UPSChub Polity

Key Provisions of the Act

The Act contains the following provisions with respect to the disqualification of legislators on the ground of defection [Articles 102(2) and 191(2)]:

Exceptions to Disqualification

The disqualification on the ground of defection does not apply in the following two cases:

• Merger: If the member goes out of his party as a result of a merger of the party with another party. A merger takes place when 2/3rd of the legislators of the party have agreed to such a merger.
• Presiding Officer: If a member, following their election as the presiding officer of the House, willingly renounces their party membership or reverts to it after stepping down from that position. This exception is granted to uphold the dignity and impartiality of the office.

Deciding Authority & Rule-Making Power

• Deciding Authority: The Presiding Officer of the House is responsible for deciding any matter related to disqualification resulting from defection. Initially, the law stated that the presiding officer’s decision was final. However, in the 1993 Kihoto Hollohan case, the Supreme Court ruled this unconstitutional, restoring the power of judicial review. The presiding officer’s decision is now subject to judicial review.
• Rule-Making Power: The Presiding officer has rule-making power to give effect to the provisions of the Tenth Schedule. All rules must be placed before the House for 30 days for approval, modification, or disapproval.
• Handling Contraventions: Willful contravention by any member may be dealt with as a breach of privilege. The presiding officer can take up a case only upon receiving a complaint from a member, must afford the accused an opportunity to explain, and can refer the matter to the Committee of Privileges. This implies defection does not have an immediate and automatic effect.
• Role of Whip: Charged with ensuring attendance and securing support. A member defying the whip and voting against the party’s official position may be subject to disciplinary action under the anti-defection law.

Evaluation & Significance of the Act

• Political Stability: It aims to provide greater stability in the body politic by checking the tendency of legislators to change parties.
• Democratic Realignment: It facilitates the democratic realignment of parties in the legislature by way of merger of parties.
• Curbing Corruption: This act reduces corruption at the political level as well as non-developmental expenditure incurred on irregular elections.
• Constitutional Recognition: This act gives, for the first time, a clear-cut Constitutional recognition of the existence of political parties.
• Responsibility and Loyalty: To make MPs more responsible and loyal to the parties with whom they were aligned at the time of their election.
• Ensuring Cohesion: It promotes stability and cohesion within political parties and prevents party system fragmentation.

Issues with the Anti-Defection Law

• Curbing Dissent: Political parties many times function as an authoritarian force, suppressing dissent among its members and compelling them to conform to party leadership. This affects debates and discussions in the Legislature.
• Legitimises Wholesale Horse Trading: It allows wholesale defection under the guise of the merger exception (2/3rd majority) but bans retail defection.
• Anti-party Activities Outside the Legislature: The act does not explicitly provide for expulsion for activities outside the legislature. However, in the Ravi Naik Case (1994), the apex court held that working against the interest of the party informally can be inferred as an act of voluntary resignation.
• Discrimination: If an independent member joins a party, he is disqualified, while a nominated member is allowed to do the same within a six-month window.
• Controversial Role of Speaker: The presiding officer may not act impartially due to political exigencies and often lacks the legal knowledge to adjudicate. Additionally, the law lacks a specific Time Frame. Discrepancies exist, with some cases taking up to three years to resolve.
• Undermining Representative Democracy: Legislators become accountable primarily to the political party rather than the public, eroding public trust. It also leads to the Fragmentation of Parties as politicians form their own small parties to avoid disqualification.

Recommendations for Reform (NCRWC & Committees)

• Ministerial Cap: Recommended a cap of 10% of the total strength of the house on the number of ministers. (The 91st Amendment later enacted a 15% cap based on various committee recommendations including the Dinesh Goswami Committee).
• Barring Defectors: Defectors should be barred from holding public office or any remunerative political post for the remaining term.
• Judicial Rescue in Floor Management: To prevent instability due to no-confidence motions, the vote cast by a defector to topple the government has to be treated as invalid. Such norms should be placed directly in the anti-defection law.