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Legislation

The Anti-Defection Law Explained

Vibhor Relhan - December 6, 2017

On Monday, December 4, the Chairman of Rajya Sabha disqualified two Members of Parliament (MPs) from the House under the Tenth Schedule of the Constitution (better known as the anti-defection law) for having defected from their party.[1] These members were elected on a Janata Dal (United) ticket.  The Madras High Court is also hearing petitions filed by 18 MLAs who were disqualified by the Speaker of the Tamil Nadu Assembly in September 2017 under the anti-defection law.  Allegations of legislators defecting in violation of the law have been made in several other states including Andhra Pradesh, Arunachal Pradesh, Goa, Manipur, Nagaland, Telangana and Uttarakhand in recent years.[2]  In this context, we explain the anti-defection law.

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 reward of office or other similar considerations.[3]

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 favour 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.[4] 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.[5] In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.[6]

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 organised by opposition parties in Bihar.[7]

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.[8] 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.[9]

Is there a time limit within which the Presiding Officer has to decide?

The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea. Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.[10] In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House. There have also been instances where opposition members have been appointed ministers in the government while still retaining the membership of their original parties in the legislature.[11]

In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken away in small groups gradually to join the ruling party. In some of these cases, more than 2/3rd of the opposition has defected to the ruling party.

In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller groups.  However, it is not clear if they will still face disqualification if the Presiding Officer makes a decision after more than 2/3rd of the opposition has defected to the ruling party. The Telangana Speaker in March 2016 allowed the merger of the TDP Legislature Party in Telangana with the ruling TRS, citing that in total, 80% of the TDP MLAs (12 out of 15) had joined the TRS at the time of taking the decision.[12]

In Andhra Pradesh, legislators of the main opposition party recently boycotted the entire 12-day assembly session.  This boycott was in protest against the delay of over 18 months in action being taken against legislators of their party who have allegedly defected to the ruling party.[13] The Vice President, in his recent order disqualifying two JD(U) members stated that all such petitions should be decided by the Presiding Officers within a period of around three months.

Does the anti-defection law affect the ability of legislators to make decisions?

The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.

Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue. Several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions).[14]

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[1] Parliamentary Bulletin-II, December 4, 2017, http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066 and http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57067.

[2] MLA Defection Politics Not New, Firstpost, March 13, 2017, http://www.firstpost.com/politics/bjp-forms-govt-in-goa-manipur-mla-defection-politics-not-new-telangana-ap-perfected-it-3331872.html.

[3] The Constitution (52nd Amendment) Act, 1985, http://indiacode.nic.in/coiweb/amend/amend52.htm.

[4] Report of the Committee on Electoral Reforms, 1990, http://lawmin.nic.in/ld/erreports/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdfand the National Commission to review the working of the Constitution (NCRWC), 2002, http://lawmin.nic.in/ncrwc/ncrwcreport.htm.

[5] Ravi Naik vs Union of India, 1994, https://indiankanoon.org/doc/554446/.

[6] G.Viswanathan Vs. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras& Another, 1996, https://indiankanoon.org/doc/1093980/  and Rajendra Singh Rana vs. Swami Prasad Maurya and Others, 2007, https://indiankanoon.org/doc/1620629/ and Parliamentary Bulletin-II, December 4, 2017, http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066.

[7] Parliamentary Bulletin-II, December 4, 2017, http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066.

[8] Kihoto Hollohon vs. Zachilhu and Others, 1992, https://indiankanoon.org/doc/1686885/.

[9] Sabotage of Anti-Defection Law in Telangana, 2015, https://www.epw.in/journal/2015/50/commentary/sabotage-anti-defection-law-telangana.html.

[10] Speaker, Haryana Vidhan Sabha Vs Kuldeep Bishnoi & Ors., 2012, https://indiankanoon.org/doc/45034065/  and Mayawati Vs Markandeya Chand & Ors., 1998, https://indiankanoon.org/doc/1801522/.

[11] Anti-Defecton Law Ignored, November 30, 2017, http://www.news18.com/news/politics/anti-defection-law-ignored-as-mlas-defect-to-tdp-trs-in-andhra-pradesh-and-telangana-1591319.htmland It’s official Minister Talasani is still a TDP Member, March 27, 2015, http://www.thehansindia.com/posts/index/Telangana/2015-03-27/Its-Official-Minister-Talasani-is-still-a-TDP-member/140135.

