Anti-Defection Law,1985, Disqualification and Loopholes in Detail
Defection means an act of leaving a political party, to go to another political party. Originally, Constitution of India had no mention of political parties. But, ever since the multipart system evolved, the Indian Parliamentary System has witnessed defections in large numbers from one political party to another, resulting almost in the breakdown of public confidence in a democratic form of government. The practice of switching political sides to grab office was popularly known as HorseTrading. Anti-defection is the law by which the persons do defection are punished according to the rules of the law. A person so found doing defection is disqualified to be a MP or MLA as the case may be. As per Prof. Madhu Dandavate, the defection as “an elected member of a legislature who had been allotted the reserved symbol of any political party can be said to have defected, if after being elected as a member of either house or of legislative assembly or legislative council of a state, he voluntarily renounces allegiance to or association with such political party, provided hi action is not in consequence of a decision of the party concerned.”
GROUNDS FOR DISQUALIFICATION IN THE ANTI-DEFECTION LAW:
As per the Anti-defection law, Any MP or MLA can be disqualified on the following grounds:
➢ If an elected member voluntarily gives up his membership of a political party.
➢ If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorized to do so, without obtaining prior permission.
➢ An independent member will also be disqualified if he joins any political party after his election. ➢ A nominated member and who is not a member of any political party before the expiry of six months from the date on which he takes his seat shall be disqualified if he joins any political party after the expiry of the said period of six months.
EXEMPTION FROM DISQUALIFICATION IN THE ANTI-DEFECTION LAW:
Disqualification provisions do not apply in the following circumstances:
➢ If a legislature party decides to merge with another part and such a decision is supported by not less than two-thirds of its members.
➢ If a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of People or of the Legislative Assembly of a State or to the office of the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of Legislative Council of a State, to sever his connections with his political party without incurring disqualifications.
POWER OF DETERMINATION OF DISQUALIFICATION AND RULE MAKING POWER
The question as to whether a MP or MLA has become subject to the disqualification will be determined by the presiding officer of the House. Where the question is with reference to the presiding officer himself it will be decided by a member of the House elected by the House on that behalf. Apart from that Chairman or the Speaker of a House has been empowered to make rules for giving effect to the provisions of the Tenth Schedule. The rules shall be laid before the House before the 30 days and shall be subject to modifications/ disapproval by the House. The presiding officer can resort to defection only if even the member of House gives a complaint against it. Presiding officer has to give a chance to the accused person to put his side in front of the house before taking the final decision.
LOOPHOLES IN THE ANTI-DEFECTION LAW:
- POWER TO THE SPEAKER– As per Rule 6 of the Schedule, the Speaker of the House or the Chairman has been given wide and absolute powers to decide the case related to disqualification of the members on the grounds of defection. The Speaker still remains as the member of the party which had nominated him/her for the post of speaker. Mr. K.P. Unnikrishnan, a member of Congress party in the Lok Sabha, had said that “by making the speaker the sole repository of all the judgement, you are allowing them to play havoc”.
One of the major criticisms of this power is that not necessary the speaker has legal knowledge and expertise to look upon and perform such acts in such cases.
- JUDICIAL REVIEW- As per the Rule 7, which bars the jurisdiction of the courts in any matter connected with disqualification of a member of a House, which states that it is outside the jurisdiction of all courts including the Supreme Court under Article 136 and High Courts under Article 226 and 227 of the Constitution to review the decisions made by the Speaker in this regard.
This can have terrible consequences in the light of difficulties enumerated above. The legislature in a way tried to restrict the power of judiciary provided under the Constitution, which is not tenable. The rule barring the jurisdiction of Courts has been challenged multiple times before the courts and the Court, in Kihoto Hollohon v. Zachilhu and Others, held that the law is valid in all respects expect on the matter related to the judicial review, which was held as unconstitutional.
Any law affecting Articles 136, 226 and 227 of the Constitution is required to be ratified by the States under Article 368(2) of the Constitution. As the required number of State assemblies had not ratified the provision, the Supreme Court declared the rule to be unconstitutional.
The Court also held that the Speaker, while deciding cases pertaining to defection of party members, acts as a tribunal and nothing more than that, and that his/ her decisions are subject to the review power of the High Courts and the Supreme Court. Mentioning a rule of caution, the Supreme Court warned against the exercise of power of judicial review prior to making of any decision by the Speaker.
- NO INDIVIDUAL STAND ON PART OF MEMBERS– According to the Rule 2 it can be seen that the anti-defection law puts the members of the party into a bracket of obedience in accordance with the rules and policies of the party, restricting the legislator’s freedom to oppose the wrong acts of the party, bad policies, leaders and bills.
A political party acts as a dictator for its members who are not allowed to dissent. In this way it violates the principle of representative democracy wherein the members are forced to obey the high command. In a well-settled representative democratic environment, people wish for that the electorate are taken care of their acts rather than working on the instructions and wishes of the party leaders and their policies.
With the increasing powers being given to a party member, the members are not allowed to vote on any issue independently whether they are a part of party manifesto or not. The law tends to blur the distinction between defiance on part of members and defection of the members leading to their disqualification. With the lack of individuality on the part of members belonging to their parties, the anti-defection laws have failed to achieve the desired results.
- WHAT AMOUNTS TO ‘VOLUNTARILY GIVING UP’- 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?
This question had arisen before the Supreme Court in Ravi Naik v. Union of India the Court while interpreting the phrase held that it has a wider connotation and can be inferred from the conduct of the members. The words ‘voluntarily gives up his membership’ were not held synonymous with ‘resignation’. It was held that a person may voluntarily give up his membership of a political party even without tendering his resignation from the membership of that party.
In G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly, 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 Rajendra Singh Rana v. Swami Prasad Maurya and Others, is yet another case which expanded the meaning to the words ‘voluntarily giving up of the membership.’ It was held in the case that a letter by an elected party member to the Governor requesting him to call upon the leader of the opposite party to form a Government would by itself amount to an act of voluntarily giving up membership of the party of which he is an elected member.
- PROBLEM WITH MERGER PROVISION– While Rule 4 of the Tenth Schedule seems to provide some exception from disqualification of members in the cases relating to mergers, there seems to be some loophole in the law. The provision tends to safeguard the members of a political party where the original political party merges with another party subject to the condition that at least two-third of the members of the legislature party concerned have agreed to such merger. The flaw seems to be that the exception is based on the number of members rather than the reason behind the defection. This tends to undermine the democracy of the nation and thus the provision seems to be flawed. The provision could have been more useful if it had taken into consideration the real reason for merger rather than the number of members involved.