Why in news?

• Recently, the Calcutta High Court said to the Legislative Assembly Speaker to pass an order under Anti-defection law to disqualify member of legislative assembly who are involved in anti-defection cases.

 

 

ANTI-DEFECTION LAW:

• Intention behind to introduce Anti-defection law in India is to combat “the evil of political defections”.
• The Anti-Defection law punished individual Member of Parliament (MP)/MLAs for leaving one party for another
• The Tenth Schedule was added in the Constitution via 52^nd Amendment Act, 1985. This is also known as Anti-Defection Act.
• The law provides provisions for members who wants to switch their political side (Single or in Group).
• According to the Act of 1985, “defection” means 1/3^rd of the elected members of a political party was considered as “merger”. But the 91^st Constitutional Amendment Act 2003 was introduced to change this to at least 2/3^rd of the members for “merger”.
• The question of disqualification on the ground of defection are referred to the Chairman/Speaker of the House and subject to ‘‘Judicial review” by the Constitutional Courts.
• There is no time-frame provided within which presiding officer has to decide a defection case.
• The anti-defection law has provided stability to elected governments in India.
• It has prevented ruling parties from indulging in horse trading that was seen before the law.

 

 

Grounds of Disqualification:

• Voluntarily gives membership: If an elected member voluntarily gives up his membership of a political party is considered to disqualified.
• Abstains from voting: If he 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. This is considered as ground for disqualification.
•  Abstention: 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 time period.

 

Exceptions under the Anti Defection Law

• Where two-thirds of the legislators of a political party decide to merge into another party, neither the members who decide to join nor the ones who stay with the original party will face disqualification. 
• Any person elected as chairman or speaker can resign from his party, and rejoin the party if he demits that post. 
• Earlier, the law allowed parties to be split, but at present, this has been outlawed.

 

Several recommendations have come up regarding Anti-Defection:

• Dinesh Goswami Committee: Recommended that disqualification should be only for cases are as follows:
  • Member giving up the membership of his political party voluntarily. 
  • Member voting/abstaining from voting opposed to party directions. 

• Law Commission 170th Report: 
  • Delete the exemption in case of splits and mergers. 
  • Consider the pre-poll electoral fronts as one party under the 10th Schedule. 
  • Political parties issue whips to the elected members so that they cast their vote in line with the decisions of the political parties.

• Election Commission: 
  • The President/Governor is bound by the recommendations of the Election commission on the subject of office-of-profit case.

 

Issues Related to Anti-Defection Law:

• Undermining Representative Democracy:  After the law, Member of Parliament/ Member of Legislative Assembly have no freedom to vote their judgment on any issue. It undermines representative democracy.
• Undermining Legislatures:  The Act   undermines the core role of an elected MLA or MP to examine and decide on a policy, bills, and budgets.
• Undermining Parliamentary Democracy: In the parliamentary form of the government, ruling party can be removed any time if it loses required majority in lower house of Parliament. The Anti-Defection law has made this chain of accountability broken by making legislators accountable primarily to the political party.
• Controversy on role of Speaker: Ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties of Speaker of the House.
• Broken chain: The legislator is accountable to general public, and the government is accountable to legislators. In India, this chain of accountability has been broken by making legislators accountable primarily to the party.
• Fails to provide stability: The political system has found ways to topple governments by reducing the total membership through resignations. The Apex Court upheld that the Speaker has to take the decision within three months.
• Horse-Trading: Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.

 

 

Proposed Changes:

• Such matters be referred directly to the high court or the Supreme Court for a speedy judgment. It should be given within a period of 60 days.
• In case of difference of opinion with respect to the party or the party leadership, he has the option to resign and seek the fresh mandate of the people.
• Proposed changes envisage the need for an elected representative to be accountable and responsible towards the people.

 

 

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.
• Former Vice President Hamid Ansari has suggested that it applies only to save governments in no-confidence motions.

 

Way Forward

• Strengthening Intra-Party Democracy: 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.
• Regulating Political Parties: 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.
• Adjudicating Powers: 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 (recommneded by 2^nd ARC report) may curb the menace of defection.
• Scope of Anti-defection Law:  The scope of the law can be restricted to only those laws, where the defeat of government can lead to loss of confidence.
• Amendment to Representation of People Act: Necessary amendments are required in the Act to make political parties more democratic in the selection of their leadership.

 

Conclusion

The Anti-Defections laws should incorporate laws under which separate committees should be constituted for investigating into the cases of horse trading between the parties and where members of these parties are found guilty, punitive sanctions should be imposed on them. It is high time that a watchdog should be provided to our Parliament and there is a need for our constitutional pundits to revisit the issue to combat the menace of corruption and defection which has eroded the values of democracy.