Recently, The Supreme Court put on hold a petition to frame guidelines for fixing time limits by which the Speakers of Parliament and the Assemblies should decide defection petitions against MLAs.
The role of individual MPs (Members of Parliament) has diminished over the years and as a result, healthy constructive debates on policy issues are not usually witnessed. How far can this be attributed to the anti-defection law, which was legislated but with a different intention?
About Anti-Defection Law:
The anti-defection law was passed in 1985 through the 52nd Amendment to the Constitution. The law that was contained in the 10th Schedule of the Constitution came into effect on March 1, 1985. It was formulated to bring stability to the Indian political system.
Grounds of Disqualification
● Members of Political Parties
A member of a House belonging to any political party becomes disqualified for being a member of the House
● If (S)he voluntarily gives up his membership of such political party
● If he votes or abstains from voting in such a House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.
● Independent Members
● If he joins any political party after getting elected to the house
● Nominated Members
● If he joins any political party after the expiry of six months from the date on which he takes his seat in the House. (can join any political party within six months)
The above disqualification on the ground of defection does not apply in the following two cases:
● If a merger takes place when two-thirds of the members of the party have agreed to such a merger.
● The provision of the Tenth Schedule pertaining to an exemption from disqualification in case of split by one-third members of legislature party has been deleted by the 91st Amendment Act of 2003.
● If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or re-joins it after he ceases to hold that office.
● The disqualification arising out of defection is to be decided by the presiding officer of the House.
● Originally, the act provided that the decision of the presiding officer is final and cannot be questioned in any court.
● However, in Kihoto Hollohan vs Zachillhu And Others (1992), the Supreme Court held that the presiding officer, while deciding a question under the Tenth Schedule, functions as a tribunal. Hence, his decision like that of any other tribunal is subject to judicial review on the grounds of being malafide, perversity, etc.
Issues with anti-defection law:
● The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. Such a situation impedes the oversight function of the legislature over the government.
● The Anti-Defection Law has created a democracy of parties and numbers in India, rather than a democracy of debate and discussion.
● The current form of the Anti-Defection Law has proven to be woefully ineffective in achieving its key objective – that of preventing quid-pro-quo deals (a favour or advantage granted in return for something) and political instability.
● It only punishes MLAs for switching parties while political parties have no liability under the law. Political parties benefit from defections and are often accused of enticing MLAs of rival parties to switch loyalties.
Recommendations on Reforming the Anti-Defection Law:
● Dinesh Goswami Committee on Election Reforms (1990): The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission. The Election Commission called for this advice to be binding in nature.
● Halim Committee on anti-defection law (1998): The words ‘voluntarily giving up membership of a political party is not comprehensively defined. Restrictions like the prohibition on joining another party or holding offices in the government be imposed on expelled members. The term political party should be defined clearly.
● Election Commission Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
● Constitution Review Commission (2002) The vote cast by a defector to topple a government should be treated as invalid.
Law can be amended to disqualify Members only if they vote against their party whip during important events such as no-confidence motions or passage of the annual budget. On all other matters, Members ought to be given full independence to vote as they choose. This is to fulfil the objective of anti-defection to prevent instability of government as well as the legislature can have an effective check on government.