2019 – Posted in: RSTV

Anti Defection Law

In News

A few days back Karnataka Assembly speaker K.R. Ramesh Kumar disqualified 17 MLA’s for the entire term of the ongoing 15^th assembly.

The 17 disqualified MLAs include 14 from the Congress and the JDS till the end of the current term i.e. till 2023.

The Anti Defection Law

The Anti Defection Law tries to provide a stable government by ensuring that legislatures do not switch sides and reduce the government’s minority midway during their tenure. It is contained in the 10^th schedule of the constitution. It was introduced by the 52^nd amendment in 1985 during Rajiv Gandhi’s tenure. It became effective from 1^st March 1985. The Anti Defection Law lays down the process by which legislatures may be disqualified for defection. The decision of disqualification is taken by the presiding officer of the legislature based on a petition by any other member of the house.

What is Defection?

Legislatures are considered to defect if they have voluntarily given up membership of their party or disobey directives of the party leadership on a vote. The law applies to the Parliament as well as State assemblies. Originally, the constitution carried no reference to the political parties. The need for anti-defection law arose in the late 1960s as defections brought about great instability in the political system.

Need for Anti Defection Law

1967 elections marked the beginning of the coalition era
Between 1967 and 1971, close to 142 MP’s and over 1,900 MLA’s defected to other parties
In 1967 Haryana MLA Gaya Lal changed his party thrice in a day inspiring the phase “Aaya Lal Gaya Lal” in Indian politics.
Many legislatures change parties continuously causing the government to fall both the centre and the state
The Anti Defection Law was later amended in 2003 by the 91^st Amendment Act
The law before the 2003 Amendment as defined by the one-third of elective members of a party as ‘merger’
A merger avoided the penalty of disqualification under the act and led to disqualification
The 2003 amendment stated that two-third members of the party must be in favour of a merger to gain validity before the law
The amendment also made it mandatory for all to resign from their legislative membership and seek re-election in the house.

While the law has been largely successful in serving its purpose again. The law doesn’t specify a time period for the presiding officer to decide on a disqualification. Since the court can only into been into the decision of presiding officer, the petitioner has no option but only wait for the decision to appeal. The delay also leads to defective members continuing to be members of the house.

The Anti Defection Law was brought back into focus by the political crisis in Karnataka. It started with 15 MLA’s resigning on the 6^th of July on the days that followed former Chief Minister H.D. Kumaraswamy was defeated in the motion of confidence. The trust was itself taken after multiple missed deadlines. The Karnataka assembly is a 225 member house including one nominated anglo MLA. Speaker Ramesh Kumar disqualified 17 MLA’s bringing down the strength of the house to 207 that excludes the speaker. This brought down the majority in the assembly to 104. The BJP has 105 MLA’s and the support of an independent MLA who was till recently a minister in the former H.D. Kumaraswamy government. Disqualification under anti-defection law bars MLA’s punished for defection from occupying an elected office. Speaker Ramesh Kumar has rolled that the disqualified MLA’s can’t contest elections till the term of the current assembly ends which means the disqualified MLA’s can’t contest poles until May 2023 unless the house is dissolved before that.

In 2017 in a similar case of defection in Tamil Nadu, 18 MLA’s after Jayalalitha’s death of the ruling AIDMK were disqualified. Last year the Election Commission ruled that the rebel MLA’s could contest by-elections necessitated by the disqualification. Then Chief Election Commissioner O.P. Rabat said defection disqualifies MLA’s from holding the current elected office but not from contesting elections in the future. The bi-poles were held in April this year and 14 of the disqualified MLA’s had contested then.

Goa also witnessed defection, 10 of the 15 congress MLA’s in during leader of the opposition Chandrakant Kavlekar broke away from the party. Assembly Speaker Rajesh Patnaikar recognised the loop indicating that the two-third merger of the party with the BJP was valid under the Anti-defection law. The next day all 10 join the BJP in presence of the working party President J.P. Nada in Delhi rose to 27 in the 40 member assembly.

Similarly in Telangana, 12 of the 16 Congress MLA are merged with the TRS trend in the 119 member house came down to 18. After the party’s Telangana Chief Uttam Kumar Reddy tendered his resignation from the assembly after being elected to the Lok Sabha. The 12 MLA’s count for two-thirds of the Congress Legislature party which has an effective strength of 18. They did not tracked provision of the anti-defection law. In June this year, 4 GDP Rajya Sabha MP’s in Andhra Pradesh switched side in BJP. The BJP had 6 MP’s in the Rajya Sabha when 4 of them announced that they were joining the BJP. They met Rajya Sabha Chairman and Vice-President M. Venkainaidu and submitted their resignations from the TDP.

Defections have been part of India’s democratic process ever since the 1^st elections in 1952. Parliament amended the constitution in 1985 in an attempt to stop this and brought in the anti-defection law to deny the rules under which it can be done.

Provision for disqualification

There are 2 grounds on which the member of the legislature can be disqualified. First, if the member voluntarily gives up the membership of the party. Voluntarily giving membership is not same as resigning from the party.

Even without resigning a legislature can be disqualified if by his conduct the Speaker or the Chairman of the house concludes that the member has voluntarily given up the membership.

Second, if the legislature votes against the direction of the party and his/her action is not condoned by the party. This also applies to independent law makers/nominated members who join a party.

Exception for Disqualification

If at least two-thirds of members of a particular party decide to merge with another party. In such a scenario, both members who have defected as well as those who haven’t will be protected from disqualification.

Another exception is if the original party merges with another party. Also the decision to disqualify lies with Speaker or Chairman of the House.
The Supreme Court has interpreted different provisions of the law in different ways in different cases. For e.g.: the law provides for a member to be disqualified if he/she voluntarily gives up his/her membership. However, in the Ravi Naik’s case vs Union of India, 1994, the apex code interpreted that in the absence of a formal resignation by the member the giving up of membership can be inferred by his conduct.
Other judgments like the G. Vishwanath, vs the Honorable Speaker Tamil Nadu Legislative assembly draws another case 1996. The Supreme Court rule that members who have publicly express opposition to their party or support to another party were deemed to have resigned.

The Anti-Defection Law initially said that the decision of the presiding officer is not subject to judicial review but the Supreme Court struck down this condition in 1992, thereby allowing the peeps against the presiding officer decision in the High Court as well as the Supreme Court.

Recommendations

The 1999 Law Commission suggested that the merger should not be exempted from the disqualification.
There have been also the demands that the decision to disqualify should be taken by the Governor or the President on the advice of the Election Commissioner instead of the Speaker.
The Constitution Review Commission of 2002 suggested that Defectors should be barred from holding any public office
Civil Society groups also suggested that the voters should be given Rights to recall MP’s and MLA’s who have defected. There are also demands to review the law so as to end conflicts between the legislature and the judiciary.

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