Anti- Defection Law      

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Context: Verdict of the Goa bench of the Bombay High Court has raised a controversy over the effectiveness of anti-defection law.

Details:

• The High Court of Bombay at Goa in its judgment held that the former Congress MLAs in the Goa assembly who had defected to the BJP are exempt from disqualification under the 10th Schedule of the Indian constitution.
• The court said that the defection of this group of Congress MLAs with the BJP is deemed to be a merger of the original political party (Indian National Congress) with the BJP. Therefore, these members are protected from the anti-defection law.
• The reason behind the judgment was that the 10th Schedule exempts defectors from disqualification if their original political party merges with another party and two-thirds of the members of that party in the legislature agree with the merger. As 10 of the 15 Congress MLAs of the Goa Assembly, two-thirds of the party’s strength in the House had joined the BJP.

Defection:

• Defection by legislators occurs in many democracies. It can be argued that they can undermine the stability of the government, which is dependent on the support of the majority party's own elected legislators and/or a coalition of those elected to represent other parties. The argument follows that such instability can amount to a betrayal of the people's mandate as voiced at the most recent prior election.
• Almost 50% of the 4,000 legislators elected to central and federal parliaments in the 1967 and 1971 general elections subsequently defected, leading to political turmoil in the country.
• A law was sought to limit such frequent defections in India. In 1985, the Tenth Schedule of the 52nd amendment to the Constitution of India was passed by the Parliament to achieve this.

Anti-Defection Law under Indian Constitution:

• The anti-defection law aims to punish legislative members (MPs/MLAs) for changing political parties.
• The 52nd Amendment Act of 1985 added the 10th Schedule to the Constitution. This act is commonly referred to as the ‘anti-defection law’.
• The 52nd Amendment Act provided for the disqualification of the members of Parliament and the state legislatures on the ground of defection from one political party to another.
  • However, it also allowed merger with another political party without inviting the penalty for defection.
• The 91st Amendment Act of 2003 made one change in the provisions of the 10th Schedule.
  • As per the 1985 Act, a 'defection' by one-third of the elected members of a political party was considered a 'merger'.
  • But the 91st Constitutional Amendment Act, 2003, amended this and now at least two-thirds of the members of a party have to be in favor of a "merger" to bypass anti-defection act.

Provision of the Anti-defection Act:

• Disqualification of Members of Political Parties: A member of a House belonging to any political party becomes disqualified for being a member of the House;
  • If he voluntarily gives up his membership of such a political party.
  • If he votes or abstains from voting in contrary to any direction issued by his political party without obtaining prior permission of the party.
  • From the above provision it is clear that a member elected on a party ticket should continue in the party and obey the party directions.
• Independent Members: An independent member of a House (elected without being set up as a candidate by any political party) becomes disqualified if he joins any political party after such election.
• Nominated Members: A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from joining the house.
  • This means that he may join any political party within six months of taking his seat in the House without inviting this disqualification.
• Exceptions: The above disqualification on the ground of defection does not apply in the following two cases:
  • If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when 2/3rd of the members of the party have agreed to such merger.
  • If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it. This exemption has been provided in view of the dignity and impartiality of this office.
• Deciding Authority: Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
  • Originally, the act provided that the decision of the presiding officer is final and cannot be questioned in any court.
  • However, in the Kihoto Hollohan case (1993), the Supreme Court declared the above provision as unconstitutional, and said that the decision of the presiding officer is subject to judicial review on the grounds of mala fides, perversity, etc.
• Rule-Making Power: The presiding officer of a House is empowered to make rules to give effect to the provisions of the 10th Schedule.
  • All such rules must be placed before the House for 30 days. The House may approve or modify or disapprove them.
  • According to the rules, the presiding officer can take up a defection case only when he receives a complaint from a member of the House. Before taking the final decision, he must give the member (against whom the complaint has been made) a chance to submit his explanation.
  • He may also refer the matter to the committee of privileges for inquiry.

Anti-defection Provisions under 91st Amendment Act of 2003:

• The total number of ministers, including the Prime Minister, in the Central Council of Ministers shall not exceed 15% of the total strength of the Lok Sabha.
• A member of either House of Parliament belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
• The total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15 % of the total strength of the Legislative Assembly of that state. But, the number of ministers, including the Chief Minister, in a state shall not be less than 12.
• A member of either House of a state legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
• A member of either House of Parliament or either House of a State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post.
• The provision of the 10th Schedule (anti-defection law) regarding exemption from disqualification in case of split by one-third members of the party has been deleted. It means that the defectors have no more protection on grounds of splits.

Significance of the Anti-defection law under 10th Schedule:

• It provides a greater stability in the Parliament and state legislature by checking the tendency of legislators to change parties.
• It Curbs Political corruption, which is a necessary first step for addressing other forms of corruption in the country.
• It Strengthens democracy by bringing stability to politics, ensuring legislative programmes of the Government are not affected by a defecting Member.
• It make members of parliaments more responsible and loyal to the parties with whom they were aligned at the time of their election, as many believe that the party allegiance plays a key role in their election success.
• It gives, for the first time, a clear-cut constitutional recognition of the existence of political parties.

Concerns:

• Experience shows that the Anti-defection law has failed to prevent defections.
• It does not make a differentiation between disagreement and defection. It curbs the legislator’s right to dissent and freedom of conscience in the name of the party discipline.
• Its distinction between individual defection and group defection is irrational.
• Its discrimination between an independent member and a nominated member is illogical. If the former joins a party, he is disqualified while the latter is allowed to do the same.
• Its Decision-making authority in the presiding officer is criticized on two grounds;
  • He may not exercise this authority in an impartial and objective manner due to political reasons.
  • Lack of legal knowledge and experience to decide upon the cases.
• It promotes horse-trading of legislators which clearly go against the values of a democratic setup.

Way forward:

• There must be a neutral authority for deciding defection cases to avoid the political pressure and to safeguard democratic values of the political system.
• 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 within a time period.
• Most of the time defection results due to the dissatisfaction among the members of the political parties, therefore steps must be taken to strengthen inner party democracy.
• Need to introduce reforms such as bringing political parties under RTI, strengthening intra-party democracy, etc.
• Chairman/Speaker of the house, being the final authority in terms of defection, affects the doctrine of separation of powers. Therefore transferring this power to higher judiciary or to Election Commission may curb the tendency of defection.

https://indianexpress.com/article/opinion/columns/a-judgement-that-could-open-floodgates-to-defection-goa-assembly-7795224/