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Anti Defection Law: It's Loopholes Mice Can Breakthrough

Anti-Defection law which was passed in 1985 by the 52nd amendment to the constitution, the law that was contained in the 10th schedule of the constitution came into effect on 1st March 1985, to bring stability to the Indian political system. The Indian political system has a long history of political defections. Aaya Ram Gaya Ram is an infamous slogan that started in 1967 when a Haryana MLA shifted to his loyalty in a single day thrice, so for banning this floor-crossing practice and corruption practice in parliamentary functioning anti-defection law was passed by the Rajiv Gandhi government in 1985. This law put a barrier on the elected members of the house from switching party after being elected , independent members are also disqualified if he joins any political party after such election. Nominated members of a house become disqualified for being a member of the house if he joins any political party after the expiry of 6 months from the date on which he takes his seat in the house.

The most intriguing provision and the subject of this paper, however, lies in Paragraph 2(1)(b) of Schedule X[2] and reads:
2. Disqualification on ground of defection:
  1. Subject to the provisions of Paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House:
    1. If he has voluntarily given up his membership of such political party
    2. If he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention […]

Need for anti defection law
  • Deflection of large number of MLAs
    By one estimate ,between 1967 and 1971 around 140 MPs and 1900 MLAs were defected which is almost 50 per cent of the 4,000 legislators elected to central and federal parliaments .Leading to political turmoil in the country. [3]
     
  • Aaya Ram, Gaya Ram
    In 1967 Haryana MLA Gaya Lal changed his party single day thrice. The infamous slogan Aaya Ram , Gaya Ram of Haryana in 1967 was a cultural shock to the Indian polity. It was popular angst that gave birth to the anti-defection law of 1985.

Provision of the act
  • Disqualifications [4]
    Members of Political Parties: A member of a House belonging to any political party becomes disqualified for being a member of the House,:
    1. if he voluntarily gives up his membership of such political party; or
    2. if he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.
From the above provision, it is manifest that a member elected on a party ticket should recapitulate in the party and obey the party's directions.

Independent Members: An independent member of a House becomes disqualified to remain a member of the House if he joins any political party after such election.

Nominated Members: A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in the House. This means that he may join any political party within six months of taking his seat in the House without inviting this disqualification.

2. Exceptions
The above disqualification on the ground of defection does not apply in the following two cases:
  1. If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such merger.
     
  2. If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of this office.
It must be noted here that the provision of the Tenth Schedule pertaining to exemption from disqualification in case of split by one third members of legislature party has been deleted by the 91" Amendment Act of 2003. It means deflection has no more protection on grounds of splits.

3. Deciding Authority
Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House. Originally, the act provided that the decision of the presiding officer is final and cannot be questioned in any court.

Paragraph 7 of Schedule X says:
S.7. Bar of jurisdiction of courts. Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.

Paragraph 7 declared invalid for want of ratification in accordance with the proviso to clause (2) of article 368 as per majority opinion in Kihoto Hollohon v. Zachilhu, (1992) 1 SCC 309.

91st amendment act (2003)
The anti – defection law of 1985 had some loopholes, so 91st amendment act, 2003 made some changes in it. The major change which was bought by 91st amendment in tenth schedule was of exemption from disqualification in case of split by one third members of legislative party.

Other provisions of this act were:
  1. Disqualification in case of split by one third members of legislative party.
  2. The total number of ministers, including the Prime Minister, in the Central Council of Ministers, shall not surpass 15 percent of the total strength of the Lok Sabha and in the state assembly, the strength shall not surpass 15 percent of the total strength including the chief minister but it shall not be less than 12.
  3. A member of either House of Parliament belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister, the same goes with state legislative assembly.

Karnataka and Madhya Pradesh elections
Karnataka
The state of Karnataka is divided into 224 constituencies. In the 2019 elections, INC won 79 seats, JD(S) won 37 seats and BJP won 105 seats although BJP got the maximum number of seats but could not form a government as it demanded 113 seats for proving majority in the house. So INC and JD(S) form a majority by forming an alliance government. But later on 13 MLA’S of INC and 3 MLA’S of JD(S) resigned reducing total number of seats of the house to 208 , so now majority was to be formed with 104 seats, INC and JD(S) could not prove their majority in the house, so BJP was given the chance for proving their majority BJP proved their majority and formed the government.

