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UPSC ANTI-DEFECTION LAW - English

ANTI-DEFECTION LAW

The practice of legislators from changing political parties during their term continues unabated in Indian legislatures despite the Tenth Schedule having been inserted into the Constitution in 1985.Commonly known as the ‘Anti - Defection Law’, it was meant to arrest the practice of legislators from changing political affiliations during their term in office.The political crisis in Maharashtra, and many others before it, are grim reminders of what the Tenth Schedule can and cannot do.

Anti - Defection Law –

• 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.
• It 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 penalize political parties for encouraging or accepting defecting legislators.
• 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, changed this and now at least two-thirds of the members of a party must 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 timeframe within which the presiding officer has to decide a defection case.

Grounds for Defection

• Voluntary Give Up: If an elected member voluntarily gives up his membership of a political party.
• Violation of Instructions:If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorized 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 authorized person within 15 days of such incident.
• Elected Member:If any independently elected member joins any political party.
• Nominated Member:If any nominated member joins any political party after the expiry of six months.

Defection Affects the Political System

• 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 “Aaya 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 the mandate of a democratic setup.

What Can be Done to Make Anti-Defection Law More Effective

• Rational use of the anti-defection law:  Several experts have suggested that the law should be valid only for those votes that determine the stability of the government. Example: passage of the annual budget or no-confidence motions.
• Advice of Election Commission:  Various commissions including National Commission to review the working of the constitution (NCRWC) have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.
• Independent authority to deal with disqualification:  Justice Verma in Hollohan judgment said that tenure of the Speaker is dependent on the continuous support of the majority in the House and therefore, he does not satisfy the requirement of such independent adjudicatory authority.Also, his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.Thus, the need for an independent authority to deal with the cases of defection.
• Analysis by Supreme Court: An academic revisiting of the Tenth Schedule by the Supreme Court, so as to guide future use of the anti - defection law, is timely and should happen soon.

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