In a recent event, the Calcutta High Court imposed a deadline on the West Bengal Assembly Speaker for making a decision in the defection case involving a Member of Legislative Assembly (MLA). Similar proceedings are underway in other states as well, including Jharkhand and Rajasthan.
Anti-Defection Law: An Overview
Introduced in 1985 as the Tenth Schedule of the Constitution, the anti-defection law was designed to penalize Members of Parliament (MPs) or MLAs who leave their party to join another. The main objective was to promote political stability and discourage legislators from switching parties after elections.
The Anti-Defection Act stemmed from the instability caused by party-hopping MLAs who triggered the collapse of several state governments following the 1967 general elections. Despite these stringent measures, the law permits a group of MPs or MLAs to merge with another political party without incurring the penalty for defection.
Key Provisions of the Anti-Defection Law
According to the original 1985 Act, any ‘defection’ by one-third of the elected members of a political party was deemed a ‘merger’. However, this provision was amended under the 91st Constitutional Amendment Act, 2003, and currently, at least two-thirds of the members of a party must agree to a merger for it to be legally valid.
Disqualification on grounds of defection lies with the Chairman or Speaker of the House and is subject to judicial review. However, there is no provision stipulating a time frame within which the presiding officer has to decide a defection case.
Defection can arise if an elected member voluntarily renounces his membership of a political party, votes or refrains from voting contrary to their party’s mandate, or if an independent elected member or nominated member joins a political party. A member can also be disqualified for not having his abstention from voting condoned by his party within 15 days.
Implications of Anti-Defection Law
The anti-defection law, while aiming at preventing instability, has faced criticisms for limiting the legislators’ freedom and undermining representative democracy. The primary accountability of the legislators has been shifted to their respective parties, thereby breaking the chain of accountability.
Another concern lies with the controversial role of the Speaker, who may be biased due to his affiliation with the ruling party, leading to delays in disqualification decisions.
Issues Arising from Amendments to the Anti-Defection Law
The 91st amendment, which recognises a ‘merger’ over a ‘split’, has been a point of contention. It has aided the subversion of electoral mandates by legislators who switch parties for ministerial berths or financial gains, thus hampering the normal functioning of the government and promoting unethical practices like horse-trading.
Suggestions for Reform
Several proposals have been put forth to address the challenges posed by the anti-defection law. The Election Commission has recommended itself as the deciding authority in defection cases, while others suggest that the President and Governors should hear defection petitions.
The Supreme Court has proposed setting up an independent tribunal presided over by a retired judge to decide defection cases. Former Vice President Hamid Ansari has suggested restricting the law’s application to only save governments losing no-confidence motions.
Strategies for Strengthening Democracy
Enhancing internal democracy within parties could be one solution to defections. It is crucial to establish legislation governing political parties in light of the contemporary issues related to defections, such as bringing political parties under the Right to Information Act, improving intra-party democracy, among others.
Transferring the power to decide defections from the Chairman/Speaker to the higher judiciary or Election Commission could also help contain the repercussions of defections. The scope of the anti-defection law should be redefined to protect representative democracy without compromising the stability of the government.
