Political Defections And Legislative Stability - A Critical Analysis Of India’s Anti-Defection Law
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POLITICAL DEFECTIONS AND LEGISLATIVE STABILITY:
A CRITICAL
ANALYSIS
OF INDIA’S ANTI-DEFECTION LAW Annapurna M, LLM, CHRIST (Deemed to be University), Bangalore Central Campus.
ABSTRACT
The Anti-Defection Law is the foreground to the Indian democratic system. Considering the perceived shortcomings of the law, its effectiveness has been a topic of ongoing debate. The Anti-Defection Law is enacted to foster political stability and discourage defections. From one perspective it keeps stability in governance by discouraging defections, from another perspective, it encourages large unethical mergers of political parties, diluting the original intention of law. The presiding officer of the house serves as an adjudicator for the defection proceedings. The speaker of the house as the adjudicator safeguards the privileges and rights of the members of the house.
However, the perception arises with the presiding officer being influenced by ruling party loyalties, which in turn can affect the principles of neutrality and justice that are prerequisite for a fair adjudication process. The anti-defection law is structured to uphold the integrity and discipline of the political parties by adhering to party ethical standards. Prioritising party loyalty and ethical standard can lead to unintentional consequences. The oppression on diversity of perspectives and healthy debate hinders the democratic discourse of the members of the house. The Indian political setting requires equilibrium between nurturing vibrant democratic debate and ensuring stable governance. This paper seeks to offer an in-depth examination of Anti- Defection Law, focusing specifically on its deficiency in maintaining legislative stability and government transparency.
By presenting arguments, the author intends to demonstrate that the Anti-Defection Law emphasises punitive measures over the objectives of government stability and transparency. Through examination of Anti-Defection law impact, potential improvements and effectiveness, this paper aims to enhance the discussion on achieving a balance between party defections and democratic values in context of Indian politics. Keywords: political-defections, stability, legislature, anti-defection, transparency, democratic.
INTRODUCTION
The concept of democracy goes beyond the sheer act of holding elections. The ethos of democracy depends on how effectively the political systems function post elections. Stable governance in a democratic setup stands on political stability and integrity. The Anti-Defection Law was passed with the intention to uphold the consistency and reliance of political institutions, ensuring effective governance. The Anti-Defection Law which is also called as the 10th schedule of the Indian Constitution was incorporated by the 52nd amendment act in the Constitution in 1985. The term defection is derived from the Latin word ‘Defectio’ which means conscious abandonment of duty or alliance. 1 The defection refers to dissent and rebellion by any person or a party. In a political framework, it is a scenario when a member of a political party departs from his party and joins hands with another parties.
2 Across various countries, it has been referred by different denominations, such as party hopping, floor crossing and waka jumping. The key goal of the anti-defection law is to curb political defection by legislators. By preventing expedient defections, the law keeps a consistent government and ensures the smooth functioning of legislative bodies. The Tenth Schedule, rather than safeguarding steadfast governance, has at times posed a threat to it due to its potential misuse. The anti defection law is used as a pretext for various impediments such as stiffing internal debate and dissent of the legislators. In fear of disqualification legislators often self sensor and hesitate to express their dissenting views, this limits the scope of constructive internal dialogue in the political framework.
Role of the speaker of the house has often been scrutinised, with allegations of bias and partiality in defection proceedings. The opaqueness of transparency and accountability in the defection proceedings places them on the precarious edge of democratic principles. The persistence of political defections in India, despite the existence of anti-defection law, call into question about the success of these laws in holding political stability and preventing opportunistic behaviour by elected officials. Flaws like these can undermine the credibility of legislative process and diminish the public trust on overall confidence in governance. The defections are often labelled as a ‘ political evil’. 3 This is mainly because both political
1 Merriam-Webster Dictionary.
2 Lok Sabha Secretariat Docs.
3 The Constitution (Fifty-second Amendment) Act, 1985 – Statement of Objects and Reasons.
parties and government can experience the destabilisation due to defections. The Anti- Defection Law has exacerbated problems rather than providing solutions by allowing bulk defections, mainly by incorporating the exemption of merger in the legislation. The adverse effects of merger exception are evident from numerous instances where governments have crumbled due to extensive floor crossing by legislative members. While the Anti-Defection Law is critical for legislative stability, its exceptions point to the need for reforms to ensure, it aids rather than obstructs democratic governance. For democracy to thrive, the interplay between Anti-Defection Law, legislative stability and governance stability is crucial. Evolution of anti-defection law in India.
