Anti Defection Law

Institutional fixes and the need for ethical politics

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Anti-defection law.

Mains level : Paper 2- What are the solution to the issue of bypassing of the anti-defection law by the political parties?

The article discusses the recent event in Madhya Pradesh where a group of legislature resigned bringing down the government. A most important issue arising out such incidents is circumventing of the laws made to avoid such things from happening. Several such issues along with their solutions are described here.

New method to bypass the anti-defection law

  • The political activities in Madhya Pradesh represent a new method of bypassing the anti-defection law and toppling elected governments.
  • The government in Karnataka was brought down in July last year in a similar manner with 17 MLAs of the ruling coalition resigning and joining the BJP.
  • What method was used? Under this novel method, a set of legislators of the party in power is made to resign from the Assembly to reduce the total strength of the House enough for the opposition party to cross the halfway mark to form the government.
  • In the ensuing by-elections, the members who resigned were then fielded as ruling party candidates (most of whom have been re-elected in the case of Karnataka).
  • The same practice is likely to be repeated in Madhya Pradesh soon.

A question based on anti-defection law and its implication for healthy debate in the parliament was asked in 2013. And that issues still persist. So, take note of these issues.

Exploiting the loophole in the Tenth Schedule

  • This method of mass defection circumvents the provisions of the Tenth Schedule of the Constitution (better known as the anti-defection law)
  • What is the Tenth Schedule? The tenth schedule prescribes the grounds for disqualification of legislators: voluntarily giving up party membership and voting or abstaining to vote against party directions.
  • Resignation is not mentioned as a ground for disqualification.
  • However, the Speaker in Karnataka disqualified them for the rest of the Assembly’s term, thereby barring them from contesting the by-polls.
  • While the Supreme Court upheld the disqualification.
  • It stuck down the bar from contesting by-polls.
  • In Madhya Pradesh, since the Speaker has accepted the resignation of the MLAs, the defectors can in any case contest the by-polls.

Damaging the underpinnings of democracy

  • The recurrence of this model of defection signals the exploitation of the inherent weaknesses of the anti-defection law.
  • While solo legislators jumping ship might have reduced now, “horse-trading” seems to have gone from retail to wholesale.
  • This threatens the underpinnings of India’s electoral democracy since such surreptitious capture of power essentially betrays the people’s mandate in a general election.

Kihoto case is an important case in relation to the anti-defection law.

Time to reframe the anti-defection law

  • In this context, it is important to examine whether the anti-defection law fulfils any purpose.
  • This law raises fundamental concerns regarding the role of a legislator in a parliamentary democracy.
  • Issues with the law: It denies the legislator the right to take a principled position on a policy matter and reduces her to an involuntary supporter of the whims of party bosses.
  • Challenge to the constitutionality: The constitutionality of the Tenth Schedule was challenged for violating the Basic Structure of Constitution with regard to parliamentary democracy and free speech.
  • Judicial review of the Speaker’s decision: The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) in a 3-2 verdict upheld the law while reserving the right of judicial review of the Speaker’s decision.

What are the shortcomings in the anti-defection law?

  • Restriction on the freedom of legislator: The anti-defection law, on the one hand, severely restricts the freedom of a legislator and makes her a slave of party whips.
  • Failure in preventing the horse-trading: On the other hand, it has not been able to meet its primary objective of preventing horse-trading and continues to be circumvented to bring down elected governments.
  • This calls for reforms that address concerns at both ends of the spectrum.

Following two are the solutions offered here. They are important from Mains point of view. As solutions are often asked for the pressing issues.

Dinesh Goswami Committee and other suggestion

  • Restrict the scope of the binding whip: For addressing the first issue, as the Dinesh Goswami Committee also suggested, the scope of the binding whip should be restricted to a vote of confidence.
  • For addressing the second issue, it is best to institutionalise the Karnataka Speaker’s decision to bar the defected members from contesting in the ensuing by-poll, if not for a longer period.
  • This will disincentivise MLAs from jumping ship.
  • These reforms would require a constitutional amendment to the Tenth Schedule, an uphill task under the current circumstances.

Conclusion

We are facing a deeper challenge of the corrosion of India’s parliamentary system, for even in jurisdictions without such anti-defection laws, we do not see “horse-trading” and “resort politics”. Hence, beyond institutional fixes, we also need a popular articulation of an ethical politics that causes the public to shun such political manoeuvres.


Back2Basic: What is the Tenth Schedule?

  • The Tenth Schedule was inserted in the Constitution in 1985.
  • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
  • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
  • This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
  • The law applies to both Parliament and state assemblies.
  • Exceptions under the 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.
  • Is there any time limit to decide on the matter? The law does not specify a time period for the Presiding Officer to decide on a disqualification plea.
  • Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.
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