[12] Telangana Legislative Assembly Bulletin, March 10, 2016, http://www.telanganalegislature.org.in/documents/10656/19317/Assembly+Buletin.PDF/a0d4bb52-9acf-494f-80e7-3a16e3480460;  12 TDP MLAs merged with TRS, March 11, 2016, http://www.thehindu.com/news/national/telangana/12-tdp-mlas-merged-with-trs/article8341018.ece.

[13] The line TD leaders dare not cross, December 4, http://www.thehindu.com/todays-paper/tp-national/tp-andhrapradesh/the-line-td-leaders-dare-not-cross/article21257521.ece

[14] Report of the National Commission to review the working of the Constitution, 2002, http://lawmin.nic.in/ncrwc/ncrwcreport.htm, Report of the Committee on electoral reforms, 1990, http://lawmin.nic.in/ld/erreports/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf and Law Commission (170th report), 1999, http://www.lawcommissionofindia.nic.in/lc170.htm.

Parliament

President’s Address 2014 to 2017: Plan vs. Performance

Roopal Suhag - February 6, 2017

Budget Session 2017 commenced with the President, Pranab Mukherjee, addressing a joint sitting of Parliament on January 31, 2017.  This address by the President highlights the legislative and policy activities and achievements of the government in the previous year.  In addition, it gives a broad indication of the government’s agenda for the year ahead.  The address is followed by a motion of thanks that is moved in each House by ruling party MPs.  This is followed by a discussion on the address and concludes with the Prime Minister replying to the points raised during the discussion.

In the lower house, the motion of thanks has begun today.  It began in the upper house on February 2, 2017.  Lok Sabha and Rajya Sabha have allocated two and three days for the discussion, respectively.  In this context, we present an analysis of the salient points of the agenda proposed in the President’s address from 2014 to 2017 and the current status of its implementation.

