20 July 2024 – The Indian Express

Issues Associated With The Anti Defection Law of India

Anti-Defection Law: What Is It?

• The Tenth Schedule of the Constitution has an anti-defection law that was created to stop lawmakers from frequently leaving the chamber.
• Through the 52nd Amendment Act, it was incorporated into the Constitution in 1985.
• It stipulates that elected lawmakers will lose their standing in the legislature if they willingly change parties or cast votes that are contrary to the party line.

Reason for Disqualification:

• if the person willingly renounces their political party membership.
• The Supreme Court made it clear in Ravi S. Naik versus Union of India (1994) that an MP or MLA does not have to formally leave their party in order to be disqualified under the anti-defection statute.
• The Supreme Court had declared: “The phrase ‘voluntarily given up his membership’ is not synonymous with’resignation.’ Even in the event that a member does not formally resign from the party to which he belongs, it is still possible to infer from his actions that he has voluntarily given up his membership.”
• The Supreme Court ruled in Rajendra Singh Rana vs. Swami Prasad Maurya and Others (2007) that writing a letter asking the governor to meet with the opposition leader to form a government would be considered willingly leaving the prior party.
• If he or she votes or abstains from voting in the House, contrary to any order issued by his or her political party or anybody authorised to do so, without seeking prior approval.
• if any independently elected member decides to become a member of a political party.
• The Supreme Court ruled in Balchandra L. Jarkiholi Vs. B.S. Yeddyurappa (2010) that independent MLAs who join the Ministry in a coalition government without joining the dominant party will not forfeit their independence. So, becoming a member of the Council of Ministers does not remove one’s eligibility.

Absences from the anti-defection statute:

A participant won’t be eliminated if:

• He or she, together with at least two-thirds of the original party’s members, consent to the merger of their original political party with another party.
• The 2003 91st Amendment to the Constitution eliminated the previous criterion that exempted a member from disqualification if one-third of their fellow members form a distinct group.
• He, she, or any other party member refuses to accept the merger and chooses to continue operating as a distinct entity.
• He or she leaves their original party, but they do not join any new ones.

What problems does the Anti Defection Law have?

• Undermines the Concept of Democracy: By limiting lawmakers’ freedom of speech and expression and holding them more accountable to their party leaders than to the electorate, it erodes both representative and parliamentary democracy.
• Lacks a deadline: It gives the presiding officers of the houses, who can be biassed or swayed by political pressure, the authority to dismiss members without offering a prompt and transparent process for determining cases of defection.
• In Keisham Meghachandra Singh vs. The Hon’ble Speaker Manipur Legislative Assembly & Ors (2020), the Supreme Court did, however, rule that, barring unusual circumstances, speakers of assemblies and the parliament must decide disqualification pleas within three months.
• Still Permits Defection: If a group of people makes up at least two-thirds of the original party, they are free to leave and join another without facing consequences. This compromises the stability and integrity of the democratic system by opening the door for shady and immoral party mergers and splits.
• In this sense, it promotes the “horse-trading,” or the buying and selling of lawmakers.
• Doesn’t Address the Root Cause: Issues such a lack of intra-party democracy, corruption, and electoral malpractice are among the core causes of defection that are not addressed. Furthermore, it doesn’t stop the parties from luring or welcoming the defectors, therefore it doesn’t stop the phenomena of defection.

What actions are necessary to make the Anti Defection Law stronger?

Resolving Procedural Problems:

• Reversing Adjudication Power: Speakers of the House now decide defection cases, which raises questions about political interference and bias. Impartiality might be improved by giving adjudication authority to a separate entity like the Election Commission.
• The Second ARC suggested that the President or Governor make the decision to disqualify members for defection, following the Election Commission’s recommendation.
• Time-bound Decisions: Prolonged ambiguity and political manipulation could be avoided by establishing a rigorous deadline for deciding defection cases.
• Judicial Recourse: In certain situations, permitting direct appeals to the Supreme Court or High Courts may offer extra protection against capricious rulings.
• Enhancing Third-Party Accountability
• Internal Democracy: Enacting laws to protect internal party democracy and openness may lessen lawmakers’ sense of disappointment and maybe stop desertion brought on by party dissatisfaction.
• Reforms to Party Funding: Increasing the accountability and transparency of party funding could help reduce the influence of money power in politics, which can encourage defections.
• Anti-Poaching Measures: By outlawing or penalising attempts to entice people to defect by offering them jobs or perks, such actions may be deterred.
• Stability and Accountability in Balance:
• Merger Exemption: Precluding defections resulting from legitimate party mergers may promote political reorganisation while maintaining stability.
• Public Interest Considerations: Establishing a system to evaluate the public interest in defection cases and only permitting disqualification in cases where it clearly jeopardises the public good could achieve a balance between accountability and stability.
• Right to Dissent: Encouraging healthy debate and independent thought inside legislatures could be achieved by recognising legislators’ right to dissent on particular subjects without leading to their disqualification.

How are defections being handled in other nations?

• UK: While it’s not against the law to leave a political party, doing so could have negative consequences for the defector’s party and supporters. Losing party privileges, being disciplined, and running the possibility of legal issues like recall petitions or by-elections are possible outcomes.
• USA: Likewise, there isn’t a particular statute prohibiting political defections in the USA. Defections for strategic or ideological reasons are uncommon, although they do happen. Defectors might face criticism from the media, voters, and the old party, but they might also find new allies. Depending on the political environment, running for reelection under the new party name offers both chances and obstacles.

Way Forward:

• By limiting political defections, the Indian Constitution’s Anti-Defection Law seeks to maintain democratic stability. Despite its significance, obstacles including limitations on lawmakers’ freedom of speech and procedural problems highlight the need for reforms. The suggested actions are based on global experiences and seek to strike a balance between responsibility and stability. Acknowledging exceptions for public interest and party mergers, the legislation needs to change to be relevant in India’s changing political environment and maintain a strong democracy.