The idea of bringing in an anti-defection law in India had been brewing for so long before it was ultimately enacted in the first two months of 1985, soon after Rajiv Gandhi became the prime minister of the country with a massive mandate. All governments that followed did not have a majority of their own and any proposal for enactment of an anti-defection law through an amendment of the Constitution by those governments would presumably have met with the same fate the Women's Reservation Bill is currently facing. Thus, if there had been no Rajiv Gandhi and his government with an unparalleled massive majority, there would not have been any anti-defection law in the country.
The Constitution (52nd Amendment) Act 1985, otherwise known as the anti-defection law, is deeply rooted in history. Since 1967, proposals were being mooted in one form or the other to curb defections. Lok Sabha took formal notice of defections when P. Venkatasubbaiah, a private member, moved a resolution for constituting a committee to study and report on defections. The resolution was moved in the fourth Lok Sabha on August 11, 1967 and discussed on November 11, 1967 and December 8, 1967. The resolution was adopted by Lok Sabha with an amendment for verbal modification moved by Madhu Limaye.
Rajiv Gandhi, speaking in Rajya Sabha on the bill on January 31, 1985, devoted the law to the memory of the Mahatma: "Shri Chairman, sir, yesterday, the 30th January, we had all gone to Gandhiji's Samadhi to pay our respects and homage. On Gandhiji's Samadhi in very large letters are written what Gandhiji called seven social steps. The first step is against politics without principles and it was only appropriate that we took up this bill in the Lok Sabha on the same day."
The political history of the country, particularly in smaller states, bears testimony to the fact that the anti-defection law has brought more instability than stability. Consider the hindrance the anti-defection law had caused to government formation in Bihar thereby compelling another election within six months in 2005.
The biggest tragedy the anti-defection law had caused to the Indian political scenario was that it effectively halted the evolution of a two-party system and in its place brought about the coalition politics. The talk of Third Front strongly started gaining momentum during the eighth Lok Sabha. Instead of Indian polity graduating into a two-party system of the puritan version, it has, over the period of the past two decades, settled for a system of two coalition fronts through the transitory route of the Third Front. Though the slogan of Third Front refuses to die, it appears it will be difficult to resurrect any Third Front in view of the effective positioning of two coalition fronts based on two intensely polarised ideology and programmes, as distinctly identifiable choices before the electorate.
However, there were several loopholes in the act as defections numbering more than one-third of the party's
strength were considered to be legal. It also provided for the disqualification of individual members defecting from the party through which the member was elected. Even here, the law is open to considerable interpretation, and in some state legislatures the bias of the Speaker leads to confusion, often resulting in litigation.
The first challenge to the anti-defection law was made in the Punjab and Haryana high court in Parkash Singh Badal and others vs Union of India and others (AIR 1987 Punjab & Haryana 263). One of the grounds on which the law was challenged was that paragraph 2(b) of the Tenth Schedule to the Constitution violated Article 105 of the Constitution, wherein the court held: "So far as the right of a member under Article 105 is concerned, it is not an absolute one and has been made subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament. The framers of the Constitution, therefore, never intended to confer any absolute right of freedom of speech on a member of the Parliament and the same can be regulated or curtailed by making any constitutional provision, such as the 52nd Amendment. The provisions of para 2(b) cannot, therefore, be termed as violative of the provisions of Article 105 of the Constitution. (Para 28)."
The Constitution (32nd Amendment) Bill 1973 and the Constitution (48th Amendment) Bill 1978 had provisions for decision-making by the president and governors of states in relation to questions on disqualification on ground of defection.
The Constitution (52nd Amendment) Bill 1985 suddenly introduced the provision that questions of disqualification on ground of defection shall be decided by chairmen and speakers of the legislative bodies. The intention was to have speedier adjudicative processes under the Tenth Schedule. This provision was a subject matter of serious debate in both Houses of Parliament when the bill was being passed.
The 91st Amendment to the Constitution was enacted in 2003 to tighten the anti-defection provisions of the Tenth Schedule, enacted earlier in 1985. This amendment makes it mandatory for all those switching political sides — whether singly or in groups — to resign their legislative membership. They now have to seek re-election if they defect and cannot continue in office by engineering a "split" of one-third of members, or in the guise of a "continuing split of a party". The amendment also bars legislators from holding, post-defection, any office of profit. This amendment has thus made defections virtually impossible and is an important step forward in cleansing politics. Irony of the situation today is that the events have nullified the real intent of the dream of Rajiv Gandhi.
There have been instances wherein after the declaration of election results, winning candidates have resigned from their membership of the House as well as the party from which they got elected. Immediately, they have joined the political party which has formed the government and have again contested from that political party, which appears to be a fraud and goes against the spirit of the democracy and 52nd constitutional amendment. The ingenious human brain invented innovative ideas to obtain resignations and, in effect, made the anti-defection law a cover to hide their heinous crime. Hence, the constitutional pundits need to revisit the issue to combat the menace of corruption and defection which has eroded the values of democracy.
The question whether the presiding officer should or should not decide disqualification has become a matter of debate as appreciating the fact that several chairman and speakers would not be able to extricate themselves from petty political considerations which may colour their exercises under the Tenth Schedule.
The Administrative Reforms Commission, headed by me, in its fifth report ("Ethics in Governance") has recommended: "The issue of disqualification of members on grounds of defection should be decided by the president/governor on the advice of the Election Commission."
The Election Commission has also endorsed this view. Such an amendment to the law seems to be unfortunately necessary in the light of the long delays seen in some recent cases of obvious defection and subversion of the core principle of the philosophy of the anti-defection law.
The writer is Union law minister
