Anti-defection Law: Achieving Stability at the Cost of Accountability – By FAHAD GHANI

Abstract

Rajiv Gandhi’s government on 24^th Jan. 1985 introduced a Bill, namely, The Constitution (Fifty-Second Amendment) Bill in the Lok Sabha. Through this, the Tenth Schedule was added to the Constitution of India. This created provisions for the disqualification of legislators on the ground of defection and hence began the race towards achieving a stable government. As of now, it seems the race that had begun has no finish line. The law is yet to achieve its goal. The Anti-defection law has not only failed in achieving a stable government but has also created a breakaway from the vision of constitutional makers. The only reason for adopting a Parliamentary democracy over Presidential form was to make the representatives accountable to the voters but the law has reduced the legislators to bondsmen of the party bosses. The law has, no doubt, failed both the Constitutional makers and the voters.

Introduction

The onset of coalition politics in India has opened the floodgates to defections. The Culture had become so rampant that in 1967, an MLA Gaya Lal from Haryana, changed his allegiance three times within a fortnight[1]. In order to put an end to this evil law, Anti-defection law was promulgated. Anti- defection law, as the name suggests, is a law to control the evil of defections. It was the result of a desperate attempt to control the “aaya Ram, gaya Ram” culture in Indian politics.  The Anti-defection law envisages a political atmosphere where it is difficult for the legislators to switch sides to other political parties after being elected from a particular party. To achieve this goal provisions of the law were made in concurrence with the recommendations given by the Dinesh Goswami Committee on electoral reforms. It was thus stipulated that the representatives of the voters were to fall in line with the bosses of the party from which they were chosen. Legislators were thus reduced from a representative of his constituency to a representative of a political party. More responsible to the party than to the voters. B.R. Ambedkar, in his famous ‘Stability versus Responsibility’ speech had very astutely explained why it was necessary to have a responsible government rather than a stable government[2]. He was of the view that between the parliamentary form and presidential form of governments, a two fundamentally different form of governments, a parliamentary form was more democratic. Although the Presidential form provides stability it lacks accountability whereas the Parliamentary form of government, although, lacks stability but gives responsibility and furthers the cause of daily democracy. But the Anti-defection law made way for stability at the cost of accountability.

An ineffective Law

Although the Anti-defection law was brought in to achieve stability in governance it has, unfortunately, failed to achieve its objective. The provisions of the law attract disqualification of the legislators mainly on the following grounds[3]: –

1. Voluntarily giving up the membership of the party by a legislator.
2. Votes or abstains from voting or defies any party whip by a legislator.
3. Joining any other party after being elected from a particular party.

The provisions also provide for disqualification of the nominated members. However, the law allows the merger of a political party with another when not less than 2/3^rd members of the party do so. In 2018 all six MLAs from the BSP had joined the ruling Congress party in Rajasthan[4]. In another provision, which now stands repealed by the 2003 amendment[5], legislators were given relaxation from disqualification in the event of a split of 1/3^rd of the members. Moreover, the Tenth Schedule also bars any court jurisdiction in case of disqualification of any legislator. But the Court can interfere in accordance with the power enshrined upon them under Articles 32, 226 and 137. The provisions of the law empower the Presiding officer to form rules and decided on the matter covered under the tenth schedule[6].

In order to duck the provisions, unfortunately, the legislators have found a way around the law. They simply resign. The recent events in various States suggest the same. Very recently in February a democratically elected Chief Minister had to resign because six MLAs from his party had resigned. This reduced the majority of the party in the house[7]. In 2020 in M.P, the ruling Congress party had to make way for the BJP after 22 MLAs of the Congress MLAs had resigned[8]. The scenes in Karnataka in 2019 were quite baffling. The coalition government of the Congress and the JD(S) had fallen after 17 MLAs were disqualified by Speaker K.R. Ramesh Kumar. Amidst the conundrum, the speaker had said, “If we speak of rooting out corruption without electoral reforms, it will only be hypocrisy.”[9] He further stressed the need to reexamine the Tenth Schedule.

Another major problem associated with the law is that of the unfettered power vested upon the presiding officer to decide on disqualifications. On this, the Supreme Court has observed in KohitoHollohan v. Zachillu&Ors[10] and KeishanMegachandra Singh v. Hon’ble Speaker[11]that it was time that the Parliament do a rethink whether disqualification petitions ought to be entrusted to a speaker as a quasi-judicial authority when such a Speaker continues to belong to a political party either de jure or de facto.

The debate regarding the Constitutional validity of the law was in the news when Sachin Pilot had taken a rebellious turn against his own Party in Rajasthan. Sachin Pilot had moved the High Court praying that clause 2(1)(a) of the Tenth Schedule be declared ultra vires the basic structure of the Constitution[12]. He contended that mere expression of dissatisfaction or even disillusionment against party leadership cannot fall within clause 2(1)(a) of the Tenth Schedule and if it does then it is against the right of freedom of speech and expression enshrined under Article 19(1)(a). The Constitutionality of the Tenth Schedule was also challenged in KihotoHollohan v Zachillhu. The Supreme Court in a split judgment of 3-2 had then upheld the validity of the law[13].

Conclusion

It can be, thus, concluded that the Anti-defection law is not serving the purpose it was made for. The fear of instability still looms large upon various governments. It is time that we take a step back to fulfil the dreams of our Constitution makers. No doubt stability is important for good governance but accountability is more important for the healthy functioning of any democracy. Moreover, in order to achieve both stability and accountability, a new law should be brought in where an elected representative is more liable to the voters and less to the party. The legislator should be made accountable to the party only in matters which are pertinent to maintain the stability of the government for instance in matters of the no-confidence motion and budget sessions.

[1]https://indianexpress.com/article/opinion/columns/gaya-lal-and-haryana-art-of-defection-5875942/

[2]http://164.100.47.194/Loksabha/Debates/Result_Nw_15.aspx?dbsl=144&ser=&smode=

[3]https://legislative.gov.in/constitution-fifty-second-amendment-act-1985

[4]https://www.thehindu.com/news/national/six-rajasthan-bsp-mlas-join-congress/article29437906.ece

[5]http://archive.indianexpress.com/news/antidefection-law/339606/

[6] https://www.prsindia.org/theprsblog/anti-defection-law-explained

[7] https://www.hindustantimes.com/cities/others/puducherry-govt-falls-on-brink-of-elections-101614021223563.html

[8] https://indianexpress.com/article/india/kamal-nath-resigns-madhya-pradesh-cm-government-falls-6323939/

[9] https://www.thehindu.com/news/national/karnataka/karnataka-speaker-exits-house-with-plea-for-electoral-reforms/article28754582.ece

[10] 1992 SCR(1) 686

[11]2020 SCC OnLine SC 55

[12] https://theprint.in/theprint-essential/heres-what-the-anti-defection-law-challenged-by-sachin-pilot-in-rajasthan-hc-says/467396/

[13] https://indiankanoon.org/doc/1686885/?type=print