The anti-defection law can be discerned during a British rule when Shyam Lal Nehru and Shri Hafeez Ibrahim relinquished their alliance to the British as well with the Congress. Between the first and fourth general elections, there were approximately 542 reported instances of elected representatives, defecting their political alliance. 4 Thereafter, since 1967, the Indian national Congress performed terribly in national and state levels particularly after the death of Jawhar Lal Nehru in 1964, this resulted in enormous defections within the Indian polity. The Anti-Defection Law in India gained considerable attention when Haryana politician, Gay Lal switched between three separate political parties on the same day. It is during this time, the phrase “Aaya Ram Gaya Ram” came to forefront.
Handgrave and Kochanek observed that, amidst 1967-1983, The Congress party was a major beneficiary because 1900 members defected to it. 5 In 1967 a committee was set up under the leadership of Y. B. Chavan to tackle the issues of political party defections prevailing in India. The committee put forward its report in 1968, this was the first instance to introduce Anti-Defection Bill in parliament. However, the bill did not progress because of the interruption by new elections, which made the proposals obsolete. On
28 August 1978, the second attempt was made through Constitution (Fourty-Eighth
Amendment) Bill to introduce Anti-Defection Law. Due to refutation by several members belonging to both ruling and opposition parties the bill did not advance. It was during the regime of Rajiv Gandhi, The Constitution (Fifty-Second Amendment) Bill, 1985 was proposed 4 Sudarshan Agarwal, “Anti-defection law in India,” LXVII No. 1 The Parliamentarian, 22 (January 1986). 5 Csaba Nikolenyi, “The Adoption Of Anti-Defection Laws in Parliamentary Democracies” 25 No. 1 Election law journal, 101 (2016). in the Lok Sabha on 24 January 1985. Following the extended debates, both in Lok Sabha and Rajya Sabha, the bill received approval unanimously on 30th and 31st January 1985. The bill later received the ascent of president on 15 February 1985, and the act came into effect on 18 March 1985.
6 This culminated in the formation of Anti-Defection Law in India, which intended to substantially reduce the party switching in political system. The law aimed at enhancing public trust by restricting the members of the house deflecting from the parties and to promote a predictable and stable political environment. Constitutional Amendments to Anti-Defection Law. The 10th schedule was instituted by 52nd amendment act in 1985. This amendment laid for disqualifying elected members for joining another political party and punished the party members for voting against the party whip. This amendment was a response to widespread collapse of several state governments caused by party-hopping MLAs in 1967, general elections.
The statement of objects and reasons included with The Constitution (Fifty-Second Amendment) Act, 1985 Bill stated “The evil of political defection has been a matter of national concern. if it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. ” Nonetheless, the 52nd amendment act included clauses that allowed splits within the political system without necessarily being considered as unconstitutional, on a condition that sizeable part of its members, specifically one third are involved in the split. 7 The 91st Constitutional Amendment Act of 2003, was promulgated during Atal Bihari Vajpayee government. The impact of earlier amendment8 was quite opposite, it inadvertently became a blessing to small defections in political system.
Subsequently, the 91st amendment was inserted to the constitution to rectify the drawbacks of the 52nd amendment act. The Supreme Court in Rameshwar Prasad v Union of India9 stated that 91st amendment act makes defection more impermissible as it only allows mergers of the parties in the manner given in the 10th schedule and prohibits the party splits which often exploited to enable defections. The law stipulates that 6 P M Kamath, Politics of defection in India in the 1980s. University of California press, Vol. 25, No. 10.
7 National portal of India, The Constitution (Fifty-Second Amendment) Act, 1985
8 The 52nd amendment act, 1985.
9 Rameshwar Prasad versus Union of India and anr, (2006) 2 S.
at least two third of members of legislative party must be in support of the merger for it be valid. 10This amendment eases genuine mergers of parties, designed to enable political realignment, strategic partnerships, and ideological changes. It introduced a significant distinction between defection and legitimate party mergers. Committee Perspectives of Anti-Defection Law Perspectives from various committees on Anti-Defection Law have emphasised its strengths and have highlighted the areas for improvement. Dinesh Goswami committee on electoral reforms (1990) recommended that disqualification should be restricted to situations where a member voluntarily resigned from their political party or a member absence from voting or votes against party whip during motion of confidence or no confidence.