The Karnataka MLAs disqualification case posed an unprecedented dilemma before the Supreme Court in that whether the MLAs who defect could evade the rigorous of the Tenth Schedule, by submitting their resignations. The court knew that the MLAs wanted to resign, in order to avoid disqualification by the speaker, and thereby avail the perks of office offered by the then opposition, the BJP, in the event of the latter forming the government, after the fall of the JD(s)-Congress alliance led by the former chief minister, H.D.Kumaraswamy.
As the constitution permits non-members, if not otherwise disqualified as members, to continue as ministers for six months, the period within which they should get reelected, they chose to resign from the assembly, rather than from their parties, which could have resulted in their disqualification under the Act.

The former Karnataka speaker took a controversial decision in disqualifying the 17 MLAs for the rest of the current assembly’s term, so that they do not contest by-elections to seek reelection and resume their membership of the house, and enjoy the rewards offered by the opposition to lure them away from the coalition which ruled the state earlier. The bench, however, struck down this action of the speaker as unconstitutional, and declared them eligible for contesting the by-elections to the assembly.

The bench, while doing so, dwelt upon the importance of party politics in a democracy, and arguably justified the requirement of stability within the government to facilitate good governance, which it claimed is mandated under our constitution. The bench erroneously assumed that good governance is not possible if the government is not stable and therefore, if a few MLAs resign from their seats in order to provide stability to the government of the opposition, so be it.

By approving the disqualification of these MLAs (while declaring their disqualification for the rest of the assembly’s term as unconstitutional), the bench has made the end-result of resignations and disqualifications similar. Under both situations, the MLAs have to recontest to secure their reelection to the assembly. Therefore, it does not really matter whether the Speaker accepts their resignations or disqualify them, except of course, for the fact that a member whose resignation is accepted, but not disqualified, may be in a position to become a minister for six months, without getting reelected to the assembly.[5]

Madhya Pradesh
In March 2020, a political crisis was created in the state of Madhya Pradesh, India, due to the resignation of 22 sitting MLAs of the INC party from the state's Legislative Assembly It eventually led to the fall of the Kamal Nath government and the subsequent formation of the fourth Shivraj Singh Chouhan government in Madhya Pradesh.

Now the question arises why MLAs resigned?
The whole dictionary and grammar of defection have also changed. Words like ‘defectors’, ‘Aaya Rams’, ‘horse trading’, ‘turncoats’, and ‘floor-crossing have disappeared from sections of the mainstream media. Instead, we have softer expressions like ‘win over’, ‘persuasion’, and ‘switching loyalty’. In earlier times, MLAs were herded to farmhouses and guest houses. Now they are taken to resorts and five-star hotels.

Data analysed by the Association for Democratic Reforms (ADR) has revealed that nearly 45% of MLAs who have switched parties and contested elections again between 2016 and 2020 have joined the BJP. On the flipside, 42% of the MLAs who defected left the Congress, the data showed.[6]
ADR said that the average growth in assets of re-contesting MPs and MLAs was Rs 5.85 crore or 39%.

ADR said that democracy relies upon ‘government of the people, by the people and for the people’ where the interests of the citizens are of paramount importance in comparison to ‘private interest of our politicians’. This fundamental principal, however, has become skewed with the failing standards of ethical and moral propriety of India’s parliamentary democracy. The ‘Aaya Ram, Gaya Ram’ syndrome and the never ending ‘hunger for power and money’ has become a common practice amongst our parliamentarians and political parties,

The most plausible reasons behind switching of parties are absence of value-based politics, lust for money and power, strong nexus between money and muscle and reward of office, the watchdog said.

Conclusion
After nearly 25 years from the implementation of our constitution, our legislature sensed the need for some laws of controlling MPs or MLAs from switching parties for their interest. So this law was passed, but because of some loopholes, MLAs or MPs continued their malice practices but just with a slight difference.

Jawaharlal Nehru said in the constitutional assembly that ‘’work of nation is never complete ‘’.So Until and unless these trends are not reined in, our current electoral and political situation is bound to deteriorate further. It will be a mockery of democracy if we fail to plug these loop-holes because of which such defections, changing/switching of party by MPs and MLAs is happening.

End-Notes:
  1. *
  2. Constitution of india 1950
  3. Venkatesh Kumar (May 2003). "Anti-defection Law: Welcome Reforms". Economic and Political Weekly. Vol.38 No.19 (19): 1837–1838. JOSTOR 4413541
  4. Indian Polity –M Laxmikanth 6th edition
  5. From the site- https://m.thewire.in
  6. From the site -https://m.thewire.in
Written By: Atul Yadav is a 2nd yr student of B.A.LL.B, MDU CPAS ,Gurugram, Haryana
Email- [email protected]

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