The limits of anti-defection

Concerns:

  • The prolonged political crisis in Karnataka has demonstrated the ways in which the nearly 35-year-old anti-defection law can be used and abused.

Context

  • The political crisis that began in Karnataka with the resignation of 15 MLAs that took five days and multiple missed deadlines to be put to vote
  • This underscored the tortuous working of India’s anti-defection law and threw up a range of associated legal and constitutional questions.
  • The incident calls for an interpretation of the three provisions of the Constitution: Article 190 (vacation of seats), Article 164 (1B), and the Xth schedule of the Constitution.

Anti-defection law:

  • The seeds of the anti-defection law were sown after the general elections in 1967.
  • Anti-defection provisions in India were first introduced in 1985 through the 52nd amendment to the Constitution.
  • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
  • The practice so far is that courts do not interfere until a decision regarding disqualification is taken
  • The anti-defection law does not specify a timeframe for Speakers to decide on defection proceedings.
  • When the politics demanded, Speakers were either quick to pass judgment on defection proceedings or delayed acting on them for years on end.

Grounds of disqualification under Anti-Defection law:

  • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.  The law applies to both Parliament and state assemblies.

Exceptions under the law:

  • Legislators may change their party without the risk of disqualification in certain circumstances.
  • The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger

The amendment, by which the Tenth Schedule was inserted in the Constitution, did three broad things.

  • Firstly, it made legislators liable to be penalised for their conduct both inside (voting against the whip of the party) and outside (making speeches, etc.) the legislature — the penalty being the loss of their seats in Parliament or the state legislatures.
  • Secondly, it protected legislators from disqualification in cases where there was a split (with 1/3rd of members splitting) or merger (with 2/3rds of members merging) of a legislature party with another political party.
  • Thirdly, it made the Presiding Officer of the concerned legislature the sole arbiter of defection proceedings

Early attempts at a law to find the solution to the defections:

  • The first one was made by Indira’s Home Minister Uma Shankar Dikshit in 1973;
  • The second,in 1978, by Shanti Bhushan, Minister for Law and Justice in the Janata Party government of Morarji Desai.
  • The third attempt which was successful —was made in 1985, after the Congress won more than 400 seats in Lok Sabha in the aftermath of Indira’s assassination.

The 2003 Amendment

  • The last step in the legislative journey of the anti-defection law came in 2003.
  • A Constitution Amendment Bill was introduced in Parliament by the government of Prime Minister Atal Bihari Vajpayee to address some of the issues with the law.
  • A committee headed by Pranab Mukherjee examined the Bill.

Pranab Mukherjee Committee observations:

  • It is observed that the lure of office of profit plays dominant part in the political horse-trading resulting in spate of defections and counter defections.
  • The one-third split provision which offered protection to defectors was deleted from the law on the committee’s recommendation.
  • The 2003 Amendment also incorporated the 1967 advice of the Y B Chavan committee in limiting the size of the Council of Ministers, and preventing defecting legislators from joining the Council of Ministers until their re-election.

Way Forward:

  • Politicians found loopholes in this law and used it for their own benefit. It is high time that a watchdog should be provided to our Parliament and there is a need for our constitutional pundits to revisit the issue to combat the menace of corruption and defection which has eroded the values of democracy.
  • There is need to build a political consensus so that the room for political and policy expression in parliament for an individual member is expanded.

Conclusion

  • 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, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
  • The long drawn-out events in the Karnataka Vidhan Sabha have shown that even after three decades, the anti-defection law has not been able to stop political defections

Connecting the dots:

  • Discuss the concerns against anti-defection laws suggest the possible reforms that can be made to anti-defection law?
  • Even after three decades, the anti-defection law has not been able to stop political defections. Critically analyse the given statement?
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