11 The Law Commission (170th Report, 1999), suggested for classification of pre-election electoral fronts as political parties for implementation of the Anti-Defection Law. Additionally, the commission recommended that there must be restriction by political parties on issuance of whips during instances where the stability of the government is at risk. 12 The election commission recommended that, the President or the governor should make decisions under the 10th schedule on the aid and advice of the election commission. The Constitution review commission 2008, proposed for debarring the defectors from holding public office or any remunerative political post for the duration of remaining term. This commission also recommended treating the vote caste by defectors to bring down the government as invalid.
The Role of The Speaker Under Anti-Defection Law The most crucial and influential position within the parliament is occupied by the speaker of the house. The speaker reinforces the core tenets of the democratic governance. This role of the speaker is essential for the seamless conduct of legislative proceedings and for ensuring
10 The Constitution of India, 1950, tenth schedule, para 4 (2).
11 Report of the committee on electoral reforms, May 1990.
12 Law Commission of India, Reform of Electoral Laws (Report No. 170) [1999]
that the democratic process is administered effectively. The Speaker acts as the representative of the House in dealings with the President, the Prime Minister, other branches of government, and international entities. In India prior to assuming the role, the speaker is usually a prominent member of a political party despite holding a position that is expected to be impartial and above political partisanship. The speaker remains a member of a political party and may return to active politics after the term ends. This is quite opposite in United Kingdom, where the speaker renounces all party affiliations upon taking office. In fact, in India the speaker is allowed to hold ministerial position both prior and post nomination as speaker.
As outlined in the Tenth schedule of the Indian Constitution, the presiding officer of the concerned legislative authority (Speaker in case of Lok Sabha or State assembly and, Chairman in Rajya Sabha or Legislative Council) is vested with the enormous responsibilities and authorities. With respect to deciding defection cases, the speaker of the house can be referred by various titles such as adjudicator, arbitrator, or mediator. The position entails reviewing evidence, hearing to arguments from all relevant parties and making decisions considering the specifics of the case. The perception of speaker overstepping their authority, especially in context of defection proceedings, could subvert their ability to make impartial and unbiased judgments in the defection cases.
The Kihoto Hollohan vs Zachillhu case was the first instance, which the speaker's authority in handling defection proceedings was questioned. 13 The main issue in the instant case was whether the speaker must be granted with the broad powers under tenth schedule of Indian Constitution. An affirmative answer was given by the majority of the judges, including M N Venkatachaliah and K Jayachandra. They opined that, in the framework of parliamentary democracy, the Speaker or Chairman plays a vital role and acts as the protector of the House’s rights and privileges. They further noted that the tenth schedule’s provisions were constructive and aimed at bolstering the foundations of Indian Parliamentary democracy by curbing dishonest and unethical political defections. The dissenting opinion was given by Justices Lalit Mohan Sharma and J S Verma.
They articulated that the Speaker's tenure reliant on ongoing support from the majority in the House, they cannot fulfil the role of an independent adjudicator as required by the Tenth Schedule. They further opined that constitution provides for an independent adjudicatory authority to address the disputes and the Speaker's role as the sole
13 Kihoto Hollohan versus Zachillhu And others [1992] SCR (1) 686.
arbitrator challenges the basic structure of the constitution. 14 From this ruling, it can be inferred that India, given its extensive democratic framework, should reconsider the extent of discretionary authority assigned to the Speaker. 15 Democratic principles of the India are built on the foundation of crucial element of judicial review. Supreme Court is vested with immense power under article 32 of the Indian constitution, not just with respect to writs, but also confers the authority to review the arbitrary legislative and executive actions. The judicial review can be delineated as the power of the judiciary to scrutinise the actions of the legislative and executive that are in conflict with the constitution and declare such actions as invalid.
