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Anti-defection law (India)

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The Constitution (Fifty-second Amendment) Act, 1985
Parliament of India
  • An Act further to amend the Constitution of India.
CitationThe Constitution (Fifty-second Amendment) Act, 1985
Territorial extentIndia
Passed byLok Sabha
Passed30 January 1985
Passed byRajya Sabha
Passed31 January 1985
Assented to15 February 1985
Commenced15 February 1985
Legislative history
First chamber: Lok Sabha
Bill titleThe Constitution (Fifty-Second Amendment) Bill, 1985
Introduced byRajiv Gandhi
Introduced24 January 1985
Amended by
The Constitution (Ninety-First Amendment) Act, 2003
Related legislation
Addition of Tenth Schedule in the Constitution of India
Summary
Disqualification on grounds of defection.
Status: In force

The anti-defection law in India, technically the Tenth Schedule to the Indian Constitution, was enacted to address the perceived problem of instability caused by democratically elected legislators in India's Parliamentary System of Government shifting allegiance from the parties they supported at the time of election, or disobeying their parties' decisions at critical times such as during voting on an important resolution. Such shifting of allegiance was considered to be a symptom of endemic political corruption, which in turn provided some legitimisation for corruption prevalent in other aspects of life in the country.

Defection by legislators occurs in many democracies. It can be argued that they can undermine the stability of the government, which is dependent on the support of the majority party's own elected legislators and/or a coalition of those elected to represent other parties. The argument follows that such instability can amount to a betrayal of the people's mandate as voiced at the most recent prior election.

Prior to the introduction of the anti-defection law, both the central Government of India and the governments of some of its states and territories had experienced instances of perceived instability resulting from legislators changing their political allegiance. By one estimate, almost 50 per cent of the 4,000 legislators elected to central and federal parliaments in the 1967 and 1971 general elections subsequently defected, leading to political turmoil in the country.[1]

A law was sought to limit such frequent defections in India. In 1985, the Tenth Schedule of the 52nd amendment to the Constitution of India was passed by the Parliament of India to achieve this. Following recommendations from many constitutional bodies, Parliament in 2003 passed the Ninety-first Amendment to the Constitution of India. This strengthened the act by adding provisions for disqualification of defectors and barring them from being appointed as ministers for a period of time.[2]

Background

Elections in a democratic country allow the people to assert their desire; political defections occurring between elections undermine that assertive act and thus the expressed will of the people. Defections were common in India even prior to the country's independence. Beginning around 1960, the rise of coalition politics increased the incidence of defections as elected representatives sought to occupy a berth in the cabinet of ministers.[3] An extreme example occurred in 1967 when the legislator Gaya Lal changed his allegiance three times in a single day, and gave rise to the infamous expression Aaya Ram Gaya Ram ("Ram has come, Ram has gone").[4]

Between 1957 and 1967, the Congress (I) party emerged as the sole beneficiary of defections. It lost 98 of its legislators but gained 419, whilst those who left other parties and who did not then join Congress (I) formed separate new parties with the aim of exerting power in the future through coalition government, rather than joining established governments. This situation gave Congress (I) a strong hold of power. In the 1967 elections, approximately 3,500 members were elected to legislative assemblies of various states and union territories; out of those elected representatives, around 550 subsequently defected from their parent parties, and some politicians crossed the floor more than once.[5]

To tackle the scourge of political defection, during the fourth Lok Sabha in 1967 a committee was formed under the chairmanship of Y. B. Chavan. This committee submitted a report in 1968 which led to a first attempt to submit an anti-defection bill in Parliament. Although the opposition was supportive of the bill, the Government, then led by Indira Gandhi, referred it for consideration by a Joint Select Committee; it did not emerge from committee before all other legislative proposals were voided by subsequent elections.[6]

1977–79 was one of the crucial periods in Indian politics when the first-ever national non-Congress Government, led by Morarji Desai, was driven out of power due to the defection of 76 parliamentarians. This caused political uncertainty until 1979, when Gandhi was elected by a clear majority. There was a definite trend in the political landscape of India during the 1970-80s. Whenever there was a Congress-led Government at the center, the regional governments fell due to the defection of non-Congress elected representatives. Then Chief Minister of Karnataka, Virendra Patil, called this trend a "goldrush". Though corruption was a global phenomenon, the Gandhi period saw the disruptive politics of defection become rampant in India.[6]

With rising public opinion for an anti-defection law, immediately after securing a clear majority in 1984, Rajiv Gandhi proposed the new anti-defection bill in the Parliament. After marathon debates, both the Lok Sabha and Rajya Sabha unanimously approved the bill on 30 and 31 January 1985, respectively.[7] The bill received the President's approval on 15 February 1985 and the act came into effect on 18 March 1985.[8] The law laid out the process for disqualifying an elected member for the remaining term, who defected either by resigning or by defying the party leadership and being absent on a crucial vote. However, the law allowed mergers and splits of political parties, allowing splits in the party by one-third of its members and merger (joining another party) by two-thirds of other party members. Experts believed defections should not be viewed in terms of numbers alone and should be seen in the context of how such political defections damage the people's mandate. But Ashoke Sen justified the act of allowing mass defections by terming it as freeing the legislators from "chains of obscurantism and orthodox politics"[6]. Recently, Sachin Pilot and his MLAs (from Congress' Rajasthan constituency) moved to the high court and challenged the anti-defection law; stating that the provision should not jeopardize the fundamental freedom of speech and expression of a member of the house.They have also demanded the clause 2(1)(a), to be declared ultra vires (outside the scope) of the basic structure of the Constitution, and the freedom of speech and expression under Article 19(1)(a).

