Relevance: GS-2: Indian Constitution - features, amendments, significant provisions and basic structure.

Key phrases: Anti-Defection Law, Aaya Ram Gaya Ram, 52nd C. Amendment Act, two-third merger provision, Article 164(1B), Karnataka MLAs case(2019), Keisham Meghachandra Singh vs Hon’ble Speaker 2020, Kihoto Hollohan case, Speakers, Adjudicatory power, Social and political evil.

Why in News?

• In the wake of the political crisis unfolding in Maharashtra, certain remarks made by the Supreme Court regarding the emerging trend of poaching of legislators and engineering of rebellion to destabilize elected governments assume relevance.

Historical background of defection:

• Defection in politics predates Gaya Lal -- the Haryana MLA who switched party thrice in a day in 1967, after which the phrase "Aaya Ram Gaya Ram" became popular in Indian politics.
• Due to frequent defections hampers good governance and promotes open corruption in the form of horse trading.
• Political parties agreed that there was a need for an anti-defection law that would seek to prevent such political defections.
• Rajiv Gandhi, the then Prime Minister of India(1984-1989), proposed a bill to remove the evils of defection.
• The 10th Schedule of the Indian Constitution popularly referred to as the ‘Anti-Defection Law’ was inserted by the 52nd Amendment of the Indian Constitution in 1985.

Existing Loopholes in Anti-Defection Law:

• Merger issue:
  • The two-third merger provision allows for clandestine corruption where by means fair or foul, to either topple governments or to strengthen a razor-thin majority of the party in power.
  • This makes the entire provision unworkable and unconstitutional.
  • Such misuse is observed in Manipur, Goa, Madhya Pradesh, Uttarakhand and other jurisdictions.
• Speaker’s Discretion:
  • There are many situations where, even though the provisions of merger ex-facie did not happen, the speaker of the assembly keeps the proceedings prolonged so that the term of the assembly comes to an end before the proceedings under the Tenth Schedule against those ex-facie defectors have been concluded.
  • The seeming political bias of the speakers acting as tribunals is apparent from how disqualification petitions are dealt with .
  • In Manipur, for instance, seven Congress MLAs joined the BJP shortly after the 2017 Assembly election and one of them became a Minister too. However, the Speaker did not act on petitions to disqualify the Minister for over two years.
• Issues with Article 164(1B):
  • It stipulates that a member of the legislative assembly who is disqualified from being a member of the house shall also be disqualified to be a minister from the date of his disqualification.
  • Shortcoming is that law allows a legislator who is disqualified on account of defection to re-contest elections even during the term of the ongoing assembly.
  • Then such a disqualification has no real effect. It is clearly a provision that surpasses all canons of morality.

Supreme court judgments on defection:

• Karnataka MLAs case(2019): The Court held that:
  • The MLAs can also exercise the option of resigning, and the Speaker has no discretion to reject the resignation.
  • The Speaker cannot inquire into the motive of the resignation and cannot reject the same saying that it is made out of political pressure.
  • The Speaker can only examine if the resignation was "genuine" and "voluntary". "Genuine" means if the resignation letter is authentic and not forged.
  • The Court further held that "when a member is resigning on political pressure, he is still voluntarily doing so".
  • Court expressing concerns about the trend of "horse trading", which denied citizens stable governments and called for strengthening the tenth schedule.
  • Speaker has no power to disqualify a defected member till the end of the term of the assembly.
• Keisham Meghachandra Singh vs Hon’ble Speaker 2020:
  • The Court noted that while the Constitution or any other statute does not prescribe a strict time period, a Speaker cannot sit on a disqualification petition indefinitely. Such a petition would need to be decided within a reasonable time.
  • The Court, however, went one step further in this instance, and defined what it meant by reasonable time was, in the absence of any exceptional circumstances, a period of three months for the Speaker to decide on the petition.
• Rajendra Singh Rana vs Swami Prasad Maurya Case of 2007:
  • Supreme Court in this case stated that if the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. He is also considered to be in violation of his constitutional duties.

Way forward:

• 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.
• If defection is a "social and political evil", then there must be a disqualification for a particular term of years, as prescribed in the Representation of the Peoples Act for corrupt electoral practices or conviction in the specified offences.

Source: Live-Law

Mains Question:

Q. “The crisis in Maharashtra shows the anti-defection law to be ineffective, even counterproductive”. Examine the Statement.