The para 7 in the tenth schedule of Indian constitution, limited the power of the Supreme Court to review the decisions given by the deciding officer in the defection proceedings. This para notably hampered the Supreme Court jurisdiction in defection disputes. Nonetheless, The Supreme Court invalidated the para 7 as unconstitutional. 16In the case of Ravi S Naik Vs Union of India,17 The Supreme Court upheld the authority of judiciary to review the speaker's judgements pertaining to Anti-Defection matters. The court underlined that speaker's decision must adhere to legitimate interpretation of law and any decisions taken capriciously are open to the judicial scrutiny. Furthermore, when exercising the disqualification powers, the speaker operates as a tribunal, and their orders are subject to judicial review.
The speaker hail from the ruling party, tendency of the speaker to exhibit bias in favour of the ruling party in defection cases cannot be negated. 18 The speaker is obligated to resolve the defection proceedings impartially, fairly, and swiftly. The Supreme Court, in Shivraj V. Patlil vs Smt. Santhosh Bharti 2010, highlighted the critical need of the speaker to make timely decisions on disqualification issues under anti-defection law, noting that undue delay could justify judicial intervention. The speaker must manage defection proceedings with total objectivity, guaranteeing that each party involved are given a fair chance to be heard. The defection decisions should be based on
14 Kesavananda Bharathi versus state of Kerala. 1973, 4 SCC. 225.
15 Charit Reddy & Shagun Bhargava, For Laws May Come and Go But. Defections Go on Forever: A Critical Analysis of The Role of The Speaker in The Anti-Defection Laws, NLUI LAW REVIEW (1997).
16 Kihoto Hollohan versus Zachillhu And others [1992] SCR (1) 686.
17 Ravi S Naik Vs Union of India 1994 AIR 1558
18 C Reddy and S Bhargava, For Laws May Come andLaws May Go, but Defections Go on Forever: A Critical Analysis of the Role of the Speaker in IndianAnti-Defection Laws, 10 NLIU L Rev 328 (2020). the merits of the case, adhering to the principles of natural justice, impartiality and unprejudiced. Owing to growing apprehensions about the speaker's potential partiality and perceived unfairness in adjudicating the defection proceedings, there is a pressing necessity to constitute an impartial body to administer and resolve the defection proceedings. This neutral entity would ensure that defection cases are adjudicated using legal principles and objective criteria, thereby fostering greater fairness, integrity, and transparency of the process. The Anti-Defection Law and Its Impact on Freedom of Speech and Expression.
Originally the anti-defection law aimed to tackle issue of frequent party shifting by the legislators, thereby encouraging for a stable governance framework. Contrary to its primary goal the law has also impacted the fundamental rights of the legislators in the Parliament. The anti-defection law has far-reaching ramification beyond its primary goals. The Anti- Defection Law, shackles legislators from voicing out their opinions, as it mandates adherence to party lines and hold them accountable for deviating from party directives. The accountability in a Parliamentary democracy is maintained only when elected representatives like MPs and MLAs are responsible for monitoring the government actions, and they, in turn, are accountable to the electorate.
The Anti-Defection Law weakens the integrity of this accountability process To ensure effective functioning and operations of the parliamentarians, Article 105 of the Indian constitution defines the range of privileges conferred to the parliamentarians. Article 105 of the constitution outlines the following:
1) Subject to the provisions of this Constitution and to the rules and standing orders regulating
the procedure of Parliament, there shall be freedom of speech in Parliament.
2) No member of Parliament shall be liable to any proceedings in any court in respect of any
thing said or any vote given by him in Parliament or any committee thereof.19 This provision bestows upon members of the Parliament, the freedom to speak and express their views within parliamentary chambers. Article 105 is intended to function in tandem with article 194 of the Indian constitution. Article 194 of the Indian Constitution, grants powers and
19 The Constitution of India, 1950
privileges to the members of state legislatures. It ensures the freedom of speech of the members of the legislature of every state and provides immunity from legal proceedings to enable them to carry out their rules effectively. 20 In the Prakash Singh Badal vs Union of India, the ruling highlighted concerns regarding the interpretation and implication of para 2 (1)(b) of Anti- Defection Law on the role and independence of elected members. Further the court highlighted the tension between enforcing party discipline through Anti-Defection Law and protecting the constitutional rights and independence of elected representatives as outlined in article 105(1) and 194(1) of the Indian Constitution.
