Q . The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. The true objective to enhance the credibility of the country’s polity by addressing rampant party-hopping by elected representatives should be pursued rather than using it as a political tool to pursue narrow interests of party. Critically analyse. 22ND, NOVEMBER.2020 (15 marks, 250 words, GS-2)
Answer-
Approach-
- The first para to include the need of anti-defection law and what the law states
- Then next para could be about the features of the law
- The third para to include the impact and the issues
- The final para to be about the further improvements needed and why the law has to continue.
The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act for the anti-defection law. 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 decision on question as to disqualification on ground of defection is referred to the Chairman or the Speaker of such House, and his decision is final.
The features of the law includes-
- Disqualification
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- If a member of a house belonging to a political party
- Voluntarily gives up the membership of his political party, or
- Votes, or does not vote in the legislature, contrary to the directions of his political party.
- However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
- If an independent candidate joins a political party after the election.
- If a nominated member joins a party six months after he becomes a member of the legislature.
- The Chairman or the Speaker of the House takes the decision to disqualify a member.
- If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.
- Before taking the final decision, he must give the member against whom the complaint has been made, a chance to submit his explanation. He may also refer the matter to the committee of privileges for inquiry. Hence, defection has no immediate and automatic effect.
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- Exception–
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- A person shall not be disqualified if his original political party merges with another, an
- He and other members of the old political party become members of the new political party, or
- He and other members do not accept the merger and opt to function as a separate group.
- This exception shall operate only if not less than two-thirds of the members of party in the House has agreed to the merger.
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The advantages of Anti-defection law includes-
- Provides stability to the government by preventing shifts of party allegiance.
- Ensures that candidates remain loyal to the party as well the citizens voting for him.
- Promotes party discipline.
- Facilitates merger of political parties without attracting the provisions of Anti-defection
- Expected to reduce corruption at the political level.
- More concentration on governance is possible.
- Provides for punitive measures against a member who defects from one party to another.
Challenges posed by the anti-defection law-
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- The law doesn’t touch on the time period for the speaker to decide on disqualification.
- The removal of the split provision prompted political parties to engineer wholesale defections (to merge) instead of smaller ‘retail’ ones. Legislators started resigning from the membership of the House in order to escape disqualification from ministerial berths.
- Resignation v/s Disqualification as seen in Karnataka politics.
- The law impinge on the right of free speech of the legislators
- Doubts regarding “voluntarily” resigning from a party
- Regarding Whips
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- Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue.
- It 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.
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- Challenging the decision of the presiding officer in the courts:
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- The law states that the decision is final and not subject to judicial review. There are several instances that presiding officers take a politically partisan view.
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The further improvements or measures needed-
- To enhance the intra-party democracy so that the individual’s ideas is recognized.
- Establishment of Tribunals to deal with such cases.
- The law needs to be more stringent and effective.
- To respect the division of power among the different organs of government.
The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. The true objective to enhance the credibility of the country’s polity by addressing rampant party-hopping by elected representatives should be pursued rather than using it as a political tool to pursue narrow interests of party.
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