Does the anti-defection law need changes?

General Studies Paper 2

• Context: Recently the Election Commission of India recognized the party formed by a group of MLAs defecting from the state legislative assembly in Maharashtra as the original party.

Anti-defection Law:

• Origin:
  • Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.
  • The anti-defection law was a response to the similar toppling of multiple state governments by party-hopping MLAs.
  • Parliament added it to the Constitution in 1985.
• The Tenth Schedule was inserted in the Constitution by 52nd Amendment Act.
• It lays down the process by which legislators may be disqualified on grounds of defection.

What constitutes defection?

• The law covers three kinds of scenarios:
  • Voluntarily giving up:
    • When legislators elected on the ticket of one political party “voluntarily give up” membership of that party or vote in the legislature against the party’s wishes.
    • A legislator’s speech and conduct inside and outside the legislature can lead to deciding the voluntarily giving up membership.
  • Independent members:
    • The second scenario arises when an MP/MLA who has been elected as an independent joins a party later.
  • Nominated legislators:
    • The law specifies that nominated legislators can join a political party within six months of being appointed to the House, and not after such time.
  • Violation of the law in any of these scenarios can lead to a legislator being penalised for defection.
• Applicable to: 
  • The law applies to both Parliament and state assemblies.
• Deciding authority:
  • The Presiding Officers of the Legislature (Speaker, Chairman)are the deciding authorities in such cases.
  • The Supreme Court has held legislators can challenge their decisions before the higher judiciary.
• How long does it take for deciding cases of defection?
  • The law does not provide a time frame within which the presiding officer has to decide a defection case.
  • The court in its recent judgment has held that, ideally, Speakers should take a decision on a defection petition within three months.
• Exceptions in Law:
  • Legislators may change their party without the risk of disqualification in certain circumstances.
    • The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
    • In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

Significance:

• Stability:
  • Defection causes destabilisation, which leads to governments falling and new governments coming up with the help of the defectors.
    • The law aims to bring stability to governments by discouraging legislators from changing parties.
  • Loyalty:
    • Also, anti-defection law tries to bring a sense of loyalty of the members towards their own party.
      • It aims to ensure that members selected in the name of the party are also loyal to the part manifesto and the basic philosophy of the party to which he belongs.

Criticisms around the law

• No scope for acting independently:
  • The key problem with a law that penalises legislators for acting independently is that it goes against the idea of a parliamentary democracy.
  • The disqualification provisions of the Anti-Defection Law binds legislators to the official position taken by their party on any issue.
• No accountability to the constituency:
  • The requirement of abiding by the party direction also reduces the accountability of legislators to their constituency.
• Choosing Party leadership over ideological cohesion:
  • What the law tries to do is to stabilise party systems by consolidating control of the party leadership instead of through ideological cohesion or ownership of the party.
    • By doing this, it is framing democracy not as a system of representation and accountability, but as a contest between factions which have consolidated power.
  • Split as a defence against disqualification:
    • According to the Tenth Schedule of the Constitution, if there is a split in a particular party, and one-third of the legislators move along with the breakaway group, they will not be disqualified. So, split was a defence against disqualification.
    • It is being misinterpreted as is seen in Maharashtra because there is no authoritative interpretation of the law.
  • No timeline for presiding officer to decide:
    • In the 10th Schedule currently, there is no timeline fixed for the Speaker to determine the issue and the purpose of this anti-defection law is defeated.
  • Lure of office:
    • It is widely claimed that Ideological defection doesn’t take place in India & the legislators defect for the lure of office.

Suggestions & way ahead

• Substantive decrease in defections:
  • Owing to the implementation of the Tenth Schedule, there has been a substantive decrease in the defection cases.
  • The provisions of the Tenth Schedule have stood the test of time and several judicial scrutinies.
• Apply only when to test the stability of the government:
  • The law aims to maintain stability in governments but the Anti-Defection Law currently applies to every vote, and even in Rajya Sabha and Legislative Councils of states, where the government’s stability is not at stake.
  • There have been proposals to limit the Anti-Defection Law to votes which test the stability of the government such as no-confidence motions and money bills.
• The Dinesh Goswami Committee on Electoral Reforms (1990): 
  • The committee had recommended that disqualification on grounds of defection should be limited to:
    • An elected member voluntarily giving up membership of his political party, and
    • Voting contrary to the party whip only in respect of vote of confidence/no-confidence, money bill, or motion of vote of thanks to the President’s address.
  • Retaining support is government’ s responsibility: 
    • The onus is on the government to retain the support of a majority of MPs, including those from the same party.
    • Only then can the government be held accountable for its actions.