21 Article 19 of the Indian Constitution establishes freedom of speech and expression as a fundamental right of every citizen in India, though it allows for certain reasonable restrictions imposed by the state. In contrast, article 105 of Indian constitution, grants members of parliament unrestricted right to freedom of speech and expression. This differentiation illustrates the exceptional protection given to parliamentary dialogue compared to general public speech. The legislators can offer a candid opinion only when they are guaranteed freedom of speech and are free from threats of removal from political position. The notion of the whip was passed down from British colonial rule, the term is derived from the practice known as “Whipping in,” which involved directing hounds and ensuring their adherence to the hunt, thereby necessitating discipline and management.
A whip is a formal written directive issued by a political party, mandating members to be present for a crucial vote and vote according to party directives. 22 Non- compliance with the party's whip on voting matters can lead to accusation of defection. The soul exception arises only if more than a third of legislators oppose a directive, thereby splitting the party. Rule 2 of the 10th schedule enforces obedience to party policies and whips, thereby curbing legislators, freedom of speech and expression as guaranteed by article 19 of the constitution. Consequently, this limits members capacity to oppose the parties, ineffective policies, wrongful acts, and inadequate leadership. This undermines the core values of democratic system. The outcome could have been different had the true motivations behind decent been acknowledged.
The power to issue a whip is subject to judicial oversight and the disciplinary actions by the party against a member 20 The Constitution of India, 1950. Article 194- Powers, privileges, etc. , Of the houses of legislature and of the members and Committees thereof.
21 Parkash Singh Badal v. Union of India, I.L.R. 1 P&H 251, at 313-14 (1988).
22Subash C. Kashyap, Parliamentary Procedure: The Law, Privileges, Practice and Precedents (2000) who defies with a whip must be in line with principles of natural justice and must not be arbitrary or discriminatory. 23 Implementing precise guidelines and criteria for the issuance and enforcement of party whips, alongside rigorous judicial review are essential steps to address concerns over undue pressure and violations of fundamental rights of the members of the Parliament. These reforms ensure that party discipline does not overshadow individual freedoms, thereby promoting transparent and democratic parliamentary environment. Addressing The Issues of Splits and Merger The anti-defection law was crafted to prevent defections in the political landscape.
The legislation outlines provisions to counter and penalise ‘floor-crossing’, which refers to legislators shifting their alliance from one party to another to ensure strict party discipline and protect the credibility of elected bodies. The anti-defection law endeavours to confront the corrupting impact of money and power on politicians, and by bolstering accountability measures seeks to ensure that political decisions are driven by public welfare, rather than being swayed by individual gain or donor's interest. The context of para 3 of the 10th schedule of the anti-defection law facilitates one- third of elected members to switch to another party. The Constitution (Ninety-First Amendment) Act,
2003 removed para 3 from the Constitution. The main intention behind the omission of para 3
of the 10th schedule is to make defection more difficult. While para three was removed, para four which allows for merger involving two-third or more defections was retained. The Law Commission of India, in its 170th report, had recommended the deletion of both para 3 and 4, but the parliament opted to delete just para 3.24 The exemption in para 4 of the 10th schedule is currently being widely exploited. The provision permits the legislators to evade disqualification if they assert that their original party has merged with another party. This indicates that there are two requirements for availing this provision: First, the original political party must undergo a merger with another party. Second, at least two-thirds of the legislators must consent to the merger. Merely obtaining the agreement of two-third of legislative party to merge with another party does not equate to the original
23 Jagjit Singh v. State of Haryana (2006) 11 SCC 1.
24 Law Commission of India, Reform of Electoral Laws (Report No. 170) [1999]
party merging with that new party. If the party does not endorse the merger, then the agreement of two-thirds legislative members will not receive the protection of para 4 and will be regarded as defection under para 2. The merger rule which intends to curb defections, is less of deterrent in smaller legislative assemblies like Goa, Tripura, Uttarakhand and Sikkim. In smaller assemblies, the threshold for merger is lower because of the fewer seats, so achieving the necessary two-thirds majority requires fewer defections. As a result, mergers are more easily accomplished in these smaller assemblies, leading to greater opportunity of forming government through defections. In September 2022, a fraction of eight Congress MLAs in Goa Legislative Assembly, aligned with the ruling Bharatiya Janta Party (BJP). This case highlights how smaller mergers can quickly reach a two-third majority.
