Time to plug loopholes in anti-defection law

KK Paul
Former Governor

The political developments in Maharashtra have turned the spotlight on the Anti-Defection Act. Enacted in 1985, this Act was considered important enough to be included in the Constitution and was appended as its Tenth Schedule. Ever since its enactment, some of the manoeuvres concerning MLAs have brought the Speaker’s role into sharper focus. A Speaker occupies a pivotal position, being the guardian of rights and privileges of the House and at the same time, he is also responsible for administering the Act. It is the Speaker who has to decide on defections, splits or mergers. This also explains the widespread clamour amongst the coalition partners to first secure the office of the Speaker for their own party. Over a period of time, some of the occupants of this chair have hardly done justice to the exalted office they occupied. This compelled the Supreme Court, while delivering a judgment, to ask Parliament, “Have a rethink whether disqualification petitions ought to be entrusted to a Speaker, as a quasi-judicial authority, when such a Speaker continues to belong to a political party de jure or de facto.”

Exploiting this loophole, the Speaker can allow a defector to enjoy fruits of defection, besides giving reprieve to the party in power.

In this context, the prophetic words of BR Ambedkar at the time of dedication of the Constitution to the people, on the last day of the Constituent Assembly, are still relevant. He had said, “Howsoever good a Constitution may be, it is sure to turn out bad if the people who work it are a bad lot. On the other hand, howsoever bad it may be, if the people who work on it are good, it may still turn out to be good.” The current state of proceedings in some of our Assemblies may be a manifestation of these prophetic words.

At times, the partisan role played by some Speakers due to a conflict of interest is very visible. On several occasions, their bias in favour of a political party, has led to malpractices, violations of the Constitution and prolonged political instability in a state, impacting administration in general. A major weakness of the Act is that no time limit has been prescribed for the Speaker to take a decision. Exploiting this loophole and not deciding on the petition, the Speaker can allow a defector to enjoy the fruits of defection, besides giving a reprieve to the party in power. In one such case from Manipur, the Speaker had not decided the petition for over two years, where upon the Supreme Court intervened and passed an order removing the defector from the Cabinet and also barring his entry to the Assembly for a brief period.

While the law is the same, its application keeps changing from time to time and from one Speaker to the other. In the Manipur case, the Speaker had kept sitting over the petition while in another case, the Speaker decided the matter in a great hurry without following the procedures, leading to an adverse comment of “hot haste” from the Supreme Court. In yet another case, a Speaker who happened to be from a different political party, offered to review the order of the previous Speaker, which was against the letter and spirit of the apex court judgment, according to which the Speaker had no power of review, once the order was issued. Such orders could be reviewed only by a judicial authority.

Kihoto Hollohan vs Zachillhu and others was the first case decided by the Supreme Court under the Anti-Defection Act in which high standards were set for the Speaker to enable him to take far-reaching decisions for the functioning of the parliamentary democracy. While a section of this law was declared ultra vires, the judges, in minority, perhaps could perceptively foresee the future state of affairs and went on to say, “Giving the power of adjudication to the Speaker was against the basic structure of the Constitution, being against the separation of powers between the legislature, judiciary and the executive.” It was contemplated that such disputes should be referred to an independent authority. Later, this view was supported by the former CJI Venkatachaliah, while chairing the commission to review the working of the Constitution. On the other hand, while deciding this very case as the CJI, he was on the other side. Clearly, he had changed his mind, having observed some unsavoury goings-on in state Assemblies.

The Speaker of the Lok Sabha as well as of the state legislatures are elected on tickets and symbols of various political parties. Unlike the House of Commons, from where our Parliament has drawn inspiration, our Speakers continue to retain links with their parent parties. Such retention of affiliation does not impact their routine working but is quite often reflected in their decisions on the anti-defection law.

A way out of such a situation has been provided for within the law itself. There is an exemption clause in Section 5 of the anti-defection law, whereby the Speakers can voluntarily give up their party affiliation, without attracting the penalties, but embarrassingly, to date, not a single presiding officer of the House has ever made use of this provision. Another very interesting suggestion came in from the conference of presiding officers held as early as 1951. According to this, to enable the Speaker to stay neutral, a convention was to be established reserving the constituency of the Speaker so that in the subsequent elections, he could be returned unopposed, and further he should not take part in party politics. Even before Independence, Vithalbhai Patel had set an example by following this principle in letter and spirit.

When enacted, this law was expected to prevent the malaise of defections, but loopholes have been found to circumvent its provisions as the law has been found to be somewhat pliant towards group defectors. While individual defectors face penalties, group defections with a minimum number can be recognised as splits or mergers. In case the numbers do not match, some members resign to bring down the strength of the House. For such situations, it was suggested that even if the member after defection gets elected from a different party, he should be denied the benefit of office for the remaining duration of the House.

The anti-defection law was amended in 2003, but it has singularly failed to meet its objectives. Instead, it is often being used to regularise defections. Considering the overall situation, we have no further time to lose. After a wider public debate, a comprehensive change in the law is the need of the hour.