Anti defection law: Need for reforms

 12 Oct 2020

In a very dramatic situation, from the Madhya Pradesh politics, Jyotiradhitya Scindia, one of the most senior leaders of the congress party joined BJP. He was a 3-time Parliamentarian and a former cabinet minister. He played a key role in the 2018 Madhya Pradesh Assembly elections and was in the queue of becoming the Chief Minister also. 

But it’s not just Scindia who has resigned from the INC, 22 Congress MLA have also offered to resign, soon after Mr. Scindia ended his 18 year-long association with the Congress. 

Scindia’s parting ways with the Congress has plunged the Kamal Nath government in Madhya Pradesh into crisis, which may soon have to take a floor test.

Defection and law to prevent it

The jumping of an elected political representative from one political party to the other after being elected is termed as defection. The term became popular in the Indian political history after the Gaya Lal, MLA from the Hodal assembly seat of Haryana, in 1967 changed party thrice in a fortnight. He was declared as "Aaya Ram Gaya Ram”. In 1985 the Constitution was amended to prevent such defections. The anti-defection law was meant for the disqualification of members of Parliament or State Legislatures on the grounds of defections from one party to another. 

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A member of the legislative assembly is elected by the people and carries their mandate in the house. Considering this, safeguards were placed in the constitution to check resignation by the elected members on the whimsical ground or with an ulterior motive.

The 52nd Amendment Act of 1985 provided for the disqualification of the members of Parliament and the state legislatures on the ground of defection from one political party to another. The 10th schedule to the constitution was added by the 52nd amendment act to cancel the membership of the legislature.

Disqualification under the Anti-Defection law

A member of a political party can be disqualified if that member after getting elected voluntarily resigns to the political party on whose ticket he/she got elected to the house or when he/she disobeys the directives of the party leadership on a vote. An independent member of a house becomes disqualified if he joins any political party after winning such an election. They can externally support the government, but can’t join the party.

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Merger Clause

Under the Anti-Defection law, there’s a clause that allows the 2/3rd members of a political party to combinedly join another political party. This is termed as Merger and the member can’t be disqualified under it. This no. was 1/3rd earlier but was changed to 2/3rd after the 91st Amendment act of 2003 as in some small states, the 1/3rd no. is very less and the members can be easily be joined in the different parties in the temptation of getting key positions. Since then, the parties in power have started misusing the expansive powers of the speaker’s office in deciding matters of disqualification.

Any question regarding disqualification arising out of defection is to be decided by the Presiding officer, the speaker. The speaker usually used to be from the ruling party or the alliance in power. The speaker has to act impartially in running the proceedings of the house but it’s not so, especially in the cases where the MLAs of the ruling party shift or resign to decrease the overall strength of the house, to change the government.  

 In the initial days, the decision of the speaker was not subjected to the judicial review also. In the year 1993, in Kihoto vs Zochilhu case, the supreme court declared that this provision is unconstitutional on the ground that it seeks to take away the jurisdiction of SC and HCs. Hence since 1993, the decision of the chair is subject to the judicial review. It allowed the disqualification of a member can be challenged in a court of law.

The power of this Judicial review was used in July 2109, in Karnataka, when 17 MLAs of the ruling INC-JD(S) alliance resign from their post, the speaker denied to accept their resignation to protect the ruling government. The MLAs went to SC. The SC gave the judgment in their favor and their resignation was accepted which led to a decrease in the overall strength of the house and allowed the BJP to form the government. 

Current situation and prospects 

The current effective strength of the MP assembly is 228, with 2 seats lying vacant. While Congress has 114 MLAs, there are 107 legislators of the BJP. If the 22 resignations are accepted, the effective strength of the MP assembly will come down to 206, leaving the BJP with slender majority beyond the halfway mark of 103 with its 107 MLAs.

Law empowers Speaker to reject resignation if it is not voluntary or genuine. Technically, the congress government in MP continues to enjoy majority until these resignation letters are not submitted formally and accepted by the speaker.

  Major loopholes of the Anti Defection Law

1. A member may be suspended by the political party for violating the discipline of the party. A suspended member from a political party is not considered disqualified from the membership of the house.

2. The speaker can take up a defection case only when he receives a complaint from a member of the house. He can’t take a Suo-moto cognizance. 

3. It is also not necessary for the speaker to take an immediate decision. He can hold the matter.

4. According to Article 190 of the constitution, if the speaker is satisfied that resignation is not voluntary or genuine, he shall not accept such resignation.

The vesting of decision-making authority in the presiding officer is criticized because he/she may not exercise this authority impartially and objectively due to political exigencies.

The need of the hour is to reform the loopholes in the Anti-defection law so that the mandate of the people is not insulted. 

People also have the responsibility that they should not re-elect such people who have already insulted their mandate once.

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