25 The process of merging can result in considerable internal discord and competition over leadership positions if it is perceived as a strategic move, rather than the genuine consolidation. Differing priorities and interests among factions can lead to disputes regarding policy strategies and distribution of resources. The presence of internal strife and inefficiencies can skew democratic process. When leadership battles take centre stage, the focus may move away from prioritising public needs and delivering effective governance. This shift can compromise democratic principles like accountability, representation and weakening the overall performance of the democratic system and its responsiveness to voter concerns. Such scenario might lead to diminished public trust in the transparency and integrity of the government and its representatives.
Proponents of the merger provision advocates that mergers help avoid frequent government changes due to individual defections, thus fostering a more stable political climate. Nevertheless, the merger provision can be exploited strategically, where parties orchestrate defections of entire group rather than individuals. Such exploitation contradicts the laws aim to maintain stability. Conclusion and Suggestions The anti defection law was introduced as a critical reform to counteract the negative
25 Girish Chodankar V Speaker, Goa Legislative Assembly, 2020 2SC Online Bom 377
ramifications of defections, and it has profoundly impacted India’s political landscape for over thirty years. In Indian democracy, the anti-defection law serves as a double-edged sword. It is crucial for preventing, corruption and preventing horse training. At the same time, it can also restrict legislative freedom and diminish efficiency through its rigid enforcement of discipline and potential suppression of dissent, thereby challenging the core, democratic values in the political framework. The critical question is whether anti defection law in India is fulfilling its intended objectives or if we are simply pursuing an ineffective strategy. Rather than primarily focusing on stabilisation of governance, the Anti-Defection Law address and penalise defections.
The core problem with anti-defection law lies not just in the severity of penalties for defection, but rather debate, erodes the democratic principles of free and unfettered debate. 26 Given India’s vast diversity, it is crucial that every member of the legislature has the opportunity to represent their constituencies effectively, thereby ensuring that all regions and demographic segment are heard in the political process. As the fear of defection proceedings stifles the members of the legislature from voicing out there dissenting opinions undermines the essence of democratic values and principles. The imperatives of anti-defection legislation in aiming towards the stability of the governance must be the priority rather than imposing penalties on legislators for their non-compliance with party discipline or defections.
The speaker is responsible for adjudicating defection cases under anti-defection law and their decisions are open to judicial review. However, issues emerge when speaker delays or neglects to address defection proceedings, as such inaction is not subject to judicial oversight. Establishing a timeline for speaker to adjudicate defection proceedings, foster greater accountability, transparency and stability within the governance. By defining a clear time frame for decision making, the risk of procrastination is reduced, leading to more efficient legislative process. Such protocols contribute to a stronger democratic framework by ensuring that procedures are both clear and fair and conducive to effective governance.
The promotion of internal democratic practises under Anti-Defection Law, not only fortifies the democratic structure with the political parties but also leads to more responsive and effective governance. The 170th law commission of India report on electoral law reforms, devoted an entire chapter to the importance of embedding internal democracy within political
26 Menon, Anti-Defection Law Has Failed and Should Be Scrapped, February 24, 2021, the leaflet.
parties. The report asserts that if democracy and accountability are cornerstones of our constitutional system, these values must equally apply to political parties, which are vital to parliamentary democracy. The report underscores that political parties, which are responsible for government formation, national governance and parliament staffing must practise internal democracy, accountability, and transparency. A party that does not adhere to democratic principles internally cannot be trusted to uphold them in governance. It cannot operate with internal dictatorship while maintaining a democratic facade externally. 27 For mergers to be effective, it is important that they are conducted transparently, with thorough disclosures about the governance structures of the merging organisations.
The Anti-Defection Law should focus on boosting transparency and governance stability by incorporating these elements, the law can better serve a democratic framework where political processes are open, accountable, and supportive of sustain governance. This comprehensive approach helps the law not only penalise wrongful actions but also strengthen and stabilise the political environment. The Anti-Defection Law in a sense undermines democratic principles by constraining parliamentary debates, being subject to misuse by political parties and causing delay in the disqualification process. The law is designed to strengthen party leadership's ability to manage and control dissenting legislators, rather than stabilizing governments.
Despite its necessity for function of Parliamentary democracy, they must be carefully crafted and implemented in a way that balances the need for discipline with democratic principles. 27 Sharon S, Defection politics in India: A threat to the stability of democracy, SSRN Electronic Journal,2020.