Rectify anti-defection law quickly

Loopholes in the law need to be plugged to prevent making a mockery of people’s will and democracy

By Author JR Janumpalli   |   Published: 24th Jul 2019   12:15 am Updated: 23rd Jul 2019   11:42 pm

Politics has changed drastically in India since independence. There are now over 1,700 political parties. In India’s first Lok Sabha elections in 1952, just 53 parties competed. Multiparty coalitions have become the norm now. Legislators now get elected from one party and join another as per their wishes. They could even club together to form a temporary front ‘a la carte’ just to form a government. What are the reasons for such proliferation of political parties and defections of legislators?

Political analysts say the boom in political parties has in parts to do with India’s immense diversity, caste divisions and the love for lucre. It is also believed that at the provincial level, the national parties are ignoring the local issues. So new regional political parties started emerging to respond to the anxieties and aspirations of various sections of society.

The proliferation of new parties started in the late 1980s. This trend gained momentum as regional players saw parties other than the Congress or the BJP becoming serious power players with just a handful of seats. Moreover, it is a fact that, of late, politics has become an incredibly lucrative enterprise. And added to this, defections from one party to another are on the rise. These defections are used to break and make governments.

Anti-defection Law

The anti-defection law, added as the 10th schedule to the Constitution in 1985, is aimed to check the frequent defection by legislators. The law was brought in as the evil of political defections became a matter of national concern. If not combated, it is likely to undermine the very foundations of our democracy and the principles that sustain it.

According to the law, a member can be disqualified in two circumstances.

First, if s/he voluntarily gives up membership of a party, Second, a member also incurs disqualification when s/he votes (or abstains from voting) contrary to the directive issued by the party. But in the 1994 Ravi Naik vs Union of India case, the Supreme Court (SC) said: “Even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.”

Expulsion under Law

The rulings of the courts are contradictory. Under the anti-defection law, even an expelled legislator is required to follow the whip issued by the party on whose ticket s/he was elected to the House and vote for her/his original party during a floor test. The Supreme Court ruled in 1996 that an expelled member was bound by the party’s whip even after the expulsion, and failure to adhere to it would result in her/his disqualification from the House.

In another case on November 15, 2010, the court declared that they could not be disqualified from Parliament under the anti-defection law even if they defied the whip of their former party. The matter was referred to a larger bench to resolve contradictions on the important constitutional issue, which is pending before the Supreme Court.

Split and Merger

According to the 10th Schedule, it requires at least two-third members of a legislature party to form a new political group, or ‘merge’ with another political party without getting disqualified under the anti-defection law. The 10th Schedule originally recognised a ‘split’ if at least one-third members of the legislature party decided to form or join another political party.
However, this provision was done away with by the 91st amendment to the Constitution in 2003. The amendment recognises a ‘merger’ that requires at least two-third members of a legislature party to join another political formation or form a new one to not invite the wrath of the anti-defection law.

Speaker’s Decision

The 10th Schedule clearly said that the Speaker’s or the Chairperson’s decision on questions of disqualification on ground of defection shall be final as all such proceedings shall be deemed to be proceedings in Parliament or Assembly. Further, it is also said that notwithstanding anything in the Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. While upholding the Constitutional validity of the 10th Schedule, a Constitution Bench of the Supreme Court in a case said the Speaker’s decision was subject to judicial review as he acted as a tribunal while deciding cases under the anti-defection law.

These contradictions in the contents of the law and the interpretation of them by the courts have made the anti-defection law a very controversial and a litigant law, which is not helping solve the problem of defections. On the contrary, it has aided the recalcitrant political parties and the legislators to take advantage of its loopholes and indulge in defections at will. The happenings in Uttarakhand, Andhra Pradesh, Telangana and Goa in recent times are examples of it.
The present Karnataka imbroglio is again testing the anti-defection law. The oft-repeated ball game among Speakers, Governors and courts in such defections makes a mockery of the anti-defection law.

A critical analysis of the 10th Schedule reveals that the anti-defection law of India has several defects and deficiencies, which have become barriers in achieving the very fundamental objectives of the law. Therefore, the provisions of the 10th Schedule need to be amended to achieve its core objective. After witnessing many cases where invariably the decision of presiding officer is politically motivated, it is felt that it would be better if the decision-making power in the case of defection is vested in an independent body or the Election Commission. This will reduce the political biases in decisions on defection.

This amendment has to be brought by the ruling party at the Centre. But if the party in power at the Centre itself is using the loopholes with unusual gusto, what can one do. Who will bell the cat? No political party is interested in the amendment, as these parties see no advantage for them in it. They want to keep it as it is so as to continue playing their political gamesmanship of horse-trading, making a mockery of democracy.

(The author is a freelance journalist)

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