Loopholes in the anti-defection law

The manner in which the BJP engineered a majority in Uttar Pradesh has lent urgency to the demands to amend the law to ban defections.

THE Anti-Defection Act, incorporated in the Tenth Schedule of the Constitution, has come into sharp focus ever since the Bharatiya Janata Party engineered a majority in the Uttar Pradesh Assembly with the help of defectors from other parties. That the law had loopholes that needed to be plugged was known for long, but the latest instance of its blatant abuse has lent urgency to the matter. Prime Minister I.K. Gujral convened a meeting of leaders of various parties for November 10. The leaders agreed on the need for amendments to the law; a background paper on the issue, to be prepared by the Lok Sabha Secretariat, will be discussed in the winter session of Parliament.

The law, as enacted in 1985 when Rajiv Gandhi was Prime Minister, empowers the Speaker or Chairman of the House concerned to decide on the question of disqualification of a member who defects. The defector invites disqualification if he or she voluntarily gives up membership of his party or abstains from voting in violation of any direction issued by the party. Independent members too invite disqualification if they join a political party.

The law also recognises splits in and mergers of parties. A split is recognised if at least one-third of the total membership of the legislature party defects. If more than two-thirds of the number of legislators of a party decide to join another party, it is recognised as a merger; in that case, the remaining legislators of the parent party will not be disqualified.

A note prepared by the Government recently states that the law has failed to prevent bulk defections. On the other hand, the law has been criticised on the grounds that it curtails the powers, privileges and immunities of members in regard to freedom of speech and freedom of action, including freedom of vote.

The Dinesh Goswami Committee on Electoral Reforms, appointed by the V.P. Singh Government in 1990, recommended that the disqualification provisions should be limited to cases where a member voluntarily gives up his membership of the party. The committee further said the disqualification provision should apply when a member violated the party whip in respect of a motion of vote of confidence or no-confidence or a money bill or a motion of vote of thanks to the President's address.

The committee recommended that the power to decide on disqualification under the Act should be given to the President or the Governor, who shall act on the advice of the Election Commission.

Former Lok Sabha Speaker Shivraj Patil told Frontline that the stipulation in the law on recognition of splits was introduced so as not to stifle legitimate dissent.

At a U.F. Steering Committee meeting on November 5, Parliamentary Affairs Minister Srikant Jena favoured an amendment which would rule out the dissolution of the Lok Sabha and the State Assemblies before the completion of their terms. In his opinion, such a move would discourage defections. But the Communist Party of India (Marxist) disagreed with this, saying that, on the contrary, such a move would induce MPs and MLAs to defect freely, as the threat of dissolution would no longer be there. The CPI(M) and the CPI favour automatic disqualification in case of defection, irrespective of the number of persons breaking away or violating a party whip.

A section of the Janata Dal is against amending the law at this point of time. This section, led by former Prime Minister H.D. Deve Gowda (who is reported to have some interest in the political developments in Karnataka where the ruling Janata Dal is troubled by dissensions), warned against amending the Constitution hastily to appease the Congress. Another section favoured a Congress proposal to make it mandatory for one-half of the legislature party to defect for a split to be recognised. This was not favoured by the Left.

CPI(M) Rajya Sabha member and member of the party's Polit Bureau S. Ramachandran Pillai said his party favoured an amendment to ensure that the decision on the question of disqualification of alleged defectors was taken within a reasonable time. He said the CPI(M) would seek an amendment to provide for the involvement of the Election Commission in adjudicating the cases of disqualification arising out of defection. Ramachandran Pillai said: "The Speaker can be removed by a majority of the members of the House; hence he cannot be impartial."

According to a senior BJP leader, the party supports the position that all defectors, irrespective of their strength, should lose their seats, but it has opted to be "pragmatic" as long as the law exists.

The first momentous ruling under the Act was passed in the Lok Sabha in November 1990 when Speaker Rabi Ray declared 28 members of the Janata Dal "unattached" after they were expelled from the party by the Janata Dal leader in Parliament, V.P. Singh. The law does not provide for the recognition of some members as "unattached", but neither does it provide for disqualification of members who have been expelled from a party.

Subsequently, Ray recognised the Janata Dal(S) headed by Chandra Shekhar, which consisted of 54 Lok Sabha members of the Janata Dal Parliamentary Party. These 54 included the 28 "unattached" members. Ray, however, disqualified seven members of the Janata Dal, including V.C. Shukla and four others who were then Ministers in the Chandra Shekhar Government, for defecting to the Janata Dal(S). Ray thus interpreted the law to establish that a split was a one-time affair.

Shivraj Patil took quite some time to pronounce his verdict on the splits that occurred in the Janata Dal when he was Speaker. In the case of the first split that occurred when Ajit Singh and 20 other MPs broke away from the Janata Dal, he took nine months to pronounce his judgment. In the second instance, when seven members quit the Ajit Singh faction, he took two years to recognise the split.

The law also requires that a split in the legislature party be a consequence of the split in the party's organisational wing. Observers, however, note that it is difficult for Speakers to judge whether a split has taken place in the party's organisation.