Daily News Analysis

Anti Defection Law

8th October, 2021 Polity

Figure 2: No Copyright Infringement Intended

Context:

  • Recently, the Calcutta High Court has given West Bengal Assembly Speaker a deadline to pass an order in the defection case involving a Member of Legislative Assembly (MLA).
  • Anti-defection proceedings are also going on in other states such as Jharkhand and Rajasthan.

About Anti Defection Act

  • The anti-defection law punishes individual Members of Parliament {MPs)/MLAs for leaving one party for another.
  • Parliament added it to the Constitution as the Tenth Schedule in 1985. Its purpose was to bring stability to governments by discouraging legislators from changing parties.
  • The Tenth Schedule- popularly known as the Anti-Defection Act- was included in the Constitution via the 52nd Amendment Act, 1985 and sets the provisions for disqualification of elected members on the grounds of defection to another political party.
  • It was a response to the toppling of multiple state governments by party-hopping MLAs after the general elections of 1967.
  • However, it allows a group of MP/MLAs to join (i.e. merge with) another political party without inviting the penalty for defection. And it does not penalise political parties for encouraging or accepting defecting legislators.
  • As per the 1985 Act, a 'defectionby one-third of the elected members of a political party was considered a 'merger·
  • But the 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party have to be in favour of a merger for it to have validity in the eyes of the law.
  • The members disqualified under the law can stand for elections from any political party for a seat in the same House.
  • The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to 'Judicial review'.
  • However, the law does not provide a time-frame within which the presiding officer has to decide a defection case.

Grounds of Disqualification

  • If an elected member voluntarily gives up his membership of a political party.
  • If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorised to do so, without obtaining prior permission.
  • As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorised person within 15 days of such incident.
  • If any independently elected member joins any political party.
  • If any nominated member joins any political party after the expiry of six months.

Related Issues

Undermining Representative & Parliamentary Democracy:

  • After enactment of the Anti-defection law, the MP or MLA has to follow the party's direction blindly and has no freedom to vote their judgment.
  • Due to Anti-Defection law, the chain of accountability has been broken by making legislators accountable primarily to the political party.

Controversial Role of Speaker:

  • In many instances, the Speaker (usually from the ruling party) has delayed deciding on the disqualification.

No Recognition of Split:

  • Due to the 91st amendment, the anti-defection law created an exception for anti-defection rulings.
  • However, the amendment does not recognise a 'split' in a legislature party and instead recognises a 'merger'.

Subversion of Electoral Mandates:

  • Defection is the subversion of electoral mandates by legislators who get elected on the ticket of one party but then find it convenient to shift to another, due to the lure of ministerial berths or financial gains.

 Affects the Normal Functioning of Government:

  • The infamous 11Aaya Ram, Gaya Ram slogan was coined against the background of continuous defections by the legislators in the 1960s. The defection leads to instability in the government and affects the administration.

Promote Horse-Trading:

  • Defection also promotes horse-trading of legislators which clearly go against mandate of a democratic setup.

 

Suggestions

  • The Election Commission has suggested it should be the deciding authority in defection cases.
  • Others have argued that the President and Governors should hear defection petitions.
  • The Supreme Court has suggested that Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.
  • Some commentators have said the law has failed and recommended its removal. Former Vice President Hamid Ansari has suggested that it applies only to save governments in no-confidence motions.

 

Way Forward

  • If government stability is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal part of democracy.
  • There is an ardent need for legislation that governs political parties in India. Such a law should bring political parties under RTI, strengthen intra-party democracy, etc.
  • Chairman/Speaker of the house, being the final authority in terms of defection, affects the doctrine of separation of powers. In this context, transferring this power to higher judiciary or to Election Commission may curb the menace of defection.
  • In order to shield the detrimental effect of the anti-defection law on representative democracy, the scope of the law can be restricted to only those laws, where the defeat of government can lead to loss of confidence.