Why in news?
The recent defection of four Rajya Sabha MPs from the Telugu Desam Party to the ruling Bharatiya Janata Party, merely a month after simultaneous Assembly and Lok Sabha elections in Andhra Pradesh, can only be termed as political opportunism. The fact that these MPs merged with the BJP as a group helped them stay clear of the anti-defection law, which stipulates that a breakaway group constitute at least two-thirds of a legislative party’s strength and that it merge with another party
What is the anti-defection law?
Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. The anti-defection law sought to prevent such political defections which may be due to the reward of office or other similar considerations.
The Tenth Schedule was inserted in the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament and state assemblies.
Are there any exceptions under the law?
Yes, legislators may change their party without the risk of disqualification in certain circumstances. The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favor of the merger. In such a scenario, neither the members who decide to merge nor the ones who stay with the original party will face disqualification. Various expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission. This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries a remuneration, and has not been excluded in a list made by the legislature).
How has the law been interpreted by the Courts while deciding on related matters?
The Supreme Court has interpreted different provisions of the law. We discuss some of these below.
The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation
The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct. In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.
In the case of the two JD(U) MPs who were disqualified from Rajya Sabha on Monday, they were deemed to have ‘voluntarily given up their membership’ by engaging in anti-party activities which included criticizing the party on public forums on multiple occasions and attending rallies organized by opposition parties in Bihar.
The decision of the Presiding Officer is subject to judicial review
The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court. However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
In 2015, the Hyderabad High Court refused to intervene after hearing a petition which alleged that there had been delay by the Telangana Assembly Speaker in acting against a member under the anti-defection law.