Anti-Defection Laws in India: Its flaws and its falls

Bar & Bench August 1 2019
Anti-Defection

S Sanal Kumar

Baffling is the political turmoil in Karnataka. The eventful roller coaster ride of political events is over with the fall of the Congress-JD(S) government and the crowning of Yediyurappa as Chief Minister. Still, the issue of disqualification of the defected MLAs looms large, pending the decision of the Speaker. For the legal community and politicians alike, the Karnataka issue has thrown open concerns over anti-defection laws.

With the framing of Constitution, we adopted the Westminster System of representative democracy followed in Britain in the formation of our Legislatures. The leader who enjoys the majority support of the Legislature is chosen as the head of the government. This is in essence the concept of representative democracy contemplated by the framers of the Constitution.

The loyalty of the legislators to the constituency is given primacy. It is curious to note that when the Constitution was originally adopted, the party system was not recognised by the Constituent Assembly. It was only in 1985 that the anti-defection law was engrafted into the Constitution with the insertion of the Tenth Schedule. 

In a way, the Anti-Defection Law was subject to scathing attack by Constitution experts and law men, as it was an invasion on the free speech guaranteed to legislators. The legislators are supposed to take part in the law making process with empirical data collected from their constituencies about the various issues of the electorate which needs legislative intervention. But the legislation so mooted must also be in alignment with the larger national interest. 

The Anti-Defection Law of 1985 

During late 1970s, our country witnessed nefarious floor crossing by legislators in total disregard of the democratic wishes of the electorate who returned them. This engaged the attention of all the political parties in the Parliament, resulting in adopting a unanimous resolution for the constitution of a Committee to study and report on the issue of defection. 

Based on the recommendations of the Committee, the 32nd Constitution Amendment Bill was introduced for disqualifying defected legislators from holding ministerial births. This Amendment Bill lapsed with the dissolution of Lok Sabha. This attempt was followed by the 48th Constitution Amendment Bill with the same tenor and terms of the lapsed Bill. At last in 1985, when Rajiv Gandhi became Prime Minister with a brutal majority, the Tenth Schedule was knitted into the Constitution along with the anti-defection law.

Anti-Defection Law in other Countries

A survey of Parliamentary practices and conventions prevailing in other democracies in the world would point out that anti-defection laws are in its infancy stage. Among the Commonwealth countries, anti-defection law is prevalent in 23 nations. The anti-defection law in Bangladesh, Kenya, South Africa and Singapore disqualifies a legislator on his ceasing to be member of the party or when he is expelled. 

The perceptible presence of anti-defection laws in countries where democracy is in a growing stage indicate that the legislators in those countries are less informed on the principles of democracy, but are more rapacious on gaining more political and monetary ascendancy. 

But the political ambience in developed democracies poses a picture of legislators with democratic values and freedom of speech equally combined in themselves. The freedom to dissent with the policy of the political party to which a legislator owes allegiance is ensured by the “collective conscience” of the electorate, to which alone the legislators are primarily responsible. 

In the UK Parliament, a member is free to cross over to the other side, without being daunted by any disqualification law. In the US, Canada, and Australia, there is no restraint on legislators switching sides. 

Anti-Defection Law and the Judiciary 

The Tenth Schedule to the Constitution was challenged before the Supreme Court in the Kihoto Hollohan case. The main challenge to the Tenth Schedule was mounted on the polemic of violation of the free speech right of legislators guaranteed under Articles 105 and 194 of the Constitution. 

The Constitution Bench, by a majority judgment, held that unprincipled and unscrupulous political defections are to be contained and the legislators’ freedom of speech can be reasonably curtailed for the larger interest of the nation. The legislators, who fought and won elections on the basis of the programmes and policies of the political party, are not supposed to do floor crossing midway through the term of the government. The political instability contributed by large scale political defection was in fact a threat to democracy which many a time reduced the concept of democracy to a mockery. 

What is more relevant in the present day context is the minority judgment rendered by Justices LM Sharma and JS Verma, who in their separate verdicts, declared that the anti-defection law is unconstitutional. The minority judgment raises concerns over the power of the Speaker to decide the question of disqualification; the learned judges found likelihood of bias in the decision making process. 

Justices LM Sharma and JS Verma delivered dissenting verdicts in Kihoto Hollohan

The Speaker, who for his continuance in office depends largely on the ruling combination, is not expected in the ordinary course to maintain impartiality in the decision making process. The invocation of the anti-defection law by the Speakers of various Legislatures during the last two decades vouchsafes the concerns expressed in the minority judgment on the question of neutrality of Speaker. 

