DAILY NEWS ANALYSIS

News?

Speaker of the Maharashtra Legislative Assembly has refused to disqualify 40 MLAs of the Eknath Shinde faction after recognising it as the real Shiv Sena.

He also did not disqualify 14 MLAs of the Uddhav Balasaheb Thackeray (UBT) group due to technical reasons under the Tenth Schedule.

Anti Defection Law?

• The anti-defection law punishes individual Members of Parliament(MPs)/MLAs for leaving one party for another.
• Parliament added it to the Constitution as the Tenth Schedule in 1985. Its purpose was to bring stability to governments by discouraging legislators from changing parties.
  • The Tenth Schedule - popularly known as the Anti-Defection Act - was included in the Constitution via the 52^nd Amendment Act, 1985.
  • It sets the provisions for disqualification of elected members on the grounds of defection to another political party.
  • It was a response to the toppling of multiple state governments by party-hopping MLAs after the general elections of 1967.
• However, it allows a group of MP/MLAs to join (i.e., merge with) another political party without inviting the penalty for defection. And it does not penalize political parties for encouraging or accepting defecting legislators.
  • As per the 1985 Act, a 'defection' by one-third of the elected members of a political party was considered a 'merger'.
  • But the 91^st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party must be in Favour of a "merger" for it to have validity in the eyes of the law.
• The members disqualified under the law can stand for elections from any political party for a seat in the same House.
• The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.However, the law does not provide a timeframe within which the presiding officer has to decide a defection case.

What are the Grounds of Disqualification?

• If an elected member voluntarily gives up his membership of a political party.
• If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorized to do so, without obtaining prior permission.
  • As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorized person within 15 days of such incident.
• If any independently elected member joins any political party.
• If any nominated member joins any political party after the expiry of six months.

Anti-defection law needed?

An anti-defection law is needed in India to prevent elected representatives from switching political parties or factions frequently, which can lead to instability and a lack of accountability in government.

• Prevention of ‘Aya Ram - Gya Ram’ Politics: The phrase ‘Aaya Ram - Gaya Ram’ implied frequent floor crossing by legislators in the party, which was developed by Haryana MLA Gaya Lal in 1967. He changed his party thrice in a fortnight from Congress to United Front back to Congress and then within nine hours to United Front again.
• Curbing money power: the perceived need to curb the corrupting influence of money and power on politicians and to ensure that politicians were accountable to the voters who elected them.
• Ensuring cohesion: It was also seen as a way to promote stability and cohesion within political parties and to prevent the fragmentation of the party system.
• Political Stability: To strengthen democracy by bringing stability to administration and ensuring legislative programmes of the Government are not jeopardized by a defecting parliamentarian.
• Responsibility and Loyalty: To make members of parliament more responsible and loyal to the political parties with whom they were aligned at the time of their election.

Anti-defection law under criticism?

The anti-defection law in India has been the subject of criticism from various quarters. Some of the main criticisms of the law are as follows:

1. Curbing dissent: The law infringes on the freedom of legislators to follow their conscience and stand up for their beliefs or represent the interests of their constituents.
2. Lack of Intra-Party Democracy: By punishing defectors, the law gives parties a strong incentive to exert control over their members and to discipline those who step out of line. This may discourage legislators from speaking out against party leaders or raising issues that may be unpopular within the party.
3. Fragmentation of Parties: To avoid being disqualified under the law, politicians may form their own parties or join existing small parties, leading to a fragmentation of the party system. This may make it harder for parties to form stable governments and to implement policies effectively.
4. Undermining representative democracy: The law has been abused for political gain. Political parties have been known to use the threat of defection to discipline their members or to coerce them into supporting certain policies or candidates. This may undermine the integrity of the political process and lead to the erosion of public trust in the political system.
5. Controversial role of the speaker: The law has been criticized for its ambiguity and lack of transparency. The provisions of the law are open to interpretation, and the decision of the Speaker or the Chairman on questions of defection is final and cannot be challenged in court. This lack of transparency and judicial oversight has led to concerns about the fairness and impartiality of the process.

