Anti Defection Law: Defection vs Dissent debate

Is Anti Defection Law, A deadly blow for parliamentary dissent?

What is defection?

Defection in general is to abandon a position or association, to join an opposing group. Political defection is abandoning a political party, often to join another political party in lure of office and political advantage.

What is dissent?

Dissent means holding of different opinions and views. When dissent is brought on the floor of the parliament it is called as parliamentary dissent.

The Indian Constitution in spite of being the lengthiest written constitution, still have to depend on certain unarticulated traditions and conventions for its successful working. Such traditions and conventions can be called as constitutional or social morality.

One such convention relates to dissent (i.e difference of opinion). A classic example of a convention related to dissent was, In June 1951, when a sizable section of the Indian National Congress members fell in disagreement with the INC government led by J Nehru, the dissidents led by J B Kripalani walked out of the party and founded the Kisan Mazdoor Praja Party (KMPP). All the members of the party who were parliamentarians or state legislators voluntarily resigned (not out of compulsion of law), and most of them sought reelection to appropriate legislature from the same constituency.

Over the years, these traditions and conventions were unfortunately forgotten and the very nature of politics and the political parties changed. By the second half of the 1960's, "The one party dominance system" or the "Congress system" gave way to "Multi-party system" with the emergence of regional political parties in the political landscape of India. This was accompanied with the phenomenon of large scale political migrations. Some legislators belonging to parliament and state legislative assemblies changed their membership from one political party to another, often guided by the principle of narrow self-interest. In 1967, Gaya Lal (a member of the Haryana Legislative Assembly from the Hasanpur constituency) changed his political party thrice in a day. Since then "Aaya Ram Gaya Ram" became the popular expression for frequent floor-crossing by legislators. This led to corruption on the floor of the house, frequent realignment, fragile and unstable alliances, political instability, unnecessary election expenditures, etc.... Office baited defection became the new political culture. Within a brief span of 4 years (1967-71), there were 142 defections in Parliament and 1969 defections in State Assemblies across the country. Thirty-two governments collapsed and 212 defectors were rewarded with ministerial positions.

Defection poses a threat to the very essence of parliamentary system. This led to enactment of Anti Defection Law. The disqualification of members of parliament and of state legislatures on the ground of defection is mentioned in 10^th schedule of the constitution (popularly referred to as the Anti- Defection Law). It was inserted by 52^nd constitutional amendment act 1985.

Provision in the Tenth Schedule

Grounds of Disqualification

• If a member of a house belonging to a political party:
• Voluntarily gives up the membership of his political party on whose ticket he contested, or
• Votes, or does not vote in the legislature, contrary to the directions of his political party.
• However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
• If an independent candidate joins a political party after the election.
• If a nominated member joins a party six months after he becomes a member of the legislature (Which means a nominated member can join any political party with six months from the date of his nomination)

 Exception

• Any person elected as a speaker or chairman could resign from his party and rejoin the party if he demitted that post.
• A person shall not be disqualified if his original political party merges with another, and:
• He and other members of the old political party become members of the new political party, or

• He and other members do not accept the merger and opt to function as a separate group.

This exception shall operate only if not less than two-thirds of the members of party in the House has agreed to the merger. This exception provision was added by 91^st amendment act of 2003.

Who has the power to disqualify a MP on the ground of defection?

·   The decision on questions of disqualification on ground of defection is referred to the chairman or the Speaker of such House, and his decision is final.

·     If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.

Important judgments and rulings by Judiciary on the ambiguities of anti-defection law

On question whether the right to freedom of speech and expression is curtailed by the Tenth Schedule, the Supreme Court in Kihota Hollohon vs. Zachilhu and Others case 1993 held that the provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Article 105 (Powers, privileges, etc…, of the houses of parliament and of the members and committees thereof) and Article194 (Powers, privileges, etc…, of the houses of legislatures and of the members and committees thereof) of the Constitution. In the same case SC also held that the provision of granting finality to the orders of the Speaker is valid. However, the High Courts and the Supreme Court can exercise judicial review under the Constitution. Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen.

On question whether only resignation constitutes voluntarily giving up membership of a political party, the Supreme Court in Ravi S Naik vs. Union of India case 1994 held that the words “voluntarily giving up membership” have a wider meaning. An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party.

On question whether a member can be said to voluntarily give up his membership of a party if he joins another party after being expelled by his old political party, the Supreme Court in G. Vishwanathan vs. Speaker, Tamil Nadu Legislative Assembly case 1996 held that once a member is expelled, he is treated as an ‘unattached’ member in the house. However, he continues to be a member of the old party as per the Tenth Schedule. So if he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party.