Policy priority stated in the President’s address (2014 to 2017) Current Status 
Macroeconomy
  • GDP growth has made India the world’s fastest growing economies, among large economies.
  • Foreign exchange reserves have been at an all-time high, and inflation, current account deficit and fiscal deficit have consistently reduced since 2014.
  • The GDP is estimated to grow at 7.1% in 2016-17, compared to its growth of 7.9% in 2015-16.[i]
  • The Economic Survey 2016-17 has stated the GDP growth to be between 6.75% and 7.5% in 2017-18.[ii]
  • The average CPI inflation declined from 5.6% in December 2015 to 3.4% in December 2016.[iii]  In the same period, food inflation also decreased from 6.4% from 1.4%.3
  • Current account deficit decreased from USD 14.7 billion in 2015-16 (April-September) to USD 3.7 billion in the corresponding period in 2016-17.[iv]
  • Foreign exchange reserves presently stand at Rs 24,54,950 crore, an increase of Rs 1,02,130 crore from 2016.[v]
Poverty eradication and financial inclusion
  • The Pradhan Mantri Jan Dhan Yojana was launched to provide universal access to banking facilities.  The coverage under the scheme is close to 100%.
  • The proposed Postal Payment Bank of India will further boost financial inclusion.
  • Presently, around 27 crore accounts have been opened under the scheme.[vi]  However, out of these, 25% of the accounts are zero balance accounts.6
  • The Indian Postal Payments Bank has started.[vii]  The postal network with over 1.5 lakh post offices will also function as postal banks.7
Agriculture and water security
  • Pradhan Mantri Fasal Bima Yojana has expanded risk-coverage, doubled the sum insured, and facilitated low premium for farmers.
  • The government is also committed to implementation of Interlinking of Rivers Project.
  • Pradhan Mantri Fasal Bima Yojana has been implemented by 21 states.[viii]  3.66 crore farmers have been covered under the scheme, out of a total of 11 crore farmers in the country.[ix]
  • In April 2015, a Task Force was constituted on the Interlinking of Rivers Project.[x]  The Task Force is yet to submit its report.  The sub-Committee on restructuring the National Water Development Agency in September 2015 had recommended that a National Interlinking of Rivers Authority should be created through an Act of Parliament.[xi]  So far, further steps have not been taken in this regard.
Energy
  • The Electricity (Amendment) Bill, 2014 has been introduced to bring reforms in the electricity sector.
  • Renewable energy capacity will manifold to 175 GW by 2022.
  • The Electricity (Amendment) Bill, 2014 is pending in the Parliament.  The Standing Committee submitted its report on the Bill in May, 2015.[xii]
  • As of December 2016, 51 GW of renewable energy has been generated in the country.[xiii]  However, in 2016-17, only 26% of the target of the generation of renewable energy could be achieved.13
Governance and legal reforms
  • Close to 1,800 obsolete legislation are at various stages of repeal.
  • My government is committed to providing 33% reservation to women in the Parliament and state Legislative Assemblies.
  • Amendments to the Prevention of Corruption Act are also on the anvil.
  • 758 Appropriation Acts and 295 laws have been repealed.[xiv],[xv]
  • No Bill in relation to providing 33% reservation to women has been introduced yet.
  • The Prevention of Corruption (Amendment) Bill, 2013, is presently pending in Parliament.  The Standing Committee and Rajya Sabha Select Committee have submitted their reports on the Bill.
Defence
  • One Rank One Pension scheme will be implemented.
  • Defence procurement procedure has been streamlined with a focus on indigenously designed, developed and manufactured weapon systems.
  • Recognising the importance of coastal security, the government will set up a National Maritime Authority.
  • The government will also build a National War Memorial to honour the gallantry of our soldiers.
  • The implementation of One Rank One Pension scheme has been initiated.[xvi]  In 2016-17, Rs 12, 456 crore was allocated to the scheme.[xvii]
  • The Defence Procurement Policy 2016 added an additional category “Buy (Indian-Indigenously Designed, Developed and Manufactured) as the most preferred way of capital acquisition.[xviii]
  • The National Maritime Authority and National War Memorial are yet to be established.
Environment
  • Funds will be released to states and union territories for aggressive afforestation.
  • To conserve the Himalayan ecology, a National Mission on Himalayas will be launched.
  • Target for emission standards for motor vehicles has been drastically brought forward to achieve Bharat Stage –VI norm by 2021.
  • Parliament passed the Compensatory Afforestation Fund Bill, 2015 in July 2016.[xix]  The Bill establishes the National Compensatory Afforestation Fund and a State Compensatory Afforestation Fund for each state.  These Funds will be primarily spent on afforestation.
  • The National Mission on Himalayas is yet to be launched.
  • To make Bharat Stage-VI norms applicable by April 1, 2020, a draft notification was released in February 2016.[xx]
Rural and Urban Development
  • To develop 300 rural growth clusters across the country, Shyama Prasad Mukherji Rurban Mission has also been launched.
  • Mission Antyodaya, an intensive participatory planning exercise has been initiated.
  • Annual action plan for 500 cities with an outlay of Rs 50,000 crore has been approved.
  • To implement the Rurban mission, Rs 5,142 crore has been allocated for the period from 2015-16 to 2019-20.[xxi]
  • Under Mission Antyodaya, the release of funds has been lower than the allocated amount in the last three years, from 2014-15 to 2016-17.[xxii]
  • Under the Smart Cities Mission, Rs 4,572 has been released to 98 cities during the years 2015-16 and 2016-17.[xxiii]
Health
  • My government will formulate a New Health Policy and roll out a National Health Assurance Mission.

 

  • Pradhan Mantri Bharatiya Jan Aushadi Pariyojana has been launched to ensure that the poor have access to quality medicines at affordable prices.
  • A group was constituted in July 2014 to prepare a comprehensive background paper for the roll out of the National Health Assurance Mission.[xxiv]  Further progress in this regard has not been made.
  • The draft National Health Policy was released in December 2014 for public comments and suggestions.[xxv]  The Policy has not been finalised yet.
  • Under the Pradhan Mantri Bharatiya Jan Aushadi Pariyojana, Pradhan Mantri Bhartiya Janaushadhi Kendras are proposed to be opened in all 630 districts of the country.[xxvi]
Women and child development
  • A Bill to amend the Juvenile Justice Act has been introduced in Parliament to reform the law relating to juvenile offences.
  • The Juvenile Justice (Care and Protection of Children) Bill, 2014 was passed by Parliament in December 2015.[xxvii]  The Bill permits juveniles between the ages of 16-18 years to be tried as adults for heinous offences.


[Sources: President’s Address to the Parliament from 2014 to 2017; PRS.]

For important highlights from the President’s address in 2017, please see here.  For an analysis of the status of implementation of the announcements made in the 2016 address, please see here.


[i] “Press note on First Revised Estimates of National Income, 2015-16”, Ministry of Statistics and Programme Implementation, January 31, 2017, http://mospi.nic.in/sites/default/files/press_release/nad_PR_31jan17.pdf.

[ii] Economic Survey, 2016-17, http://finmin.nic.in/indiabudget2017-2018/e_survey.asp.

