Will the Himachal anti-defection law bring an end to “aaya-ram gaya-ram politics”

The article is a legislative comment and aims to analyse the permanent pension bans for defecting legislators.

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IN an attempt to "deter" legislators from the "constitutional sin" of political defections, the Himachal Pradesh Legislative Assembly recently passed the Himachal Pradesh Legislative Assembly (Allowances and Pension of Members) Act, 2024.

The amendment disentitles members of the legislative assembly (MLAs) disqualified under anti-defection law from pensions both prospectively and retrospectively. This Bill was brought by the Himachal Pradesh government in the political context of cross-voting in the recent Rajya Sabha elections.

The Bill inserts a new sub-Section 2A into Section 6-B of the Himachal Pradesh Legislative Assembly (Allowances and Pension of Members) Act, 1971. It stipulates that any person ever disqualified under the Tenth Schedule shall not be entitled to a pension under the Act, with any pension already drawn to be recovered as prescribed.

The current deterrence against defection under the Tenth Schedule is disqualification from the legislature (House); this Bill adds a financial penalty through which defectors are permanently disentitled from pension benefits.

This comment analyses the constitutional validity of the amendment, especially the permanent disentitlement from pensions using Article 14 and the test of reasonable classification.

It argues that this amendment, especially the pension ban (even for subsequently reelected legislators), may fall short of the constitutional standard of reasonable classification. It creates an overinclusive and disproportionate classification not rationally linked to the object of deterring defection.

Constitutional validity

The Himachal legislature has the authority to legislate on the matters enumerated in the State list and Concurrent list of the Constitution. The changes brought by this Bill fall within the subject of the provision of allowances and pensions to state legislators under Entry 42 of List III, which enumerates the legislature's power to make laws on "state pensions".

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Additionally, the Bill seeks to enhance deterrence beyond disqualification under the Tenth Schedule, which aims to curb the evil of political defections.

Therefore, the legislature has the competence to amend the 1971 Act, and the amended Bill is consistent with the constitutional provisions on defection.

Constitutional challenges

Article 14 guarantees equality before the law and equal protection of the law. It allows reasonable classification when it is based on intelligible differentia with a rational nexus to the object of the legislation which is to increase deterrence for defections.

The Tenth Schedule, introduced by the 52nd Constitutional Amendment in 1985, lays down provisions of disqualification on the grounds of defection. The Supreme Court in Kihoto Hollohan upheld the anti-defection law on limited grounds, namely no-confidence votes or matters central to a party's programme.

Disentitlement of pension with recovery can be challenged as a deprivation of property rights without the authority of law under Article 300A. However, since the amendment constitutes 'law' under Article 300A, it is likely to withstand the challenge under Article 300A.

Additionally, the recovery of pension punishes defectors for their acts from their accrued pension rights. It treats all disqualified MLAs for various actions as a single class. The distinction is intelligible as it is based on disqualification under the Tenth Schedule.

However, the Bill may face challenges under the doctrine of proportionality since the punishment is the same for all kinds of defections. Therefore, it is severe and disproportionate in cases where, under the Tenth Schedule, defection is broadly interpreted as any activity that goes beyond merely voting against the party whip.

Furthermore, the amendment imposes a permanent pension ban, including recovery. The rational nexus between the objective of fighting political defection and the recovery of pensions has to be established, considering deterrence is the key goal.

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Will a disqualified MLA who wins the election again be entitled to pension benefits? The phrase "at any time" indicates that the disentitlement from pension benefits is lasting and permanent. Therefore, extending the penalty indefinitely might be seen as arbitrary, and hence the classification may not have a rational nexus to the deterrence objective, considering disqualification for the defection is for a particular term.

The ongoing Bill does not address the root causes affecting defection in India such as the "partisan role of the speaker". The deliberative costs of party whips have been rightly noted by scholars, marking a shift from a "candidate-centred" to a "party-centred" model of representation.

The policy question

The amendment has been brought in the wake of recent defections during the election for a Rajya Sabha seat. Constitutionally, Rajya Sabha elections are overseen by the Election Commission, where MLAs vote in an open ballot, and parties cannot issue whips (instructions) to enforce party discipline.

However, in the current political context, the six MLAs are disqualified on the grounds of their absence from vote during the budget. Should the defection law apply to Rajya Sabha elections when the interests of the state legislature are to be represented at the upper House of the Parliament?

To conclude, the legislation should aim for a balance between the object of fighting the constitutional sin of political defection and the principle of proportionality. Disentitlement of pension for the term of disqualification could achieve this balance. Ultimately, defection is a political problem and legal solutions have their limits.