Electoral Reforms In India

[op-ed snap] When defection is a mere detour for an MLA

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Provisions of anti-defection law.

Mains level : GS Paper 2-Parliament and the state legislature-Structure functioning, conduct of business, power and privileges, and the issues arising out of it

Context

In the recently concluded by-election in Karnataka, most of the disqualified MLA’s were re-elected. This set of the event lay down a well-structured framework to sidestep the law, it even set a dangerous precedent for neutralising the consequences of the Anti-Defection Law altogether.

Historical background

  • Defection is not new to the Indian political landscape.
  • An independent MLA from Haryana had switched parties three times in two weeks in 1967.
  • The recurrence of this phenomenon led to the 1985 Anti-Defection Law.

Provisions of the law

  • The law defined three grounds for disqualification-Giving up party membership, violation of whip, and abstaining from voting.
  • Before the amendment, the law allowed for a “split” in the party if at least one-third of the MLAs defect.
  • 91st Constitutional Amendment in 2003 deleted the provision allowing split.
  • Resignation is not the condition for disqualification.
  • This loophole was exploited by the MLAs in Karnataka while they resigned.
  • The resignation was not accepted by the speaker of the house and declared the MLAs disqualified.
  • Law puts no time constraint on the speaker to decide on the resignation of MLAs.

Speaker as a tribunal under law

  • The law originally protected the Speaker’s decision from judicial review.
  • This safeguard was struck down in Kihoto Hollohan v. Zachillhu and Others (1992).
  • In this case, the SC upheld the Speaker’s discretionary power, it underscored that the Speaker functioned as a tribunal under the law.
  • This made the Speaker’s decision subject to judicial review.
  • The same was said in Shrimanth Balasaheb Patel & Others v. Speaker Karnataka Legislative Assembly & Others (2019).

 

Neutral role of the SC

  • The SC struck down ban on Karnataka disqualified MLAs from contesting election till 2023.
  • This effectively removed the only possible permanent solution to the problem.

 

Way forward

The minimum period limit of six years is needed to ensure that the defectors are not allowed to enter the election fray for at least one election cycle which is five years.

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