[iii] “Press Release Consumer Price Index Numbers on Base 2012=100 for Rural, Urban and Combined for the Month of December 2016”, Ministry of Statistics and Programme Implementation, January 12, 2017,http://mospi.nic.in/sites/default/files/press_release/CPI_PR12jan17th.pdf

[iv] “Developments in India’s Balance of Payments during the second quarter of 2016-17”, Reserve Bank of India, December 13, 2016, https://www.rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=38884.

[v] “Developments in India’s Balance of Payments during the second quarter of 2016-17”, Reserve Bank of India, December 13, 2016, https://www.rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=38884.

[vi] Progress Report, Pradhan Mantri Jan Dhan Yojana (Last accessed on January 24, 2017),http://www.pmjdy.gov.in/account.

[vii] “Cabinet approves setting up of India Post Payments Bank”, Cabinet, June 1, 2016.

[viii] “Achievements of Ministry of Agriculture and Farmers Welfare”, Ministry of Agriculture, January 2, 2016.

[ix]  “Agricultural Statistics at a Glance 2015”, Department of Agriculture, Cooperation and Farmer’s Welfare, Ministry of Agriculture and Farmer’s Welfare, http://eands.dacnet.nic.in/PDF/Agricultural_Statistics_At_Glance-2015.pdf.

[x] “Task Force on Interlinking Rivers Constituted”, Press Information Bureau, Ministry of Water Resources, April 14, 2015.

[xi] Special Committee for Interlinking of Rivers, National Water Development Agency,http://www.nwda.gov.in/writereaddata/ilr/notification.pdf.

[xii] Report No. 4, Standing Committee on Energy, ‘The Electricity (Amendment) Bill, 2014’, Lok Sabha, May 2015, Standing Committee on Energy, http://www.prsindia.org/uploads/media/Electricity/SC%20report-Electricity.pdf.

[xiii] “Physical Progress (Achievements)”, Ministry of New and Renewable Energy,  March  30, 2015,http://mnre.gov.in/mission-and-vision-2/achievements/.

[xiv] Appropriation Acts (Repeal) Act, 2016, http://lawmin.nic.in/ld/Act22of2016AppropriationActsrepeal.pdf.

[xv] Repealing and Amending Act, 2016, http://lawmin.nic.in/ld/Act23of2016RepealingandAmending.pdf.

[xvi] 12(1)/2014/D (Pen/PoI)- Part II, Government of India, Ministry of Defence, Department of Ex- Servicemen Welfare, November 7, 2015, http://www.desw.gov.in/sites/upload_files/desw/files/pdf/OR OP-DESW-MOD.pdf.

[xvii] Lok Sabha Unstarred Question 1696, Ministry of Defence, November 25, 2016,http://164.100.47.190/loksabhaquestions/annex/10/AU1696.pdf.

[xviii] “Year End Review 2016”, Ministry of Defence, December 31, 2016,http://pib.nic.in/newsite/PrintRelease.aspx?relid=156049.

[xix] The Compensatory Afforestation Fund Act, 2016,http://www.prsindia.org/uploads/media/Compensatory%20Afforestation/CAMPA%20act,%202016.pdf.

[xx] Rajya Sabha Unstarred Question No 82, Ministry of Road Transport and Highways, April 25, 2016.

[xxi] Rajya Sabha Unstarred Question No 914, Department of Rural Development, May 2, 2016 ,http://164.100.47.234/question/annex/239/Au914.pdf.

[xxii] Lok Sabha Unstarred Question No 4443, Ministry of Housing and Urban Poverty Alleviation, December 14, 2016, http://164.100.47.190/loksabhaquestions/annex/10/AU4443.pdf.

[xxiii] Lok Sabha Unstarred Question No 199, Ministry of Urban Development, November 16, 2016,http://164.100.47.190/loksabhaquestions/annex/10/AU199.pdf.

[xxiv] “Rolling out of National Health Assurance Mission”, Press Information Bureau, Ministry of Health and Family Welfare, July 15, 2014.

[xxv] Draft National Health Policy 2015, December 2014, Ministry of Health and Family Welfare,http://www.mohfw.nic.in/showfile.php?lid=3014.

[xxvi] Pradhan Mantri Bharatiya Jan Aushadi Pariyojana guidelines,http://janaushadhi.gov.in/data/Individuals_December_2016.pdf.

[xxvii] The Juvenile Justice (Care and Protection of Children) Act, 2015,http://www.prsindia.org/uploads/media/Juvenile%20Justice/Juvenile%20Justice%20Act,%202015.pdf.

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