Anti-Defection Law and the Madhya Pradesh Political Crisis
Senior Congress leader Jyotiraditya Scindia parted ways with Indian National Congress after 19 years resulting in the downfall of the Kamal Nath government in the state. The fate of the government, which was already hanging in balance, was almost settled because resignations of the 22 rebel Congress MLAs were accepted by the Speaker. Despite a strategically significant state like Madhya Pradesh sliding out of its kitty only 15 months after it came to power, the Congress' already diminishing foothold in India's political canvas has shrunk further.
What exactly ensued was a series of well-planned events and a discovery of a loophole in the Anti-Defection law. In states, where the margin of seats between the ruling party and opposition is very narrow, the defection of a portion of MLAs, though deprives them of the membership of the assembly, but increases the fraction of opposition members in the remaining seats of the assembly, that ultimately led to the change of government in the state, despite the presence of a law concocted for prevention of such practices.
Defection means switching after being voted from one political party to the other. The anti-defection law is intended to disqualify members of parliament or state legislatures from one political party to the other on the basis of defections. The people elect a member of the legislative assembly and bear their vote to parliament. In view of this, protections were put in the Constitution to test for resignation on the whimsical ground or with ulterior motive by the elected representatives.
52nd Amendment Act of 1985 provided for the disqualification of the members of Parliament and the state legislatures on the ground of defection from one political party to another. 1Oth schedule to the constitution was added by the 52nd amendment act.
It stated that a member of a political party may be excluded if that member resigns voluntarily to the political party on whose ticket he/she has been elected to the house after being elected or disobeys the Party leadership's directives on a vote. An independent member of a House (elected without presenting himself as a candidate to a political party) will be excluded if he joins any political party.
SHORTCOMINGS OF THE LAW
- It makes no difference between dissent and defection. It curbs the right of lawmakers to protest and to freedom of conscience. Therefore, “it simply places party bossism in the name of party control on a pedestal and sanctions tyranny in the name of party discipline”. This irrationally distinguishes between individual defection and party defection.
- A member may be expelled for violating party rules by the political party. A leader expelled from a political party would not be excluded from house membership. The presiding officer can only take up a case of defection when he/she receives a complaint from a house member. The speaker does not need to take the decision right away. Hence, defection has no immediate and automatic effect.
- Since any disqualification issue resulting from defection is to be determined by the presiding officer, the parties in power have begun to abuse the expansive powers of the speaker's office when determining disqualification matters.
- The statute does not allow for a time limit for the presiding officer to rule on a petition for disqualification. Because courts can only act after the presiding officer has ruled on the matter, the plaintiff seeking disqualification has no choice but to wait until this decision is reached. In some cases, this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House.
- The vesting of decision making authority in the speaker is criticized on the grounds, that it may not be exercised in an impartial and objective manner, due to political exigencies. And since initially it was not amenable to judicial review, it became a tool of such malpractices.
- In the year 1993, in Kihoto Hollohan V. Zachilhu case, the Supreme Court declared that this provision is unconstitutional on the ground that it seeks to take away the jurisdiction of Supreme Court and High Courts. Hence since 1993, the decision of chair is subject to the judicial review. It means the disqualification of a member can be challenged in a court of law.
Only this example of judicial activism is not sufficient to cleanse the law. A major overhaul is needed in this respect. The above analysis is evident, why Anti-Defection Law is full of defects. It curbs individual defection, but “subliminally authorizes group defection.”