The Anti Defection Law & its failure to check defections

• Maharashtra is in the throes of a constitutional crisis.
• Many ruling Shiv Sena legislators who seem to have revolted against the leadership of Chief Minister are now holed up in a hotel in distant Guwahati to keep out of the reach of party leaders.
• All indications are that there is a planned mass defection underway so that an alternative regime that includes the BJP is formed in the State.

About Anti-defection law

• The Tenth Schedule of the Constitution, commonly known as the anti-defection law, was introduced in 1985 with a view to curb the tendency among legislators to switch loyalties from one party to another and facilitate the toppling of regimes and formation of new ones.
• It provides for the Presiding Officer of the legislature to disqualify any defector on a petition by another member.
• The law contemplates two kinds of defection: (a) by a member voluntarily giving up membership of the party on whose symbol he got elected (b) by a member violating a direction (whip) issued by his party to vote in a particular way or to abstain from voting.
• While voting contrary to the party’s whip is quite a straightforward instance of defection, the other mode of defection has proved to be a source of dispute and litigation.
• A member ‘voluntarily giving up membership’ does not refer to a simple resignation letter and formally joining another party.
• It is often an inference drawn by the party that loses a member to another based on the legislator’s conduct.
• The Supreme Court has also ruled that ‘voluntarily giving up membership’ can be inferred from the conduct of a person.

How do the MLAs plan to avoid disqualification?

• Under Paragraph 4 of the Tenth Schedule, disqualification on account of defection will not apply in case of a merger of one party with another.
• However, there is a rider.
• There is a deemed merger only if two-thirds of the party’s total strength agrees to the merger.
• It needs to be recognised by the Speaker and then the law courts
• Originally, the 10th Schedule had spoken of a ‘split’ in a legislature party as an exception to the disqualification rule.
• Escape clause: if one-thirds of a legislature party leaves it or joins another party, it amounts to a ‘split’ and such members would not attract disqualification.
• This proved to be an escape clause for legislators to form a group that amounted to one-third of the legislature party’s total strength and then cross over.
• Paragraph 3, which allowed the use of a split to avoid disqualification for defection, was deleted by the Constitution (91st Amendment) Act, 2003.

Stand of court on defecting MLAs

• In a recent instance, the Bombay High Court at Goa ruled in favour of MLAs who had defected from the Congress to the BJP in Goa.
• The court noted that they satisfied the two-thirds requirement for a deemed merger and ruled that they were exempted from disqualification.

Conclusion

• As defections continue unabated and Speakers refrain from acting on these developments based on their political loyalties, there is a strong case to reform the anti-defection law.
• Redefining the merger clause, shifting the adjudicatory power from the Speaker to some other credible authority and even dispensing wholly with the law are measures that jurists have suggested.
• Some believe that the anti-defection law should be scrapped as it enslaves members to their party line, prevents them from representing their constituents and the people, and violates their freedom of expression.