Anti-Defection Law and Disqualification  

After the disqualification of legislators by the Karnataka Speaker following the fall of the Congress-JD(S) government, the question arises as to whether the disqualified MLAs can contest the ensuing bypolls. The statement made by the Speaker that the disqualified legislators could not contest in the elections for the rest of the term of the present Assembly raises serious doubts as to its correctness. 

The constitutional provisions alluding to the consequences of disqualification are Articles 102 and 191 of the Constitution. These Articles only say that the person shall be disqualified for being a member of the Legislature if he is so disqualified under the Tenth Schedule. His continuance in the Assembly for having committed the political delinquency of floor crossing comes to an end with the disqualification. The provisions of the Representation of People Act do not contain any embargo on a disqualified member under the Tenth Schedule in contesting the ensuing bypoll. 

Also read:

Karnataka Political Crisis: Two ex-Congress MLAs approach Supreme Court challenging disqualification

Articles 75(1)(B), 164(1)(B), and 361(1)(B) contain the other consequences of disqualification. These articles, identically worded, indicate that the disqualified member continues to be disqualified to be appointed as a Minister for a duration of the period commencing from the date of his disqualification till the date on which his term in the office as such member would expire or where he contests an election to either house of Parliament/Legislature before the expiry of such period, till the date on which he is declared elected, whichever is earlier. Art. 361(B) is in the same tone. But the disqualification referred therein is relating to assuming any office of profit. 

These Constitutional provisions make it clear that a disqualified legislator can seek a fresh mandate on his vacation of office owing to defection. The only disqualification discernible from a cumulative reading of these articles is one regarding holding a ministerial post before getting elected. The disqualification can continue till the term of the Assembly is over or till the legislator is declared elected, whichever is earlier. An analysis of these Constitutional provisions makes the position clear that the disqualified MLA can seek re-election in the bypoll that follows. 

Does the Anti-Defection Law need amendment?

The anti-defection law is subject to criticism mainly on the premise that it undermines the very concept of representative democracy. But considering the immature nature of our democracy and shameless political defections indiscriminately taking place in India, the anti-defection law is an inevitability, though not an elixir, for ensuring political stability. 

But at the same time, the freedom of a legislator to express his dissent against the policy decision of his political party is also one necessary for the survival of a robust democracy. It is undemocratic to tie a legislator to the whims and fancies of a political leadership which does not honour intra-party democracy. Democratic aspirations are reflected only when leaders are elected by their rank and file. 

What is lacking in the present legal system is provisions for ensuring intra-party democracy in a political party. Necessary amendments are required in the Representation of People Act to make political parties more democratic in the selection of their leadership. The Constitution needs to be amended to insert a provision that only the violation of whip issued by a political party following intra-party democracy would entail disqualification of a legislator. 

2019 Lok Sabha Elections

"What is lacking in the present legal system is provisions for ensuring intra-party democracy in a political party."

The amendment of the Representation of Peoples Act relating to recognition of a political party is also a big need. A provision in the Act that parties which follow intra-party democracy in the selection of leadership would only be recognised may perhaps propel democratisation in the party hierarchy.

It is undesirable and against all modern civilised notions of justice that the Speaker be the adjudicating authority on the issue of disqualification. As pointed out by the report of the 170th Law Commission, the President or the Governor, as the case may be, should be made the authority for deciding the question of disqualification based on an enquiry conducted by the Election Commissioner. 

Horse Trading and Ethics

The luring of legislators with money forms the playing wicket for many of the defection cases. The acceptance of money by a legislator for doing any act on the floor of the House is deemed to be unethical. The Cash for Query incident which happened in 2005 reminds one the influence of money and the extent to which the legislators go to satiate their avarice. Members of Parliament accepted money from stakeholders and raised questions in Parliament apparently to the benefit of money givers. 

In a sting operation, it was revealed that Parliament, upon the report of the Ethics Committee, expelled the delinquent MPs. The active involvement of the Ethics Committee, as done in the Cash for Query scam, can be profitably made use of in incidents of horse trading of legislators. If every incident of defection tainted with monetary factors is enquired into and dealt with by Ethics Committee, the shameful floor crossing by legislators can be contained to a great extent. 

The fundamental premise of democracy is the protection of the wishes of the people. But at the same time, political stability is essential for the progress of the country and its march forward. The loyalty of the legislators is not first to the party that fielded them, but to the electorate of the constituency that elected them.

For a direction of a party to the legislator to be democratic, the party must first be democratic. Only when the leadership of the political party is democratic can their directions can have democratic flavour. It is only when intra-party democracy is statutorily ensured that the anti-defection law can gain meaning and political legitimacy. 

The author is an advocate practicing at the Kerala High Court.