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A CM takes oath at 4 am in the morning. MLAs are taken to an unknown destination or a resort with their mobiles and all communications virtually shut! Likewsie, if unconstitutional principles and practices no longer excite the citizens, but some political norms do, then our democracy is in trouble.

Turbulence in governments — involving the “switching of sides” by elected representatives — has been increasingly frequent in recent months.  The ongoing political crisis in Rajasthan is neither new nor uncommon.  The past year has seen the toppling of two state governments in Karnataka and Madhya Pradesh amid allegations of political defections and horse-trading. There has also been turmoil in Goa and Manipur.

Over the debate: The Anti-Defection Law

The Anti-Defection Law under the Tenth Schedule of the Constitution punishes MPs/ MLAs for defecting from their party by taking away their membership of the legislature. It gives the Speaker of the legislature the power to decide the outcome of defection proceedings.

• The anti-defection law was added to the Constitution through the Fifty-Second (Amendment) Act, 1985 when Rajiv Gandhi was PM.
• It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
• A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
• This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
• The law applies to both Parliament and state assemblies.

Exceptions under the law

• Legislators may change their party without the risk of disqualification in certain circumstances.
• The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favor of the merger.
• In such a scenario, neither the members who decide to merge nor the ones who stay with the original party will face disqualification.

To get more details on the evolution of the act, tap here:

https://www.civilsdaily.com/news/explained-anti-defection-law-and-its-evolution/

Issues with the Anti-defection cases these days

• Generally, when doubts are cast on the CM that he has lost the majority, the opposition and the Governor would rally for a floor test.
• Now, this may seem like an administrative act. But loopholes around the law has brought politics into the picture. Let us understand the various ground situations involved:

1) Defection proceeding

• A Supreme Court Bench is scheduled to hear an appeal filed by the Rajasthan Assembly Speaker’s office challenging the State High Court order to defer anti-defection proceedings against former Deputy CM.
• The petition said the HC has crossed its jurisdiction by asking the Speaker to put off his decision on the disqualification notices issued to dissident MLAs.
• The High Court’s interim order granting extended time to rebel MLAs to file their replies to anti-defection notices amounted to a violation of Article 212 (courts not to inquire into the proceedings of the legislature).
• The petition said that judicial review of ongoing anti-defection proceedings was limited.
• The petition referred to the Constitution Bench judgment of the top court in the Kihoto Hollohan case in 1992 in this context.
• Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a prior action would not be permissible.
• Nor would interference be permissible at an interlocutory stage of the proceedings, the verdict says.

2) Summoning the house

Rajasthan Governor returning the fresh proposal by the state Cabinet – seeking to convene a session of the Assembly has raised fresh legal questions on the powers of the Governor. But a Constitution Bench judgment of the Supreme Court has held that a Governor is bound to convene a meeting of the Assembly for a floor test on the recommendation of the Cabinet.

• Article 174 of the Constitution gives the Governor the power to summon from time to time “the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…”
• However, the phrase “as he thinks fit” is read as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the cabinet.
• Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.
• The Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker (2016) expressly said that the power to summon the House is not solely vested in the Governor.
• The court has highlighted that Article 163 of the Constitution does not give the Governor a “general discretionary power to act against or without the advice of his Council of Ministers.
• The discretionary powers are limited to specified areas like giving assent or withholding/referring a Bill to the President or appointment of a CM or dismissal of a government that has lost confidence but refuses to quit, etc.

3) Floor test

• Now, we know that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority.
• In fact, on numerous occasions, including in the 2016 Uttarakhand case, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
• In 2016, the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker expressly said that the power to summon the House is not solely vested in the Governor.

4) Time Limit for defection plea

• The Anti-defection law does not specify a time period for the Presiding Officer to decide on a disqualification plea.
• Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

5) Deciding on merger or split

• The Tenth Schedule of the Constitution prohibits defection to protect the stability of governments but does not prohibit mergers.
• Paragraph 4(2) of the Tenth Schedule, dealing with mergers, says that only when two-thirds of the members agree to “merge” the party would they be exempt from disqualification.
• The “merger” referred to in Paragraph 4(2) is seen as a legal fiction, where members are deemed to have merged for the purposes of being exempt from disqualification, rather than a merger in the true sense.
• Major political parties argue that a state unit of a national party cannot be merged without the party being merged at the national level.
• However, the Tenth Schedule identifies this dichotomy between state units and national units.
• As per Paragraph 4(2), “merger” of a party means merger of a legislative party of that House and not the national party.

Yet another feature: ‘Resort’ Politics

• The sight of legislators being packed off in luxury buses, and lodged in comfortable, even luxurious, hotels and resorts, has become a common feature of Indian politics.
• It usually happens when a state government is in crisis, when a crucial election for a Rajya Sabha seat is underway and numbers are fluid, or when a rebellion is underway to change the regime in a state.
• A political party — or the rebel faction — then rushes to consolidate the legislators who are in its favour.
• The objective is to ensure that these legislators don’t succumb to temptations and inducements offered by the other side, and instead, remain under constant surveillance.
• The method then adopted is to lock them in, till the crisis is resolved one way or the other.

