The following article discusses the Anti-Defection Law in India, its history, purpose, and loopholes, as well as suggestions for amendments. It also explores the associated issues, such as undermining representative and parliamentary democracy, controversial role of the speaker, subversion of electoral mandates, and impact on the functioning of government.
The Anti-Defection Law: An Overview
Originating from the Tenth Schedule of the Indian Constitution, the Anti-Defection Law came into existence in 1985. The law is aimed at punishing individual Members of Parliament (MPs) or MLAs who defect from one party to another. By discouraging legislators from changing parties, the law was designed to bring stability to government.
Later in 2003, the 91st Constitutional Amendment Act introduced changes to the law. Previously, a defection by one-third of a political party’s elected members was considered a merger. But now, at least two-thirds of a party’s members must favor the merger to gain legal validity. Under the law, disqualified individuals can contest elections from any political party for a seat in the same House.
Conditions for Disqualification under Anti-Defection Law
Several actions can lead to disqualification under the Anti-Defection Law. These include voluntarily giving up the membership of a political party, voting or abstaining from voting contrary to a party’s directions, joining a political party as an independently elected member, and nominated members joining any political party after six months.
Shortcomings of the Anti-Defection Law
While the Anti-Defection Law aims to stabilize governments, it has several challenges. First, it undermines representative and parliamentary democracy by forcing MPs or MLAs to blindly follow their party’s direction. Furthermore, the accountability chain is broken by making legislators primarily responsible to their political party.
The law also ambiguously states the timeframe within which the presiding officer should decide on a defection case. This lack of clarity often leads to prolonged cases, sometimes only settled after a term has ended.
Another issue lies with the 91st amendment, which fails to recognize a ‘split’ in a legislature party and instead acknowledges a ‘merger’. Defection also subverts electoral mandates, affects government functioning, promotes horse-trading of legislators, and allows wholesale but not retail defection, thus revealing several loopholes.
Suggested Amendments and Way Forward
Various suggestions have been made to address the issues with the existing Anti-Defection Law. The Election Commission suggested that it should be the deciding authority in defection cases, while others proposed the President and Governors for this role. The Supreme Court has recommended setting up an independent tribunal headed by a retired judge of the higher judiciary to decide these cases swiftly and impartially.
Some believe the law has failed entirely and advocate for its removal. Former Vice President Hamid Ansari suggested that the law should only be applied to save governments in no-confidence motions.
To counter the detrimental impact of the Anti-Defection Law on representative democracy, the legislation’s scope could be restricted to laws where the government’s defeat can lead to loss of confidence. Additionally, it is essential for political parties to strengthen their internal systems to prevent defections, highlighting the need for legislation governing political parties in India.