In News:

• Maharashtra is in the throes of a constitutional crisis. All indications are that there is a planned mass defection underway.

What’s in Today’s Article:

• Anti-Defection Law – About, key features, exemptions, disputes, weakening of law, Different SC rulings

Anti-Defection Law

• The Tenth Schedule of the Constitution is commonly known as the anti-defection law.
• It 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.
• The law provides for the Presiding Officer of the legislature to disqualify any defector on a petition by another member.

Key features of the law

• The law contemplates two kinds of defection:
  • by a member voluntarily giving up membership of the party on whose symbol he got elected
  • by a member violating a direction (whip) issued by his party to vote in a particular way or to abstain from voting.
• On both the instances, the legislator shall be disqualified as per the law.

Exemptions

• As per the law, a member of a House shall not be disqualified if “his original political party merges with another political party.
• This merger, in turn, only holds if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.
  • Hence, if two-thirds of the MLAs/MPs agree to defy the party leadership, they legally can. The Anti-Defection Law will not apply to them.

Defection law: source of dispute and litigation

• 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.
  • g., an MLA or MP attending public rallies for a rival party could be held to have “voluntarily given up his membership” and be charged with defection.

Weakening of the law

• Defection through resignation
  • Politicians have found ways to circumvent the law.
  • In one ingenious solution, MLAs have started resigning their seats in order to bring down the total strength of the House.
  • As the half-way mark of the House falls, the party that is aiming to replace the government has a better shot of forming the majority.
    • In 2019, the Congress-Janata Dal (Secular) coalition government headed by Chief Minister HD Kumaraswamy was brought down using this strategy.
    • Later, the Supreme Court endorsed this strategy as legal, further weakening the already weak Anti-Defection Law.
    • The SC ultimately ruled that the Speaker has the authority to verify if a resignation is voluntary and genuine.
    • But it is constitutionally impermissible for the Speaker to take into account extraneous factors while considering the resignation.
    • In other words, once it is clear that a member is resigning out of free will, the Speaker is bound to accept it.
• Dubious role of speaker
  • Speakers also delay a decision on disqualifying a member under the law.
  • While the Anti-Defection Law is clear that a member should be disqualified on defection, it has no mention of a timeline.
    • In 2020, however, the SC prescribed a maximum of three months for a presiding officer to decide on an anti-defection law petition.
  • Speakers have utilised these lacunae to award themselves a pocket veto on the process.

SC rulings on this law

• Anti-defection law proceedings under judicial review
  • In 1992, a five-judge constitutional bench of the Supreme Court said that the anti-defection law proceedings before the speaker are akin to a tribunal.
  • Hence, it can be placed under judicial review.
• Ravi Naik vs. UoI case (1994)
  • The Supreme Court, in Ravi Naik vs. UoI case (1994), has interpreted the phrase ‘voluntarily gives up his membership'. It says: “The words ‘voluntarily gives up his membership' are not synonymous with ‘resignation' and have a wider connotation.
  • Even in absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.
  • The act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government itself would amount to an act of voluntarily giving up membership of the party on whose ticket the said members had got elected. This was again reiterated by Supreme Court in Rajendra Singh Rana vs. Swami Prasad Maurya case of 2007.
  • Even after expulsion from the party, an MP must abide by the party whip to prevent disqualification from the house.
• Balchandra L. Jarkiholi Vs. B.S. Yeddyurappa 2010
  • The Supreme Court in 2010 Karnataka case made it clear that independent MLAs joining the Ministry in a coalition govt., without joining the ruling party, will not sacrifice their independent identity. Hence joining Council of Ministers doesn’t point to such eventuality.
• SC highlights taking away disqualification power from Speakers
  • In January 2020, the Supreme Court asked Parliament to amend the Constitution to strip Legislative Assembly Speakers of their exclusive power to decide whether legislators should be disqualified or not under the anti-defection law.
  • This was the second time the court has highlighted the issue of taking away the disqualification power under the Tenth Schedule from Speakers.
• SC removed Manipur minister
  • In March 2020, the Supreme Court removed Manipur minister Thounaojam Shyamkumar Singh from the state cabinet and restrained him from entering the legislative assembly till further orders.
  • Disqualification petitions against the said minister were pending before the speaker since 2017.