How do other countries deal with the question of political defection?

Some countries have laws similar to the Indian anti-defection law, which penalizes politicians who switch parties or violate party discipline. Other countries have no such laws and allow politicians to switch parties or become independents freely.

Here are some examples of how different countries deal with political defections:

• United Kingdom: In the United Kingdom, there is no law prohibiting politicians from switching parties or becoming independents. However, political parties may expel members who defect, and defectors may face backlash from voters in future elections.
• USA: In the United States, there is no law prohibiting politicians from switching parties or becoming independents. However, politicians who switch parties may face backlash from voters in future elections and challenges from within their parties in primary elections.
• Also, countries like Canada, France, Australia, Germany, and Italy do not have any laws against political defection.

Judicial observations regarding defection in India?

Some of the important cases related to anti-defection in India include

1. Kihoto Hollohan vs. Zachillhu and Others (1992): In this case, the Supreme Court of India upheld the constitutionality of the law and ruled that the provisions were necessary to prevent the destabilization of governments and to ensure the integrity of the electoral process.
2. G. Viswanathan vs. Hon'ble Speaker, Tamil Nadu Legislative Assembly (1995): In this case, the Supreme Court ruled that the Speaker of a legislative assembly has the power to decide on cases of defection and that the decision of the Speaker is final and cannot be challenged in a court of law.
3. Ravi S. Naik vs. Union of India (1994): In this case, the Speaker or Chairman of the relevant legislative body can disqualify an elected representative for defection.

Views of Various Committees on the Anti-Defection Law:

• Dinesh Goswami Committee on Electoral Reforms (1990):
  • Disqualification shall have limitation like:
    • For the members who voluntarily give up the membership.
    • For the members who acts/votes contrary to the confidence of his party.
  • The power of the decision of disqualification shall be to the President/Governor on the advice of the Election Commission.
• Law Commission (170th Report, 1999):
  • The provision of split and mergers shall be deleted as an exception from the provision of disqualification.
  • Pre-poll electoral fronts should be treated as political parties under the anti-defection law.
• Constitution Review Commission (2002):
  • The defaulters who are not loyal towards their party shall be barred from holding the public office and also they shall be eligible for getting any political post or any remuneration of the party.
  • The voting cast by the defaulters shall be treated as invalid.

What are the suggestions to reform the Anti-defection law in India?

There have been various suggestions for reform of the anti-defection law in India. Some of the reforms that have been proposed include:

1. 2nd ARC: The issue of disqualification of members on the grounds of defection should be decided by the President/Governor on the advice of the Election Commission.
2. Reducing the number of defections: The threshold for disqualification should be raised from one-third to two-thirds or three-fourths. This would reduce the number of defections and make it harder for political parties to split.
3. Allowing defections in certain circumstances: Some have suggested that defections should be allowed in certain circumstances, such as when a political party merges with another party or when a member is expelled from their party.
4. Removing the role of the Speaker: Some have suggested that the role of the Speaker in deciding on cases of disqualification should be removed and replaced with an independent authority, such as the Election Commission.
5. Allowing independents to join parties: Some have suggested that independent members should be allowed to join political parties without being disqualified.
6. Providing for a grace period: Some have suggested that a grace period should be provided for members who have defected to allow them to prove their loyalty to their new party.
7. Time frame: In one of the judgments, the Supreme Court has held that the Speaker of the Legislative Assembly should decide on a petition seeking disqualification of a member under the Tenth Schedule of the Constitution within a period of three months.

Way Forward

• The Election Commission has suggested it should be the deciding authority in defection cases.
• Others have argued that the President and Governors should hear defection petitions.
• The Supreme Court has suggested that Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.
• Some commentators have said the law has failed and recommended its removal. Former Vice President Hamid Ansari has suggested that it applies only to save governments in no-confidence motions.