Intent

The primary intentions of the law were:

  • To curb political corruption, which was seen as a necessary first step to addressing other forms of corruption in the country. According to the then Central Vigilance Conmissioner, U. C. Aggarwal, the political arena has to be corruption-free to motivate other, lower levels to free themselves from corruption.[9]
  • To strengthen democracy by bringing stability to politics, ensuring legislative programmes of the Government are not jeopardised by a defecting parliamentarian
  • To make members of parliaments more responsible and loyal to the parties with whom they were aligned at the time of their election. Many believe that the party allegiance plays a key role in their election success.[10]

The Chavan committee suggested that a member who changes party allegiance for monetary benefit or other forms of greed, such as a promise of executive office, should not only be removed from parliament but also barred from contesting elections for a specified time.[11]

The law

The anti-defection law enshrined through the introduction of the Tenth Schedule in the Constitution of India comprises 8 paragraphs. The following is a brief summary on the contents of the law:

  • Paragraph-1: Interpretation. This section handles the definitions of distinct terms applied in laying out the legislation.
  • Paragraph-2: Disqualification on grounds of defection. This section deals with the crux of the legislation, specifying factors on which a member could be disqualified from the Parliament or the State assembly. Provisions in para 2.1(a) provide disqualification of a member if he or she "voluntarily gives up the membership of such political party", whereas paragraph 2.1(b) provisions, addresses a situation when a member votes or abstains from any crucial voting contrary to the directive circulated by his/her respective political party. Paragraph 2.2 states that any member, after being elected as a representative of a certain political party, shall be disqualified if he/she joins any other political party after the election. Paragraph 2.3 states that a nominated member shall be disqualified if he/she joins any political party after six months from the date he/she takes his seat.
  • Paragraph-3: Omitted after amending the schedule by the Ninety-first Amendment act – 2003, which exempted disqualifications arising out of splits with one-third of the members defecting from a political party.[12][13]
  • Paragraph-4: Disqualification on ground of defection not to apply in case of merger. This paragraph excludes from disqualification in the case of mergers of political parties. Provided if the said merger is with two-thirds of the members of the legislative party who have consented to merge with another political party.
  • Paragraph-5: Exemption. This paragraph provides exemptions to the Speaker, Chairman and Deputy-Chairman of various legislative Houses.
  • Paragraph-6: Decision on questions as to disqualification on ground of defection. This provision mandates the Chairman or the Speaker of the respective legislative house to be the ultimate decision-making authority in case of any disqualification that arises.
  • Paragraph-7: Bar of jurisdiction of courts. This provision bars any court jurisdiction in case of disqualification of a member under this schedule. However, this schedule does not bar court intervention under articles 32, 226, and 137 of the Constitution of India.
  • Paragraph-8: Rules. This paragraph deals with framing the rules for disqualification. The schedule allows the Chairman and the Speaker to frame rules concerning their respective legislative houses to deal with the disqualification of members of their various houses of the legislature.[14][15]

Speaker's role

After enactment, some legislators and parties exploited loopholes in the law.[16] There was evidence that the law did not fulfill the purpose of bringing a halt to political defection, and in fact legitimised mass defection by exempting from its provisions acts that it termed splits. For example, in 1990, Chandrashekhar and 61 other parliamentarians did not receive penalties when they simultaneously changed allegiance.[17] The Speaker of the Lok Sabha did not allow the defecting members of the breakaway faction of Janata Dal to explain their point of view.[18] Another aspect of the law which was criticised was the role of the Speaker in deciding the cases arising out of political defections. Impartiality of the Speakers of various houses was questioned in regard to granting official recognition to different factions of political parties. Questions were raised about the nonpartisan role of the Speaker due to his/her political background with the party from which he/she was elected as the Speaker.[19][18] In 1991, Janata Dal (S) was accused of undermining the spirit of the anti-defection law by keeping defecting members in ministerial posts. Later, all the opposition members of the house submitted an affidavit to the President of India, appealing to him to dismiss the ministers. Finally, responding to pressure to save the fallen dignity of the Speaker and of the House, the Prime Minister discharged the defecting members from their ministerial posts.[18]

Some legal luminaries of the time suggested that a legitimate remedy be made accessible to legislators to seek protection from the Speaker's decision. They further proposed that the Speaker's decision pertaining to disqualification on grounds of defection should not be final, and recommended that a process of judicial review be made available to the members by empowering a judicial tribunal for dealing with such cases.[20]

