Why in the news?

Recently, Chief Minister Sukhvinder Singh Sukhu introduced the Himachal Pradesh Legislative Assembly (Allowances and Pension of Members) Amendment Bill 2024.

What is the anti-defection law?

Defection involves changing political allegiance, especially when a member of a political party departs from their party to join another party or become an independent.

The anti-defection law penalizes individual Members of Parliament (MPs) or Members of the Legislative Assembly (MLAs) who switch from one party to another.

In 1985, Parliament incorporated the Tenth Schedule into the Constitution through the 52nd Amendment Act, 1985, to ensure government stability by deterring legislators from switching parties. This Tenth Schedule, commonly referred to as the Anti-Defection Act, was designed to address issues related to political defection.

These rules might be intended to preserve political party unity and stability as well as to guarantee that elected officials answer to the people who chose them.
Anti-defection laws permit political parties to expel members who leave, while in some nations they may also impose other sanctions or prevent defectors from running for public office.

Why is an Anti-Defection Law Necessary?

An anti-defection law is essential in India to prevent elected representatives from frequently switching political parties or factions, which can undermine government stability and accountability.

• Preventing ‘Aya Ram – Gya Ram’ Politics: The term ‘Aya Ram – Gya Ram’ refers to the practice of legislators frequently changing parties, a phenomenon highlighted by Haryana MLA Gaya Lal in 1967. He switched parties multiple times within a short span, from Congress to United Front and back, demonstrating the need to curb such instability.
• Curtailing Money Power: The law aims to reduce the corrupting influence of money and power on politicians, ensuring they remain accountable to the voters who elected them.
• Ensuring Cohesion: It seeks to foster stability and unity within political parties, preventing fragmentation of the party system.
• Promoting Political Stability: By reinforcing democratic stability, the law ensures that administrative functions and legislative programs are not disrupted by defecting parliamentarians.
• Enhancing Responsibility and Loyalty: It encourages members of parliament to remain loyal and responsible to the parties they were aligned with at the time of their election.

Grounds for Defection :

1. Voluntary Resignation: If a member who has been elected voluntarily resigns from their political party membership.
2. Breach of Party Instructions: If a member votes or abstains from voting in a manner that contradicts the directives issued by their political party or its authorized representatives, without prior authorization.
3. Independent Member Joining a Party: If a member elected as an independent subsequently joins a political party.
4. Nominated Member Joining a Party Post-Six Months: If a member who was nominated to the legislative body joins a political party after the first six months of their nomination.

Other Provisions :

Exceptions to Disqualification for Defection: The disqualification for defection does not apply in the following scenarios:

• Party Merger: If a member leaves their party due to its merger with another party, provided that the merger is sanctioned by at least two-thirds of the party’s members.
• Presiding Officer Status: If a member, having been elected as the presiding officer of the House, voluntarily resigns from their party or reaffiliates after leaving the office. This exception is granted to uphold the office’s impartiality and dignity.

Authority on Defection Matters: The Speaker of the House or the Chairman of the Legislative Council has the sole authority to adjudicate on matters of defection, and their decisions are conclusive and not subject to judicial review.

Rule-Making Authority: The presiding officer of a House has the authority to establish rules to implement the provisions of the Tenth Schedule. These rules stipulate that a defection case can only be considered upon receiving a formal complaint from a member of the House.

Role of the Whip: The whip is tasked with conveying the party’s stance to its members and ensuring their votes align with that stance. Members who defy the whip and vote against the party’s position may face disciplinary measures under anti-defection laws.

Amendments to the Anti-Defection Law: The 91st Constitutional Amendment Act of 2003 introduced several changes to the anti-defection law. Key amendments include:

• The Central Council of Ministers, including the Prime Minister, must not exceed 15 per cent of the Lok Sabha’s total membership.
• Members of either House of Parliament who are disqualified due to defection are also ineligible for ministerial appointments.
• The Council of Ministers in a state, including the Chief Minister, must not exceed 15 per cent of the Legislative Assembly’s total membership, with a minimum of 12 ministers.
• State legislature members disqualified due to defection are also barred from being appointed as ministers.

Judicial Observations on Defection in India:

1. Kihoto Hollohan vs. Zachillhu and Others (1992): The Supreme Court of India affirmed the constitutionality of the anti-defection law, stating that its provisions are essential to prevent government destabilization and maintain the integrity of the electoral system.
2. Viswanathan vs. Hon’ble Speaker, Tamil Nadu Legislative Assembly (1995): The Supreme Court established that the Speaker of a legislative assembly has the authority to make decisions on defection cases, and such decisions are final and cannot be contested in a court of law.
3. Ravi S. Naik vs. Union of India (1994): This case clarified that the Speaker or Chairman of a legislative body has the authority to disqualify an elected representative on grounds of defection.

Proposed Reforms to the Anti-Defection Law in India:

1. Decision by President/Governor: It has been proposed that the disqualification of members for defection should be determined by the President or Governor based on the advice of the Election Commission.
2. Increasing the Threshold for Defection: To minimize defections, it is suggested that the disqualification threshold be raised from one-third to two-thirds or even three-fourths of the members, making it more challenging for political parties to split.
3. Conditional Allowance for Defections: Some propose that defections should be permitted under specific conditions, such as when a political party merges with another or if a member is expelled from their party.
4. Independent Authority for Disqualification: There is a suggestion to replace the Speaker’s role in disqualification cases with an independent body, such as the Election Commission, to ensure impartiality.
5. Joining Parties for Independents: Recommendations include allowing independent members to join political parties without facing disqualification.
6. Grace Period for Defectors: It has been suggested that a grace period be granted to members who have defected, enabling them to demonstrate their commitment to their new party.
7. Decision Timeline: Following a Supreme Court ruling, it is recommended that the Speaker of the Legislative Assembly should resolve disqualification petitions under the Tenth Schedule within three months.

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