Anti Defection Law

How to fix the anti-defection loophole

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Tenth schedule

Mains level : Paper 2- Loopholes in anti-defection law

Context

It is time that we took a fresh look at the Tenth Schedule to our Constitution.

Shortcomings of the anti-defection law

  • Partisan nature of Speaker: Paragraph 3 of the Tenth Schedule was omitted by the Constitution (91st Amendment) Act, 2003, which came into effect on January 1, 2004.
  • Paragraph 3, as it existed prior to the amendment, protected defectors as long as one-third of the members of a political party formed a separate group. 
  • In the context of small assemblies, one-third of the members could easily be cobbled together.
  • Often, the speaker of the assembly was seen to be collaborating with the political party in power to protect the defectors under the one-third rule.
  • Such partisan conduct of the speakers is at the heart of a non-functional Tenth Schedule.
  • The seeming political bias of the speakers acting as tribunals is apparent from how disqualification petitions are dealt with.
  • We have seen this happen in Manipur, Goa, Madhya Pradesh, Uttarakhand and other jurisdictions.
  • Allowing two-third members to merge with another party: After the omission of paragraph 3, paragraph 4 allowed for the protection of defecting members provided two-thirds of the members of the legislative party merged with another political party.
  • This provision has invariably been misused.
  • Constitutional flaw in provisions of paragraph 4: Third, there is a constitutional flaw in the manner in which the provisions of paragraph 4 have been enacted.
  • Paragraph 4(1) stipulates that a member of the house will not be disqualified from his membership where his original political party merges with another political party and he claims that he and other members have become members of the other political party or a new political party is being formed by such merger.
  • However, paragraph 4(2) provides that such a merger would be deemed to have taken place only if not less than two-thirds of the members of the legislative party agreed to such a merger.
  • This allows for clandestine corruption where two-thirds of the members of the legislative party are bought over, by means fair or foul, to either topple governments or to strengthen a razor-thin majority of the party in power.
  • This makes the entire provision unworkable and unconstitutional.
  • Prolonging the proceedings: We have witnessed situations where, even though the provisions of paragraph 4 are not ex-facie attracted, the speaker of the assembly makes sure that the proceedings are interminably prolonged so that the term of the assembly comes to an end before the proceedings under the Tenth Schedule against those ex-facie defectors have been concluded.

Need for urgent attention to Article 164(1B)

  • This allows for the toppling of governments by inducements of various kinds.
  • The motivation is that a fresh election allows the disqualified member to be re-elected.
  • He then becomes a member of the assembly once again, as its term is not over and can also be appointed a minister.
  • Under Article 164(1B), such a defection has no real consequences.

Way forward

  • 1] Ensure impartiality of Speaker: Speakers, when elected must resign from the party to which they belong.
  • At the end of their term, there should be a cooling-off period before they can become members of any political party.
  • 2] Omit Paragraph 4 through Amendment: Paragraph 4 of the Tenth Schedule should be omitted by moving a constitutional amendment.
  • 3] Make disqualification for 5 years: All those disqualified under paragraph 2 of the Tenth Schedule should neither be entitled to contest elections nor hold public office for five years from the date of their disqualification.
  • Article 164(1B) should be omitted by moving a constitutional amendment.
  • Set time limit to decide petition for disqualification: All petitions for disqualification of members under paragraph 2 of the Tenth Schedule should be decided, by adopting a summary procedure, within a period of three months.

Consider the question “Has anti-defection law succeeded in curbing the defections and ensuring the stability of the elected governments? Give reasons in support of your argument.”

Conclusion

If our polity wants to get rid of open corruption, it needs to take urgent steps to plug existing loopholes that have made the Tenth Schedule unworkable.

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Back2Basics: Article 164(1B)

  • A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.
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