On question whether a Speaker can review his own decision to disqualify a member under the Tenth Schedule; the Supreme Court in Dr. Kashinath G Jhalmi vs. Speaker, Goa Legislative Assembly case 1993 held that the Speaker of a House does not have the power to review his own decisions to disqualify a candidate. Such power is not provided for under the Schedule, and is not implicit in the provisions either.

On question when can a court review the Speaker’s decision making process under the Tenth Schedule, the Supreme Court in Rajendra Singh Rana and Others vs. Swami Prasad Maurya and Others case 2007 held that if the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties.

Positives of 10^th schedule

1. It helps in reducing corruption on the floor of the house to some extent; by restricting inter party movement of MPs.
2. It provides stability to the government by preventing shift of party allegiance.
3. It promotes party discipline.
1. It ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party policies.
2. It helps in maintain consensus among MPs of a single party on the floor of the house.
4. Lessen the burden of unnecessary election.
1. It facilitates democratic realignment of parties in the legislature in the form of merger of parties.

 Negatives of 10^th schedule

1. It only prevents individual defections and sanctions mass defection, in the name of mergers. It is said that “it banned only retail defection and legalized wholesale defection”.
2. It does not regulate the activities of MPs outside the House.
3. The phrase “voluntarily giving up membership” is too vague and needs comprehensive revision.
4. Unnecessary and unexplained difference between independent and nominated members in event of joining a political party.
5. It violates the basic principle of representative democracy.

In representative democracy the elected representatives are expected to act in public interest. But Anti Defection law breaks the link between the elected representative and his electors by empowering party over people. Individual legislator of a party is legally made powerless in front of the party high command.

Mere obedience of the despotic dictates of the party whips undermines the democratic sprit.

6. Doesn’t differentiate between dissent and defection. It curbs legislature’s right to dissent.

Lack of right to parliamentary dissent, is often regarded as the reason behind falling standard of debates inside the house as MP keep themselves away from expressing their independent view on government policies. Dr. Ambedkar is of view that “dissent leads to debate which in turn is lifeline of democracy”. Former president of India, Pranab Mukherjee, on his visit to Auckland in 2016 has stated that “Without dissent, parliamentary system is dysfunctional”.

Recommendations of various bodies on reforming the Anti-defection law

Dinesh Goswami committee on electoral reform (1990) recommended that

• Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.
• The issue of disqualification should be decided by the president / governor on the advice of the Election Commission.

Halim Committee on anti-defection law (1998) recommended that

• The words ‘voluntarily giving up membership of a political party’ be comprehensively defined.
• Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members.
• The term political party should be defined clearly.

170^th report of Law Commission recommended

• Provisions which exempt splits and mergers from disqualification to be deleted.
• Pre poll electoral front should be treated as political parties under anti defection law.
• Political parties should limit issuance of whip to instance only when the government is in danger.

Election commission is of the opinion that decision under 10^th schedule should be made by the president / governor on the binding advice of election commission.

The Venkatachaliah Commission recommended

• The defector should be barred from holding any ministerial or remunerative political office for the remaining term of the house.
• It also said that the vote of any defector should not be counted in a confidence or no confidence motion.

The National Commission for Review of Working of Constitution (NCRWC) recommended that every defecting member must go for re election so as to discourage mass defection.

91^st amendment act 2003 has further strengthened the anti-defection law by ensuring that the legislators who are disqualified on the ground of defection shall also be disqualified to be appointed as ministers and also disqualified to hold any remunerative political post.

There is no doubt 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. It is vital that MP’s are not turned into party robots. In this context, Manish Tewari’s private member bill in 2010 which lapsed, without a discussion merits mention. He suggests that anti-defection law be restricted to votes of confidence and money bills. Such a move will retain the objective of maintaining the stability of the government while allowing MP's to vote freely (subject to the discipline of the party whip) on other issues.

In the U.K., Australia and the U.S., parliamentarians and senators often take positions contrary to their parties or vote against the party’s view, yet continue within the same party. Eg: Many labor party MP's criticized Tony Blair's foreign policy in Middle East in general and his participation in Iraq war in particular. When danger of democracy turning into dictatorship still haunts Indian polity, it is important that the right to dissent is secured effectively. Apart from political participation and institutional mechanisms, dissent and dialogue play a constructive impact on democracy.