Session 2 Anti-Defection Law- A Panacea or not?

The CRCLP in its second session on August 23, 2019 discussed the Anti-Defection Law with the students. The session saw three speakers namely Ananya Sharma, Deepika Sangwan and Gunsimran Kaur elaborately explaining every facet of the law including a brief speech by Prabhat Kumar on the aspect of Party Whips.

Ananya Sharma opened the session with a jusprudential background on Anti-Defection Law. While explaining how this law has a pervasive impact on the lives of every citizen since the same seeks to ensure parliamentary discipline and decorum, she laid down that in order to understand where the law flows from it was pertinent to understand various models of representation. The three important models being the Trustee Model, Delegate Model and the Politico Model. The first one propunded by Englishman Edmund Burke in 18th century laid down that once elected, a legislator will not function simply as per the mandate of his constitutents but use his conscience to vote in the interest of nation, the Delegate Model on the other hand provides that the job of the legislator is to faithfully carry out the mandate of the voters. Consequently, the third model (Politico) was an amalgamation of the the aforementioned and laid down that the legislator was to oscillate between being a trustee and a delegate. She explained how jurisprudentially the Indian Model of representation deviates from all the three models in the sense that here a legislator represents only the political party and neither the nation nor the voter. The second segment of her speech revolved around the history of the law wherein she discussed how the phenomena of defection was not new to an independent India. It was only after the General Election of 1967 that a need for a law was felt. The need was so apparent and acute that a Committee was set up with Y.B.Chavan as the Chaiman. This committee gave recommendations which included enacting a law to govern this aspect. Ananya now gave a timeline which revealed that it almost took 17 years after the General Elections of 1967 to amend relevant Articles of the constitution. First, the Bill for the same was lapsed due to the fact the the Parliament dissolved during the 32nd Amendments,1973. In 1978 during the 48th Amendment the same was withdrawn due to the fact that it was opposed at the stage of introduction by the ruling as well as the opposition and finally, it was only in the year 1985, during the 52nd Amendment, 1985 that Article 101, 102, 190 and 191 were amended to reflect the intention of the Y.B. Chavan’s Committee.

Deepika Sangwan now took the floor to discuss the law surrounding Anti-Defection Law. She begun her segment by distinguishing between oath and affirmation. This was done is order to ensure that the students understand that every elected representative makes a promise to hold his/her office in a dignified manner so as to act as protectors of the Indian Constitution and how the act of defection runs absolutely opposite to that intention. She then explained the kinds of members as included within the 10th Schedule, which includes elected members, nominated members and independent members and how each one of them shall be deemed to have defected. After which she laid down that the Constitution lays down broadly two grounds where the representative is said to have defected and these were, firstly, when he/she voluntarily gives up membership and secondly, when he/she votes or abstains from voting.  At this juncture, Prabhat Kumar intervened to explain what a party whip is. He started by a brief overview of how we departed from being an idealistic democracy wherein we did not anticipate the phenomena of defections. He then explained the concept of 3 Line Whip werein a strict instruction to attend and vote according to the party’s position can be issued, breach of which would normally have serious consequences. In order to act contrary to the same the representative may either seek permission or the party may condone the action in the 15 days of the said act, otherwise the same shall become a ground for disqualification as per Tenth Schedule. Deepika now resumed her segment by explaining how the Tenth Schedule instead of Sections or Articles was composed of Paragraphs. Contaning a total of 8 Paragraph she explained how in the case of Kihoto Hollohon V. Zachilhu, (1992) 1 SCC 309, the court declared Paragraph no. 7 invalid and the same can be done in pursuance of Doctrine of Severability. She also explained the power of the speaker in cases pertaining to disqualification in case of defection whereas the rest of the enumerated grounds outlines the power of the President.

The third and the final speaker, Gunsimran Kaur dealt with the present situation of defections in Karnataka, Goa and Sikkim and reiterated how this law governs a ethical issue and consequently we need cogent solutions to prevent representatives from circumventing it. On the question of recommendations, she stated that she belives that the speaker shouldn’t be given so much power to decide in such cases. Another recommendation was that of Party Bonds to signed by members in order to ensure that defections are reduced by comparitively smaller parties. This recommendation will be looked into by the Centre to see the viability of the same.

The session ended with CRCLP opening the floor for more recommendations to make Anti-Defection law robust in India.

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