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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.
A few weeks ago, in response to the initial protests by farmers against the new central farm laws, three state assemblies – Chhattisgarh, Punjab, and Rajasthan – passed Bills to address farmers’ concerns. While these Bills await the respective Governors’ assent, protests against the central farm laws have gained momentum. In this blog, we discuss the key amendments proposed by these states in response to the central farm laws.
What are the central farm laws and what do they seek to do?
In September 2020, Parliament enacted three laws: (i) the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, (ii) the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, and (iii) the Essential Commodities (Amendment) Act, 2020. The laws collectively seek to: (i) facilitate barrier-free trade of farmers’ produce outside the markets notified under the various state Agriculture Produce Marketing Committee (APMC) laws, (ii) define a framework for contract farming, and (iii) regulate the supply of certain food items, including cereals, pulses, potatoes, and onions, only under extraordinary circumstances such as war, famine, and extraordinary price rise.
How do the central farm laws change the agricultural regulatory framework?
Agricultural marketing in most states is regulated by the Agricultural Produce Marketing Committees (APMCs), set up under the state APMC Act. The central farm laws seek to facilitate multiple channels of marketing outside the existing APMC markets. Many of these existing markets face issues such as limited number of buyers restricting the entry of new players and undue deductions in the form of commission charges and market fees. The central laws introduced a liberalised agricultural marketing system with the aim of increasing the availability of buyers for farmers’ produce. More buyers would lead to competition in the agriculture market resulting in better prices for farmers.
Why have states proposed amendments to the central farm laws?
The central farm laws allow anyone with a PAN card to buy farmers’ produce in the ‘trade area’ outside the markets notified or run by the APMCs. Buyers do not need to get a license from the state government or APMC, or pay any tax to them for such purchase in the ‘trade area’. These changes in regulations raised concerns regarding the kind of protections available to farmers in the ‘trade area’ outside APMC markets, particularly in terms of the price discovery and payment. To address such concerns, the states of Chhattisgarh, Punjab, and Rajasthan, in varying forms, proposed amendments to the existing agricultural marketing laws.
The Punjab and Rajasthan assemblies passed Bills to amend the central Acts, in their application to these states. The Chhattisgarh Assembly passed a Bill to amend its APMC Act in response to the central Acts. These state Bills aim to prevent exploitation of farmers and ensure an optimum guarantee of fair market price for the agriculture produce. Among other things, these state Bills enable state governments to levy market fee outside the physical premises of the state APMC markets, mandate MSP for certain types of agricultural trade, and enable state governments to regulate the production, supply, and distribution of essential commodities and impose stock limits under extraordinary circumstances.
Chhattisgarh
The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 allows anyone with a PAN card to buy farmers’ produce in the trade area outside the markets notified or run by the APMCs. Buyers do not need to get a license from the state government or APMC, or pay any tax to them for such purchase in the trade area. The Chhattisgarh Assembly passed a Bill to amend its APMC Act to allow the state government to notify structures outside APMC markets, such as godowns, cold storages, and e-trading platforms, as deemed markets. This implies that such deemed markets will be under the jurisdiction of the APMCs as per the central Act. Thus, APMCs in Chhattisgarh can levy market fee on sale of farmers’ produce in such deemed markets (outside the APMC markets) and require the buyer to have a license.
Punjab and Rajasthan
The Punjab and Rajasthan Bills empower the respective state governments to levy a market fee (on private traders, and electronic trading platforms) for trade outside the state APMC markets. Further, they mandate that in certain cases, agricultural produce should not be sold or purchased at a price below the Minimum Support Price (MSP). For instance, in Punjab sale and purchase of wheat and paddy should not be below MSP. The Bills also provide that they will override any other law currently in force. Table 1 gives a comparison of the amendments proposed by states with the related provisions of the central farm laws.
Table 1: Comparison of the central farm laws with amendments proposed by Punjab and Rajasthan
|
Provision |
Central laws |
State amendments |
|
Market fee |
|
|
|
Minimum Support Price (MSP) - fixed by the central government, based on the recommendations of the Commission for Agricultural Costs and Prices |
|
|
|
Penalties for compeling farmers to sell below MSP |
|
|
|
Delivery under farming agreements |
|
|
|
Regulation of essential commodities |
|
|
|
Imposition of stock limit |
|
|
|
Dispute Resolution Mechanism for Farmers |
|
|
|
Power of civil courts |
|
|
|
Special provisions |
|
|
Note: A market committee provides facilities for and regulates the marketing of agricultural produce in a designated market area.
Have the state amendments come into force?
The amendments proposed by states aim to address the concerns of farmers, but to a varying extent. The Bills have not come into force yet as they await the Governors’ assent. In addition, the Punjab and Rajasthan Bills also need the assent of the President, as they are inconsistent with the central Acts and seek to amend them. Meanwhile, amidst the ongoing protests, many farmers’ organisations are in talks with the central government to seek redressal of their grievances and appropriate changes in the central farm laws. It remains to be seen to what extent will such changes address the concerns of farmers.
A version of this article first appeared on Firstpost on December 5, 2020.