What we can learn from the ongoing situation?

As recent events have made clear, however, the Tenth Schedule is no longer an effective check on the phenomenon of defection, and an urgent reconsideration is required. There are a few reasons why this is so.

1)  Loopholes are present in the law itself

• The first is that the defecting MLAs have found a way around the restrictions in the Tenth Schedule.
• Instead of formally “crossing the floor” or voting against their party in a confidence motion, they resign from the party.
• This brings down the party’s strength in the House, and the government is toppled.
• A few months later, when by-elections are held, the same MLAs then stand for election on the ticket of the opposition party and are returned to the assembly.

2) Judiciary can ‘conditionally’ intervene

• Unfortunately, in their recent judgments, the courts have failed to stop defection practices (although, arguably, the language of the Tenth Schedule does not leave much room to the judiciary).
• No matter how well-drafted a constitutional provision is, ultimately, its implementation depends upon constitutional functionaries acting in good faith.
• As BR Ambedkar pointed out soon after the framing of the Constitution, every constitutional text can be subverted if those charged with running the affairs of government are inclined to do so.

3) Political commitment is under question

• In recent times, it has become clear that the major constitutional actors involved in times of constitutional instability — i.e., the governors and the speakers — do not act in good faith.
• In every constitutional crisis over the last few years, governors/speakers have acted like partisan representatives of the political party that appointed them, and have flouted constitutional conventions with impunity.
• Instances include decisions regarding which party to call first to form the government in a hung house, to order — or refusing to order — floor tests to prove majorities.

4) Horse-trading persists in Indian politics

• More recently, the Rajasthan High Court effectively injuncted the Speaker of the Rajasthan Assembly from acting upon disqualification notices, despite clear SC precedent to the contrary.
• It can be pointed out that horse-trading of legislators persists.
• It has been widely reported that huge sums of money are offered to MLAs to desert their parties and bring down the government.

5) Role of Legislators is being compromised

• The anti-defection law has restrained legislators from effectively carrying out their functions.
• In a parliamentary system, legislators are expected to exercise their independent judgement while determining their position on an issue.
• The choice of the member may be based on a combination of public interest, constituency interests, and party affiliations.
• This fundamental freedom of choice could be undermined if the member is mandated to vote along the party line on every Bill or motion.

6) Accountability of the government is compromised

• The anti-defection law deters legislators from holding the government accountable for its actions.
• One of the key features of parliamentary democracy is that the government is accountable for its decisions.
• However, the anti-defection law deters a legislator from his duty to hold the government accountable, by requiring him to follow the instruction of the party/coalition on almost every decision.

7) Overall decision making is hindered

• The anti-defection law leads to major decisions in the legislature being taken by a few party leaders and not by the larger body of legislators.
• This implies that anyone who controls the party leadership can issue directions to all legislators.
• Thus, voting in the House will be as per the wishes of a few party leaders/ coalition leader rather than the beliefs of all legislators or the need for urgency.
• Consensus if often dictated against which democratization within political parties is sought.

8) Clueless voters are the ultimate losers

• The anti-defection law breaks the chain of accountability between elected representatives and the voter.
• The legislator would have to justify his decision if he differs from such a view.
• If he dissented from the party line, he would lose his seat and would be unable to work for the citizens’ interests on other issues.
• This further reduces the accountability of elected representatives to citizens.

Way Forward

In sum, therefore, the anti-defection law needs to be improved than repealed.

Over the years, several amendments/recommendations have also been suggested to reform various aspects of the law.  Let’s consider some of them:

Sources: Law Commission, 1999; National Constitution Review Commission, 2002; Law Commission Report, 2015; Law Commission Draft Report, 2018; Dinesh Goswami Committee on electoral reforms, 1990, Halim Committee on anti-defection law, 1998 (from R. Kothandaraman Ideas for an alternative Anti-Defection law, 2006); PRS

Conclusion

We must know that politics has a way of getting ahead of principles and practices, and establishing its own norms. It is important to understand how this growing pattern makes a mockery of Indian democracy, speaks poorly of elected representatives and is an insult to the voter.

Need of the hour is complete revamp of the anti-defection law. As Gandhiji, would put it ‘Politics without principle’, is a sin which should be avoided in all case.

 

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References

https://www.prsindia.org/sites/default/files/parliament_or_policy_pdfs/Anti-Defection%20Law%20Intent%20and%20Impact_0.pdf

https://www.civilsdaily.com/story/anti-defection-law/

https://www.civilsdaily.com/news/explained-anti-defection-law-and-its-evolution/

https://www.hindustantimes.com/analysis/why-the-anti-defection-law-has-failed-to-deliver/story-JtDhlEFHZ8VPpnNBD7Fv9J.html

https://www.thehindu.com/opinion/lead/getting-ahead-of-constitutional-practices/article32233269.ece