Amendment

To make the existing law more effective in dealing with the frequent defections, an amendment was proposed to the Tenth Schedule in 2003. A committee headed by Pranab Mukherjee proposed the Constitution (Ninety-first Amendment) Bill, noting that the exception provided by allowing a split, granted in paragraph three of the Schedule, was being grossly exploited, causing multiple divisions in various political parties. Further, the committee observed, the lure of personal gain played a significant aspect in defections and resulted in political horse-trading.[13] The bill was passed in one day by the Lok Sabha on 16 December 2003, and similarly passed by the Rajya Sabha on 18 December. Presidential consent was obtained on 1 January 2004 and the Constitution (Ninety-First Amendment) Act – 2003 was notified in the Gazette of India on 2 January 2004.[21]

The amended act maintained that the a member disqualified due to defection should not hold any ministerial post or any other remunerative political post until the term of his office as a member expired. The 2003 amended act excluded the provisions from the Tenth Schedule for authorizing the defections arising out of splits.[22] The amended act also stipulated that the minimum number of ministers in states and union territories should not exceed fifteen percent of the total number of members in the respective house.[21]

Reforms suggested by various bodies—including the Law Commission, Election Commission, National Constitution Review Commission, Dinesh Goswami Committee on electoral reforms, and Halim Committee on anti-defection law—can be read under following heads.[23]

References

  1. ^ Venkatesh Kumar (May 2003). "Anti-defection Law: Welcome Reforms". Economic and Political Weekly. Vol.38 No.19 (19): 1837–1838. JSTOR 4413541. {{cite journal}}: |volume= has extra text (help)
  2. ^ Malhotra 2005, p. Foreword.
  3. ^ Malhotra 2005, p. 5.
  4. ^ Relhan, Vibhor (December 2017). "The Anti-Defection Law Explained". PRS Legislative Research. Retrieved 9 April 2020.{{cite web}}: CS1 maint: url-status (link)
  5. ^ Kashyap, Subhash (March 1970). "The Politics of Defection: The Changing Contours of the Political Power Structure in State Politics in India". Asian Survey. 10 (3): 196. JSTOR 2642574.
  6. ^ a b c Kamath, P. M. (1985). "Politics of Defection in India in the 1980s". Asian Survey. 25 (10). JSTOR 2644180.
  7. ^ Sachdeva, Pradeep (June 1989). "Combating Political Corruption : A Critique of Anti-Defection Legislation". The Indian Journal of Political Science. 50 (2): 160. JSTOR 41855903.
  8. ^ Kashyap, Subhash (December 1989). "The Journal of Parliamentary Information". Journal of Parliamentary Informatiin. xxxv (4) – via Lok Sabha, Digital Library.
  9. ^ Sachdeva, Pradeep (June 1989). "Combating Political Corruption : A Critique of Anti-Defection Legislation". The Indian Journal of Political Science. Vol.50, No.2 (2): 157. JSTOR 41855903. {{cite journal}}: |volume= has extra text (help)
  10. ^ Kashyap, Subhash (March 1970). "The Politics of Defection: The Changing Contours of the Political Power Structure in State Politics in India". Asian Survey. 10 (3): 201. JSTOR 2642574.
  11. ^ Roshni Sinha, Prachi Kaur (December 2019). The Anti-Defection Law: Intent and Impact (PDF). PRS Legislative Research. pp. 3–4.
  12. ^ "The Constitution (Ninety-First Amendment) Act, 2003" (PDF). Govt. of India. 2003. Retrieved 13 April 2020.{{cite web}}: CS1 maint: url-status (link)
  13. ^ a b Roy, Chakshu (July 2019). "Explained: The limits of anti-defection". PRS Legislative Research. Retrieved 13 April 2020.{{cite web}}: CS1 maint: url-status (link)
  14. ^ Narayan, Jenna. "'Defect-Shun': Understanding Schedule X to the Constitution of India". The India Law Journal. Retrieved 13 April 2020.{{cite web}}: CS1 maint: url-status (link)
  15. ^ "The Constitution (Fifty-Second Amendment) Act, 1985". Govt. of India. 1985. Retrieved 13 April 2020.{{cite web}}: CS1 maint: url-status (link)
  16. ^ Gehlot 1991, p. 338.
  17. ^ Gehlot 1991, pp. 327, 333.
  18. ^ a b c Gehlot 1991, p. 336.
  19. ^ Gehlot 1991, p. 331.
  20. ^ Gehlot 1991, p. 377.
  21. ^ a b Malhotra 2005, p. 10.
  22. ^ Malhotra 2005, p. Preface.
  23. ^ Kothandaraman, R. (Ramanujam), 1937– (2006). Ideas for an alternative anti-defection law. Parliamentary Research Cell, Govt. of Nagaland. LCCN 2008307685. OCLC 222668909.{{cite book}}: CS1 maint: multiple names: authors list (link) CS1 maint: numeric names: authors list (link)

See also

Bibliography

Further reading

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