Even after the Tenth Schedule was added to the Constitution in 1985, parliamentarians in Indian legislatures are still prohibited from switching political parties while serving in office.
Commonly referred to as the “Anti-Defection Law,” it was created to stop lawmakers from switching their political allegiances while they were still in office.
A sombre reminder of what the Tenth Schedule can and cannot do is the political crisis in Maharashtra and many others that came before it.
What Does Anti-Defection Law Mean?
The anti-defection statute penalises specific Members of Parliament (MPs)/MLAs who switch parties.
In 1985, it was included by Parliament as the Tenth Schedule to the Constitution. Its goal was to prevent legislators from switching parties, so bringing stability to governments.
Through the 52nd Amendment Act of 1985, the Tenth Schedule, also referred to as the Anti-Defection Act, was incorporated into the Constitution.
It lays forth the guidelines for disqualifying elected officials for joining a different political party.
After the 1967 general elections, party-hopping MLAs overthrew several state governments, prompting this reaction.
The Chairman or Speaker of that House is asked to make decisions about defection-related disqualification, and those decisions are then subject to “Judicial review.”
The law, however, does not provide a deadline for the presiding officer to make a decision in a defection case.
What Constitutes a Defection?
If a political party membership is voluntarily renounced by an elected official.
He will be in violation of the rules if he casts a ballot in the House against the wishes of his political party or anybody else with the authority to do so, without first getting authorization.
His refusal to cast a ballot must not have been approved by his party or the designated person within 15 days after the incident in order for him to be disqualified.
If any independently elected official joins a political party, they are considered to be members.
Any nominated member who joins a political party after the initial six months will be considered a nominated member.
How Does Political System Defection Affect?
Defection is the subversion of election mandates committed by legislators who are elected on the platform of one party but later decide it would be more convenient to switch to another due to the allure of cabinet berths or financial rewards.
Impacts Government’s Regular Operations:
The infamous “Aaya Ram, Gaya Ram” slogan was created in the 1960s in response to the constant defections of parliamentarians.
The defection causes instability in the government and has an impact on the executive branch.
Promote Horse Trading: Defection also encourages legislator horse trading, which is obviously against the spirit of a democratic system.
What Problems Does the Anti-Defection Law Address?
Article 4 of the law:
Three key ideas are introduced in paragraph 4 of the Anti-Defection Law to establish an exception for political party mergers:
The political party to which a member originally belonged (this can refer to the party generally, outside of the House).
A political party currently represented by all elected members of a House.
Despite the fact that the Election Commission of India recognizes political parties in this manner, paragraph 4 does not make clear whether the initial political party refers to the party at the national or provincial level.
According to paragraph 4, a merger can only occur when the founding party combines with another political party and at least two-thirds of the legislators support the merger.
In order to suggest that a merger of two-thirds of a legislature party can be considered to be a merger of political parties, even if there isn’t an actual merger of the original political party with another party, paragraph 4 appears to be constructing a “legal fiction.”
Undermining Representative and Parliamentary Democracy: After the Anti-defection law was passed, MPs and MLAs were forced to vote in accordance with the party’s platform without being able to exercise their own judgment.
The Anti-Defection statute has broken the chain of accountability by holding MPs solely responsible to their political party.
Controversial Speaker Role: The law is unclear as to when the House Chairperson or Speaker should take action in anti-defection matters.
Some legal matters take six months, while others go on for three. After the semester is ended, some cases are resolved.
No Recognition of Split:
The anti-defection statute was amended to make an exception for anti-defection judgements by the 91st Constitutional Amendment Act of 2003.
The amendment, however, recognises a “merger” rather than a “split” in a legislature party.
permits only Wholesale Defection: It is permitted, but retail defection is prohibited. To close the gaps, amendments are necessary.
He expressed worry that while a politician may leave one party, they shouldn’t be offered a position in the new one.
A democracy of parties and numbers, as opposed to a democracy of debate and discussion, has been developed in India as a result of the Anti-Defection Law.
This weakens the parliamentary discussions on any measure and does not distinguish between dissent and defection.
What various suggestions are there in relation to the Anti-defection Law?
The Election Commission has proposed that it be the body that makes decisions on defections.
Some have contended that applications for defection should be heard by the President and the Governors.
In order to rapidly and fairly decide defection cases, the Supreme Court has recommended that Parliament establish an independent panel led by a retired judge from the higher judiciary.
Some observers have declared the law to be ineffective and suggested its repeal. According to former vice president Hamid Ansari, it only applies to saving administrations during motions of no-confidence.
Independent authority to handle disqualification:
Justice Verma stated in the Hollohan decision that because the Speaker’s tenure is dependent on the House’s majority’s continued support, he does not meet the criteria for such an independent adjudicatory authority.
Additionally, his selection as the sole arbitrator in the case breaches a crucial component of the fundamental feature.
Consequently, a separate authority is required to handle defection situations.
Promoting the idea of intra-party democracy:
The 170th Law Commission report emphasised the significance of intra-party democracy by making the case that a political party cannot function both internally as a dictatorship and externally as a democracy.
As a result, the parties ought to discuss and pay attention to the members’ opinions. This would allow its members to express themselves freely and advance party democracy.
By the Supreme Court:
The Supreme Court should shortly review the Tenth Schedule from a legal perspective in order to inform how the anti-defection law will be applied going forward.
RaghukulCS : Questions
Q.) The one factor that has prevented meaningful discussion in our Parliament and state legislatures is the anti-defection law Comment.