From UPSC perspective, the following things are important :
Prelims level : Schedule 10
Mains level : Paper 2- Issues with anti-defection law
The article highlights the shortcomings of the anti-defection law and its failure in ensuring the stability of the government.
Background of anti-defection law
- The anti-defection law was included in the Constitution as the Tenth Schedule in 1985.
- The main purpose was to preserve the stability of governments and insulate them from defections of legislators from the treasury benches.
- The law stated that any Member of Parliament (MP) or that of a State legislature (MLA) would be disqualified from their office if they voted on any motion contrary to the directions issued by their party.
Issues with the anti-defection law
1) Against the concept of representative democracy
- The provisions of the anti-defection law is not limited to confidence motions or money bills.
- It applies to all votes in the House, on every Bill and every other issue.
- It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government.
- Therefore, an MP (or MLA) has absolutely no freedom to vote their judgement on any issue.
- They have to blindly follow the direction of the party.
- This provision goes against the concept of representative democracy.
2) The act turns legislator to be an agent of the party
- There are two broadly accepted roles of a representative such as an MP.
- One is that they are agents of the voters and are expected to vote according to the wishes and for the benefits of their constituents.
- The other is that their duty to their constituents is to exercise their judgement on various issues towards the broader public interest.
- In this, they deliberate with other MPs and find a reasonable way through complex issues.
- The anti-defection law makes the MP neither a delegate of the constituency nor a national legislator but converts them to be just an agent of the party.
3) Broken chain
- The legislator is accountable to voters, and the government is accountable to legislators.
- In India, this chain of accountability has been broken by making legislators accountable primarily to the party.
- This means that anyone from the party having a majority in the legislature is unable to hold the government to account.
- This negates the concept of them having to justify their positions on various issues to the people who elected them to the post.
4) No incentive for MPs to understand policy choices
- If an MP has no freedom to take decisions on policy and legislative proposals, there would be no incentive to put in the effort to understand the different policy choices and their outcomes.
- The MP becomes just another number to be tallied by the party on any vote that it supports or opposes.
5) Weakening of the accountability mechanism
- While introducing the draft Constitution, Dr. B.R. Ambedkar said that the presidential form (such as in the United States) had higher stability but lower accountability.
- This is because the President is elected for four years, and cannot be removed except for proven misdemeanour.
- In the parliamentary form, the government is accountable on a daily basis through questions and motions and can be removed any time it loses the support of the majority of members of the Lok Sabha.
- The drafting committee believed that India needed a government that was accountable, even at the cost of stability.
- The anti-defection bill weakens the accountability mechanism.
6) The act fails to provide stability
- The political system has found ways to topple governments by reducing the total membership through resignations.
- In other instances, the Speaker — usually from the ruling party — has delayed taking a decision on the disqualification.
- The Supreme Court has tried to plug this by ruling that the Speaker has to take the decision in three months, but it is not clear what would happen if a Speaker does not do so.
- The premise that the anti-defection law is needed to punish legislators who betray the mandate given by the voters also seems to be flawed.
- We have seen many of the defectors in States such as Karnataka and Madhya Pradesh being re-elected in the by-polls, which were held due to their disqualification.
- The problem arises from the attempt to find a legal solution to what is essentially a political problem.
- If stability of government is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal systems.
- If parties attract members on the basis of ideology, and they have systems for people to rise within the party hierarchy on their capabilities rather than inheritance, there would be a greater exit barrier.
Consider the question “How far has the anti-defection law succeeded in preventing the destabilisation of the governments? Give reasons in support of your argument.”
The anti-defection law has been detrimental to the functioning of our legislatures as deliberative bodies which hold the executive to account on behalf of citizens. It has turned them into fora to endorse the decision of the government on Bills and budgets. And it has not even done the job of preserving the stability of governments. The Tenth Schedule to the Constitution must be repealed.