ANTI DEFECTION LAW

Etymologically the word ‘Defection’ has been derived from the Latin word ‘defectio’ which means an act of abandoning a person or a cause which that person was to carry, out of duty or allegiance and that he had attached himself to such cause. In simple terms it means abandoning a cause, movement or programme etc. by a party or a person who was a part of it who has ultimately launched a rebellion or a revolt. Traditionally in the British House of Commons this was known as the ‘floor crossing’ when a member of the government in power used to present his allegiance and moved to the opposite side, or vice versa.

As far as India is concerned the history of the phenomenon of defection dates back to the era of British Rule in India. To cite the first instance of defection it was carried by Shri Shyam Lal Nehru, who changed his allegiance from the Congress Party and moved to the side of the British. According to the Chavan Committee Report of 1969, during the late 1960’s there had occurred numerous incidents of defection following the fourth general elections; in various states. To name it, approximately out of 542 incidents, 438 defections had occurred during the period of 2 decades ranging between first to fourth elections.

To deal with these numerous incidents of defections taking place the Commonwealth states came up with the concept of ‘Anti-Defection Law’. The purpose of creating such a law was to provide a security to both the elected party and to the opposition from the instability created by the defections taking place. Further it was to provide penalty to those who used to change their allegiance from one party to another. Because of the multiple defections there have been incidences of governments falling as a result. Thus the ultimate goal was to provide stability to the parliamentary form of governments and create accountability on part of the party members. On the contrary there has been a school of thought opposing this law citing the reason that this law shall curb the freedom of speech of expression that the legislators possess.

THE EVOLUTION OF THE ANTI-DEFECTION LAW IN INDIA-

The congress government witnessed the most number of defections for a period of more than two decades and owing to the increased public opinion towards the demand of an anti-defection law the Rajiv Gandhi Government in 1984 after securing clear majority presented the anti-defection bill in the Parliament which was unanimously approved by both the housed in Jan 1985 and got the President’s assent on February, 1985.  Therefore on 18^th March, 1985 the Act came into being. The law basically was added inserting the 10^th Schedule to the Constitution of India by way of 52^nd Constitutional Amendment and therefore is also known as the TENTH SCHEDULE. The ‘Statement of Objects and Reasons’, considered the incidents of defection as a matter of national concern that needs to be combated.

Under the Tenth Schedule the process of disqualification of a member is provided on the ground of defection. On the basis of a petition by any other member of the house, the Presiding officer carries on the process of disqualifying the defecting member of the house.

GROUNDS OF DEFECTION

The grounds of defection include:

1. When a legislator voluntarily gives up his membership of the party. It is to be noted here that voluntarily renouncing one’s membership is not similar to resigning from the party. A reasonable inference need to be drawn either by the Speaker or the chairman of the concerned house, from the conduct of the defecting legislator, even without him resigning.
2. If such a legislator votes against the party directions in the house which the party does not condone, the in that case it forms a valid ground for disqualification.

These two conditions apply on both the state assemblies as well as that of the Parliament.

EXCEPTIONS

However there exists an exception to the disqualification of a defecting member from the party. A merger is allowed between two political parties provided that two-thirds of the members of the party agree to such a merger, in that case the defecting member or members shall not be disqualified. Various expert committees have suggested that instead of the Presiding Officer, the authority who shall decide to disqualify the defecting members on the advice of the election commission should be the President (in case of MPs) and Governor (in case of MLAs).

Before the year 1992 the decision of the Presiding Officer was not subject to judicial review but in 1992 the Apex court in Kihoto Hollohon vs. Zachillu, overturned this condition and held that appeals against the Presiding officer’s decision shall be allowed in the High Court and the Supreme Court. The court made it clear that the Presiding Officer’s decision shall not be intervened by the judiciary, until the final decision has been made.

As to the time period to be taken by the presiding officer to decide on the matter of disqualification, has not been given in the law. However it has been suggested that the Presiding officer should decide the plea within three months from the date on which the disqualification plea was made, in order to avoid unnecessary delay.

AMENDMENT TO THE ACT

The Act was amended in the year 2003 under the 91^st Constitutional amendment Act, 2003. The amended Act omitted provisions from the Act that allowed defections arising from splits.  The amended Act also maintained that the total number of members of states and Union territories should not exceed 15 percent of the total number of members in the house. Secondly a disqualified member on the ground of defection should not be allowed to hold any ministerial post or any other political post until his term of office expires.

As regards to the suppression of freedom of speech and expression of the members the SC in Kihoto Hollohon’s case has asserted that the tenth schedule in no way curbs or suppresses the freedom of speech and expression of the parliamentarians and the legislators and does not violate Arts. 105 and 195 of the Constitution, rather it focuses on providing a stability of the government thus by avoiding unnecessary political defections. However it has been observed that the Anti-defection law to some extent does affect a legislator’s ability to participate in depth and vote for an issue without having much room to ponder upon as the party does not allow them to do so in full capacity.

CONCLUSION

To conclude it can be said that to some extent the law has been successful in limiting the political defections but to a larger extent there still exist some loopholes, like in terms of the time limit for deciding the disqualification plea etc.  Still apart from these loopholes the larger harm of frequent defections has been contained to some extent.