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The Evolution Of Anti-Defection Law In India And Its Future: A Legal Perspective

What Is Political Defection?

The change of political loyalty by an elected public representative is known as defection. In other words, when an elected public representative leaves his political party and joins other party due to personal or political differences or makes a new political party then it is termed as defection.

Defection undermines the stability of the Government, which is dependent on the support of the majority party's own elected regulators or coalition of those elected to represent other parties.

In India prior to the introduction of anti-defection law, both the Central Government of India and the governments of some of its states and territories had experienced instances of perceived instability resulting from legislators changing their political alliance.

An extreme example occurred in 1967, when the Haryana legislator Gaya Lal changed his alliance three times in a single day and gave rise to the infamous expression 'Aya Ram Gaya Ram'.

By one estimate almost 50 % of 4000 legislators elected to central parliament federal assembly in 1967 and 1971 general elections subsequently defected, leading to political turmoil in the country.

A law was sought to limit such frequent defections in India. In 1985, the Tenth Schedule of 52nd amendment to the Constitution of India was passed by ghee parliament to achieve this.

The aim of anti-defection law is to curb tendency among legislators to switch loyalty from one pary to other and arrest the toppling of regimes and formation of new one, to ensure that the legislative programmes of the Government are not jeopardized by a defecting parliamentarian.

The anti-defection law enacted through the introduction of Tenth Schedule in the constitution provides the various grounds for disqualification.

Tenth Schedule

The provision in para 2.1 (a) provide disqualification of a member if he or she voluntarily gives up the membership of the party to which he belongs, whereas para 2.1 (b) addresses a situation when a member votes votes or abstains from any crucial voting contrary to the directives circulated by his or her respective political party.

The law through para 2.2 states that any member, after being elected as a representative of certain political party, shall be disqualified if he or she joins any other political party after the election. The act or merger is excluded from preview of disqualification, provided if the said merger is with two third of the members of the legislative party who have consented to merge with another political party. According to P.D.T. Acharya, merger under Tenth Schedule can take place only between two original political parties.

There are two conditions to fulfill a merger under Tenth Schedule.

There should be merger between two original political parties.

Subsequently two third of members of that house belonging to that party should accept the merger.

However if the condition arises when the original party merges with another party, and if two third of the legislators do not agree with such a merger there is no merger in law and the result is disqualification of defecting members.

However, recently, the Goa bench of Bombay Highcourt held in a defection case involving Goa assembly's congress members that if 2/3 of the legislators merge with another party this is a merger in law. The members of original political party is not an essential requirement.

This was an erroneous interpretation of paragraph 4 of the Tenth Schedule. The SC had held Sagjit Singh v/s State of Haryana (2006) that the split should occur in political party and only thereafter can the legislators claim exemption from the group consisting of 1/3 of the members of the legislative party. This was decided when split was a part of law. The ratio of this decision aptly applies to the merger provision too which would mean the merger has to take place between the original political party of defecting legislators and another party.

In recent past, in number of states, wholesale defection have taken place invoking para 4 of Tenth Schedule. In Arunachal Pradesh, the entire congress legislative party, along with its leader joined the BJP.

In a current Maharashtra political crisis, too the number 37, which constitutes ShivSena's strength in the assembly way being quoted in political circles. However the law does not allow any separate group to be formed out of political party to form an alternative government with the help of another party. In order to get exemption from disqualification, the dissident ShivSena group will have to merge with BJP.

When Eknath Shinde with his supporters were in Assam, Shivsena had applied to disqualify only 16 MLAs of Shinde camp and not all MLAs who fled from Uddhav camp. Important to note that the Speaker position in Maharashtra Assembly is vacant. Subsequently two independent MLAs brought No Confidence Motion against the deputy speaker 'Narhari Zirwal'. However deputy speaker rejected it.

The Shinde group asserted that he along with other MLAs is the original Shivsena party in assembly. The matter is taken up for consideration before SC. It is expected that SC gives guidelines pertaining to this. Shinde group gave some logic for their position.
  1. The party present in the assembly should take their major decisions by majority.
  2. As per the Anti-defection law, major decisions should take unanimously. The minority members fear their disqualification, so they vote against their will in favor of party. This is not truly democratic.
  3. The Anti-defection law has been enacted keeping in mind the democracy. The member of original partywas elected because of the partyrepute. So changing the party against the party will is also undemocratic. Even if the party unanimously decide to change the floor, it is also undemocratic.
  4. Any decision taken by the party, will be told by whom is the question. The leader in the House or the actual president of the party? Again if there are opposing views of those two individuals, then who should designated as a 'party'?
  5. If party president's view is in minority in Assembly and leader of the party is in majority, then election system within party should be activated.

In the latest example of dissent in the party is observed in conservative party of UK. We claim that we have adopted British model of parliamentary system, but not in tru sense within party. Now the leader of conservative party is the leader of House of Commons. They are following a system where 'president' is not a member of assembly of parliament. It would make sense if we take a clue from them.

There are some suggestions from 170th law commission report to avoid such situation.

According to the commission paragraph 3 and 4 of Tenth Schedule should be eliminated altogether. The aim being that a person elected on the ticket of a political party should remain with inducing the life of House or leave the House.

The report suggested formation of constitution by every political party, which shall mention aims and objectives of party, procedures for admission and expulsion and resignation by members, the rights, duties and obligations of members, grounds on which and procedure for taking disciplinary action agaist the members and other rules. (Based on the German law on political parties, 1967)

It advocates the need of internal democracy within the parties and strengthening the internal structure. The membership of House of a member is not his private property nor can be trade it. It is a trust and he/she is a member of trustees. The member can not take advantage of the name and facilities of political party, fight the election on the ticket of that party, succeed and later refuse to be subject to discipline of political party.

The definition of the expression 'original party ' may be dropped and in its place the following definition should be inserted.

Political party in relation to member of a House, means the political party on whose ticket that member was elected and where such political party is a part of a front or coalition formed before a general election, for contesting such election, such front or coalition.

Provided that the election commission is informed in writing by all the constituent parties in the front or coalition before the commencement of the pole, that such a front or coalition has been formed.

The crying need of the hour is to strengthen the internal democracy within each party to such an extent that no cases of defection would arise in future.

Written By: Aditi Pangarkar - Has obtained bachelor's in law. She has written articles on adoption, and environmental issues. The articles have featured in Maharashtra law journal and one of the esteemed newspaper The Hitvada, Nagpur. She has also contributed towards The letters to the Editor column , The Indian Express
Email: [email protected], Ph no: 9011390298)

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