How Anti-Defection Law is manipulated?

How Anti-Defection Law is manipulated?

Context: Here, we will discuss the problems associated with 10th schedule of Indian Constitution in context of recent article written by Abhishek Manu Singhvi.

What is the Anti-Defection law?
• The Anti-Defection Law in India, introduced through the Tenth Schedule of the Constitution, is designed to prevent political defections.
• The law was added to the Constitution in 1985 by the 52nd Amendment, and further strengthened in 2003.
• ‘Defection’ is defined as abandoning a position or association, often to join an opposing group. The law was enacted to ensure that a party member does not violate the mandate of the party.
• The Tenth Schedule includes provisions for the disqualification of MPs and MLAs on the grounds of defection. Grounds for disqualification include voluntarily giving up membership of a political party, voting or abstaining from voting contrary to any direction issued by the political party, independently elected members joining any party, and nominated members joining any political party after the end of 6 months.
• The decision on disqualification questions on the ground of defection is referred to the Speaker or the Chairman of the House, and their decision is final

How are Defections manipulated in India?
• Pre-Defection Tactics: Defectors often submit no-confidence letters against the Speaker before defecting, citing loose interpretations of legal cases.
• Speaker’s Bias: Speakers, usually from the ruling party, show bias in deciding disqualification cases, affecting opposition and ruling party defectors differently.
• Election Commission and Party Symbols: Defectors may seek recognition as the real party from the Election Commission, benefiting from a legislative majority test.
• Fast-Tracked EC Hearings: While Speakers delay disqualification disputes, Election Commission hearings are expedited, further legitimizing defections.

What needs to be done?
• Abolish the 10th Schedule and replace it with a simpler law stating anyone changing party affiliation should mandatorily resign and seek reelection.
• Do not allow defectors to hold ministerial positions unless reelected.
• Simplify the system to remove the Speaker’s role in disqualification, addressing the issue of bias and partiality.
• Establish a convention where all political parties agree on a Neutral speaker.

Important Supreme court observations
• In the Manipur Judgement, The Supreme Court set a three-month time limit for Speakers to decide disqualification petitions, emphasizing timely decisions.
• Kihoto Hollohan Case: Established that the 10th Schedule is not an unreasonable restriction on free speech and that the Speaker’s order is subject to judicial review.
• Ravi Naik and Balasaheb Patil Cases: Defined ‘voluntary giving up of membership’ broadly, not limited to resignation but inferred from various forms of conduct. These include remaining incommunicado, failing to attend party meetings, or engaging in activities against the party’s interest.
• Vishwanathan Case: It said that an expelled member remains part of their old party unless joining a new one, avoiding immediate disqualification.