Anti-defection law

Maharashtra Assembly Speaker recently rejected the disqualification petitions filed against Members of Legislative Assembly (MLAs), citing a lack of valid grounds.

What is Anti-Defection Law?

• The anti-defection law deals with situations of defection in Parliament or state legislatures by members of a political party, independent members, and nominated members.
• In a political scenario it is a situation when a member of a political party leaves his party and joins hands with other parties.
• The Constitution (Fifty-second Amendment) Bill, 1985 was introduced in 1985 which led to amendments in Article 101, 102, 190 and 191 of the Constitution.
• This provides the grounds for vacation of seats for the disqualification of the members and inserted the Tenth Schedule.
• The Y.B. Chauhan Committee made recommendations for its provisions.
• A Member could be disqualified:
  • If he or she voluntarily gives up the membership of a political party.
  • Joins any other political party after the election, votes, or abstains from any crucial voting contrary to the directive circulated by his/her respective political party.
  • A nominated member if he/she joins any political party after six months from the date he/she takes his seat.
  • If not less than two-thirds of the members of the legislature party have agreed to merge with other party they are exempted from disqualification.
• Chairman or the Speaker of the House has absolute power in deciding the cases about disqualification of members on the ground of defection.

Key Provisions of the Anti-defection Law (Tenth Schedule):

• Rule 2 establishes grounds for disqualification, including voluntary withdrawal from a political party or voting against party directives, with provisions for prior permission or condonation.
• Rule 3 outlines that there is no disqualification if members represent a faction resulting from a party split, a provision deleted by the 91st Amendment in 2003.
• Rules 4 and 5 exempt members from disqualification in case of a political party merger, allowing them to join the merged party or remain as a separate group.
• Rule 6 grants the Speaker or Chairman the authority to decide on a member’s disqualification, with their decision being final.
• Rule 8 empowers the Chairman or Speaker to create rules ensuring the implementation of the provisions outlined in the Tenth Schedule.

Courts on Judicial review of decisions of Speaker/Chairperson:

• Ravi S Naik v. Union of India (1994): The rules relating to anti-defection laws are merely procedural in nature and any violation of these, being a procedural irregularity, was immune from judicial scrutiny.
• Kihoto Hollohon v. Zachilhu and Others (1992): The Speaker, while deciding cases of defection of party members, acts as a tribunal, and his/her decisions are subject to the review power of the High Courts and the Supreme Court.
• Rajendra Singh Rana v. Swami Prasad Maurya (2007): Power of judicial review can be used when:
  • The Speaker fails to act on a complaint of defection,
  • The Speaker accepts the claim of splits or mergers without any finding and reason,
  • The Speaker fails to act as per the Tenth Schedule.
  • Ignorance of a petition for disqualification is not a mere irregularity on the part of the Speaker but amounts to a violation of a Constitutional duty.

Shortcomings in the Anti-Defection Law:

• Problem with Merger Criteria: Rule 4 allows exemption for a political party merger, which is based on the number of members rather than addressing the reason behind defection, potentially leading to misuse.
• Expulsions: The law is silent on party expulsions, as expelled members remain subject to party discipline without enjoying any rights, leaving a gap in the legislative framework.
• Voluntarily Giving up Membership: Rule 2(1)(a) lacks clarity on acts like working against the party’s interests, raising questions about whether such actions constitute voluntarily giving up party membership.
• Wide Powers to the Speaker: Rule 6 provides the Speaker with extensive and absolute powers, raising concerns about impartiality, so a neutral decision-making authority.
• Time for Speaker’s Decision: Absence of a time limit for the Speaker to decide on disqualification leads to delays, hindering a party’s ability to seek legal recourse promptly.
• Judicial Review Restrictions: Rule 7 limits the jurisdiction of the courts, barring judicial review on matters related to disqualification, challenging checks and balances.
• Absence of Individual Stand for Members: Rule 2 places party members under strict party discipline, limiting their freedom to dissent, and undermines the essence of representative democracy.

What is Whip?

• A whip may refer to both a written order to members of a party in the House to abide by a certain direction, and to a designated official of the party authorized to issue such a direction.
• The term is derived from the old British practice of “whipping in” lawmakers to follow the party line.
• In the parliamentary system, Whips are crucial for internal party organization within legislatures, managing and ensuring the efficient functioning of Legislatures.
• A whip may require that party members be present in the House for an important vote, or that they vote only in a particular way.
• In India, all parties can issue whips to their members.
• Parties appoint a senior member from among their House contingents to issue whips, called the chief whip, and he/ she is assisted by additional whips.
• Government Chief Whip constantly assesses the House’s dynamics, providing insights to the Leader of the House/Government, and facilitates informed decision-making.
• Opposition Whips supply vital information to their members, ensuring active participation in crucial discussions and votes.

Types of Whips:

• Whips can be of varying degrees of seriousness, and its importance can be inferred from the number of times an order is underlined.
• A one-line whip, underlined once, is usually issued to inform party members of a vote, and allows them to abstain in case they decide not to follow the party line.
• A two-line whip directs them to be present during the vote.
• A three-line whip is the strongest, employed on important occasions such as the second reading of a Bill or a no-confidence motion.
  • It places an obligation on members to toe the party line.

What can happen if a whip is defied?

• United Kingdom: An MP can lose membership of the party for defying the whip, but can keep her/ his House seat as an Independent.
• United States: The party whip gauges how many legislators support or oppose a Bill and persuade them to vote according to the party line on the issue.
• In India, rebelling against a three-line whip can put the membership of the House at risk.
• The Speaker/ Chairperson can disqualify such a member, but the only exception is when more than a third of legislators vote against a directive, effectively splitting the party.

Ref: Source