A new perspective on the anti-defection law

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A new perspective on  the anti-defection law

Venkaiah Naidu's decision to disqualify Sharad Yadav and Ali Anwar from the Upper House has added a new dimension to the anti-defection law while reinforcing the original intent of the lawmakers

The decision of Venkaiah Naidu, the Vice President of India and Chairman of the Rajya Sabha, to disqualify two members of his House — Sharad Yadav and Ali Anwar Ansari — and the reasoning provided by him has added a new dimension to the anti-defection law while strengthening its provisions and reinforcing the original intent of the law makers.

This decision of the Chairman will have a significant bearing on how presiding officers will henceforth consider what constitutes “voluntarily giving up” membership of a House. It will also, hopefully, push presiding officers to complete inquiries under this Act within three months and stop needless procrastination.

The issue of defection of these two members arose following the decision of Bihar Chief Minister Nitish Kumar to break away from a pre-poll alliance known as the mahagathbandhan with some parties, including Lalu Yadav’s Rashtriya Janata Dal, to strike an alliance with the Bharatiya Janata Party. Both Yadav and Ansari opposed Kumar’s decision, joined forces with Lalu Yadav and publicly denounced the new alignment. However, Kumar commanded the support of an overwhelming majority of the law makers and office-bearers of his party — the Janata Dal(United) or the JD(U). Consequently, the JD(U) lost no time in dislodging Yadav from the post of leader of the JD(U) in the Upper House and initiated proceedings against Yadav and Ansari.

Under paragraph 2(1) of the anti-defection law, which is placed in the Tenth Schedule of the Constitution, a member can be disqualified if he “voluntarily gives up” the membership of the party to which he belongs or when he votes or abstains from voting in the House, contrary to the directions issued by the political party to which he belongs. The critical question that arose in these two cases was whether the conduct of the two MPs amounted to them “voluntarily given up” the membership of their party — the JD(U). 

The two MPs argued that they had not voluntarily given up membership of the party. In fact, it was Kumar who had done so by violating the aims and objects laid down in the party constitution and “by acting against the principles on which was party was funded”. They also contended that the decision of Kumar to break away from themahagathbandhan and to align himself with the Bharatiya Janata Party had resulted in a split in the JD(U) and that their faction commanded majority support after the split. 

The MPs tried to argue that the sanctity of a pre-poll alliance cannot be violated. But their attempt to equate the mahagathbandhan to a political party does not hold water. In fact, the Second Administrative Reforms Commission has recommended that the anti-defection law be amended to protect the sanctity of pre-poll alliances. It has said that coalitions are now the norm and there is need to legally bind pre-poll coalition partners to their alliances.

However, Parliament has not extended the anti-defection law to pre-poll alliances. So, as the law stands today, it revolves round just political parties. The National Commission to Review the Working of the Constitution also emphasised the need for legislators defecting from one party to another to contest elections afresh.

The Chairman set aside their objections to the party, electing a new leader in the Rajya Sabha. The majority of the MPs belonging to the party had chosen a new leader. The Chairman said in this context, “I have to go by the dictum that in a democracy, it is the rule of the majority and the voice of the majority will have to be accepted.”

In this case, he said the two MPs had failed to provide evidence that their group commanded majority in the legislature party. Further, the public denouncement of Kumar for withdrawing from the mahagathbandhan by the two MPs and their decision to share public platforms with the JD(U)’s rivals “are enough to establish beyond doubt” that they had indulged in anti-party activities.

The central point to be determined in this case is whether the two MPs had “voluntarily given up” membership of the party. The Chairman relied on two significant judgements of the Supreme Court in support of the contention that these words had a much wider connotation than just the formal resignation from a party. In Ram Naik Vs Union of India, the Supreme Court observed that the words “voluntarily given up his membership” are not synonymous with resignation and have a wider connotation. Even in the absence of a formal resignation, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.

In another case, the Supreme Court observed that “the act of voluntarily giving up the membership of the political party may be either express or implied”. Prior to the Supreme Court’s judgement in the Ram Naik case, the Committee of Privileges of the Eighth Lok Sabha examined the question as to what constituted “voluntarily giving up membership”.

The committee felt that one should not place a narrow interpretation of the on the constitutional provision as it would negate the very objective which Parliament had in mind. The meaning of these words, it said, must be interpreted according to the spirit in which they have been used.

“The intention of the law-makers is quite clear; that it is not only the overt act of tendering resignation but also by his conduct that a member may give up the membership of his political party. The committee are of the view that if a member by his conduct makes it manifestly clear that he is not bound by party discipline and is prepared even to wreck it by his conduct, he should be prepared to pay the price of losing his seat ….”.

Naidu also took the opportunity to emphasise the need for timely disposal of petitions relating to anti-defection. He referred to the widespread criticism of some presiding officers for inordinate delay in deciding such cases, thereby allowing defectors to continue as legislators. The Supreme court too had not taken kindly to such delays as in the Speaker, Haryana Vidhan Sabha vs Kuldeep Bishnoi & Ors, the Speaker took around four years to decide on a petition seeking disqualification. The Chairman said all such cases should be decided within three months. Only then can the evil of defections be effectively thwarted.

(The writer is Chairman, Prasar Bharati)

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