In recent past we are seeing more discussions on anti-defection law as many parities in power are misusing provisions of above law and encouraging defection of leaders from opposition into ruling parties. For instance, in Andhra Pradesh 23 legislators defected from YSRCP to TDP during the term 2014-2019, but none of them were disqualified. 26 MLAs defected from opposition parties to the ruling TRS party in Telangana during the term 2014-2018 with impunity.
Before analysing anti defection law lets have a look how this law was evolved. During 1967 a resolution was passed in parliament based on that a committee was appointed by then home minister YB Chavan as its head to study on defections issue and based on recommendations of committee a bill was prepared and introduced in parliament In 1973 and 1978 but it was not passed on both times.
During years of 1967-83 approximately 2700 members defected their parties and out them 212 were appointed as ministers and even 15 members became chief ministers. Gaya Lal, a member of the Legislative Assembly from Haryana changed party thrice in a fortnight in 1967. This lead to the birth of the phrase “Aaya Ram Gaya Ram”.
In 1985 during tenure of Rajiv Gandhi govt constitution was amended and 10th schedule was added and it was known as Anti Defection law it and it reads as follows:
Disqualification on ground of defection.., a member of a house belonging to any political party shall be disqualified for being a member of the house:
- If he/her has voluntarily given up his membership of such political party;
- If he/her 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. The person is deemed to belong to that political party which gave him the candidature of the election.
In above act it was mentioned that if 1/3rd members in the house from a party decided to split, then they would not incur disqualification. By using above provision in 1993 the speaker of GOA assembly himself joined hands with defectors and he became chief minister and many more members escaped from getting disqualified. To overcome hurdles amendment was made to 10th schedule of constitution in 2003 and it deleted above provision and included new rule that says if 2/3rd of the members of a party in the house decide to merge with another political party, they will not attract disqualification under the anti-defection law.
Based on the above context in which the presiding officers of the Telangana state assembly and ruled on the merger of Telugu Desam Legislature party (TDP) with the ruling Telangana Rashtra Samithi (TRS) during 2014-2018 and the merger of Indian national congress (INC) legislature parties both in assembly and councils in 2019, same was done by Rajya Sabha vice chairman during defection of 4 TDP members into Bhartiya Janta party (BJP) recently few days back.
Now lets examine are the decisions taken by speaker/chairman legally valid. In case of Telangana during 2014 elections TDP won 15 MLA seats i.e.., 2/3rd of above no will be 10 members and 12 members were joined into ruling TRS party in a phased manner but not all at same time that mean as per the law when person joins other party it mean he gave up membership of his party voluntarily then he can be disqualified by the speaker but he didn’t follow the rules and kept decision in pending and when number reached 2/3rd then he released a bulletin saying that they were treated as members of TRS party same happened with members of YSRCP, BSP and now with congress party after 2018 assembly elections. In a whole we can say that decision of speaker is violation of law and on the same issue case were pending in front of Honourable judges of High court of Telangana.
The law mentions word political party there is a clear difference between political party and legislature party i.e., legislature party is part of political party and speaker has no right to merge political party only election commission can do it same happened in case of Praja Rajyam Party merger with Indian national congress, during that process then MLA of PRP Shoba Nagi reddy didn’t agree merger but she was not disqualified because she had her own choice to decide during merger of party and also members of PRP didn’t get disqualified as there is a safeguard in the act saying that if 2/3rd members of political party decide to merge into other party then they will not attract disqualification.
Need to relook Anti-Defection Act:
- Judiciary should give clear interpretation on 2/3rd provision present in the act.
- A certain time limit should be given to the speaker to announce decision regarding disqualification of member when he/she defected party. As of now there is no time limit for speaker to make a decision on complaint under anti defection law based on this rule 23 MLA’s who defected from opposition YSRCP into Ruling TDP party were continued as MLA’s till end of tenure of Andhra Pradesh assembly.
- Decisions under the Tenth Schedule could be made by the President/ Governor on the binding advice of the Election Commission. This will help in protecting the integrity of the office of the speaker.
- Legislators need more freedom in expressing their views with respect to the bills introduced in the house. Disqualification on the grounds of voting against whip issued by a political party should only be applied to the cases where governments stability is under question – money bills and confidence votes. In all other cases, the members of the house should be exempted from disqualification under the anti-defection Act. This will encourage a healthy debate on policy issues and will not ‘unduly impinge’ on the freedom of speech of members.
- By amending constitution a new rule should be introduced stating that if member defects his party then he will be immediately declared as disqualified by election commission.
Anti-defection law states that “ The evil of political defections has been a matter of national concern. If it is not combatted, it is likely to undermine the very foundation of our democracy and the principles we sustain it.” So, its high time to revisit 10th schedule to strengthen anti-defection law which will minimise defections of members from one party to other party which will be a good sign for Indian democracy.