Anti-Defection Law – In Context Of Current Political Scenario.

Author: Gurupal Singh Gill, 2nd Year, B.Com LLB (H), Tamil Nadu National Law University.

Introduction

The political system of India has always been a challenge to the democracy of India. Over the years, many reforms came in the Indian political system to make it free from any kind of malpractice. The current political instability in Rajasthan is neither new nor unusual. In recent months, instability throughout governments – including the “switching of sides” by elected officials – has become a common affair. Two state governments in Karnataka and Madhya Pradesh have been overthrown in the past year following reports of political defections and horse-trading. The turmoil also occurred in Goa and Manipur. To resolve all these kinds of problems, in 1985, the Constitution was amended to include the Tenth Schedule also known as anti-defection law.

What is Anti-defection law?

Anti-defection law lays down the process by which a member of legislature or parliament may be disqualified on the grounds of defection by the presiding officer of the assembly based on the petition of any other member of the assembly. There are two grounds on which a member of a legislature can be disqualified under the tenth schedule. Either he voluntarily resigns or he is voted against the direction of his party.

The most famous case of defection is of the Hassanpur MLA Gaya Lal, who was been gifted the term Aaya Ram Gaya Ram to Indian politics. Gaya Lal changed his political party three times in a day. At that time there was no law that restrained the elected representatives to change the parties they supported at the time of the election. It was realized that if this evil in the form of political defection was not contained, it would undermine the very foundation of democracy in India and the principles which sustain it.[1]

In 1985, 52nd amendment Act[2] was passed which had introduced the 10th schedule in the Indian constitution. The anti-defection law aimed to avoid any political defections that could be due to office incentives or other related considerations. Para 2 of the schedule says that if a member voluntarily gives up his membership of, or votes or abstains from voting, in the House against the direction issued by the party on whose symbol he or she was elected, then he or she would be liable to be disqualified from membership.[3] 

Rajasthan Political Crisis 

Rajasthan political crisis is not the first of its kind. There are many incidents when other state has faced the same kind of political uncertainty. In the year 2018 congress party formed the government in two states namely Karnataka and Madhya Pradesh. Months after the Karnataka assembly election the government had collapsed because twelve of the congress MLA’s resigned. Soon after that Bhartiya Janata Party formed the government in the state. 

In early 2020 Madhya Pradesh Congress leader Mr. Jyotiraditya Scindia left the party and joined BJP. Soon after his resignation twenty two MLA’s who supported him also resigned from the party and joined BJP. Now the same thing is going on in Rajasthan but this time the situation is quite different from what happened in Madhya Pradesh and Karnataka. In MP and Karnataka, MLA’s had resigned and joined the other party on their own discretion. But in Rajasthan, Sachin Pilot and other MLAs didn’t resign by themselves, they were disqualified by Rajasthan assembly speaker CP Joshi. 

The tussle between Sachin Pilot and Ashok Gehlot started when Sachin Pilot became a rebel against his own party. After all this, Rajasthan CM Ashok Gehlot called Congress party meeting twice in a week and made it mandatory to join for all the Congress MLAs. But neither Sachin Pilot nor the 18 MLAs supporting him attended the meeting. Because of this Pilot was sacked from the post of chief of Rajasthan congress and Deputy Chief Minister as well. On the plea of ruling congress party Assembly speaker sent disqualification notice to all the 19 MLAs including Pilot for disobeying the party.

Now the question that arises here, is that whether this disqualification of Pilot and other MLAs comes under the tenth schedule of the Indian constitution or not? Whether protesting against CM and asking for a change in leadership is deemed to be defection or not? In the case of Balchandra L. Jarkiholi v, B.S. Yeddyurappa[4] Supreme court held that the act of mistrust of the leader of the legislative party does not amount to a voluntary renunciation of the membership of the political party. Similarly, it would not be a voluntary act of giving up the membership of the political party to show no confidence in the government established by his party with a particular leader as the Chief Minister.

Many legal experts also said that this disqualification is beyond the scope of the tenth schedule. In G.Viswanathan v. The Hon’ble Speaker, Tamil Nadu Legislative Assembly[5] it was held that members who have publicly expressed opposition to their party or support for another party were deemed to have resigned. Neither Pilot nor the other MLAs have joined or expressed to join any other party. Protesting against chief minster cannot be deemed to as defection.

One thing that is common in all the political crisis happened in India is horse-trading. This is not a new term for the political arena of India. Basically, when the political party aims to rope in leaders of the opposition party to achieve a majority in the legislature, and in doing so resorts to unapproved tactics, it is called horse-trading. 

Here again, a question arises, whether a politician indulged in horse-trading can be prosecuted or not?According to Article 105(2)[6] of the Constitution, no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote was given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. The clause does not directly cover the MP ‘s external actions. It is, in essence, a kind of fundamental immunity that they are given in their official capacity and, preferably, it does not include actions like taking a bribe to vote in the House.

Why anti defection law failed?

No matter how well a constitutional provision is drafted, ultimately it depends upon functionaries of the constitution how well they implement it. A provision cannot achieve its goal if the same is not implemented in the right way.  It has become evident in recent times that the main constitutional actors involved in situations of constitutional uncertainty.

There are a few reasons why the anti-defection law has failed to deliver its purpose. The main reason is that the defecting MLAs have found the way around anti-defection law. Despite of crossing the floor or voting against their party they resign from the party. This brings down the party’s strength in the house and ultimately the government collapses. The other reason is the role of money in politics. It has been reported that a huge amount of money offered to MLAs to disobey their party and bring down the government. In the by-election, the same MLAs get tickets from the opposition party and find their way back to the assembly.

Until and unless the officials act in good faith malpractice cannot stop. All these activities have been the bane in the Indian political system. There is a need to relook law relating to horse-trading and defection of politicians.

Conclusion and Suggestions

Anti-defection law was inserted in the constitution to eliminate malpractice in politics. But the ongoing events in the political arena of India have proved that this law has failed to deliver its purpose or leaders have found the way to escape from it. Therefore, the anti-defection law needs to be improved. There should be a five-year-long ban on defected leaders from standing in the election. Also, there should be a separate investigation team to probe into the matter of horse-trading and defection. There is a need to change the language of the tenth schedule but should give some more scope to the judiciary. Its high time to take some steps in the larger interests of democracy and the rule of law. If all these steps are not taken the fundamental structure of democracy will collapse.


[1]M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 44 (6th edition)

[2]The Constitution (52nd Amendment) Act, 1985.

[3] INDIA CONST. Tenth Schedule

[4]Balchandra L. Jarkiholi v, B.S. Yeddyurappa (2011) 7 SCC 1

[5]G. Viswanathan v. T.N. Legislative Assembly, (1996) 2 SCC 353

[6]INDIA CONST. Art. 105(2)


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