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The Anti-Defection Law – Political Facts, Legal Fiction
News: The practice of lawmakers from changing political parties during their term continues with no end in the Indian legislature despite the 10 th schedule having been inserted into the Constitution in 1985. The political crisis in Maharashtra provides a grim reminder of what the 10 th Schedule can and cannot do.
What is the Anti-Defection Law? How has it evolved over the years?
• The anti-defection law punishes individual Members of Parliament (MPs)/MLAs for leaving one party for another.
• Parliament added it to the Constitution as the Tenth Schedule in 1985.
• Its purpose was to bring stability to governments by discouraging legislators from changing parties.
• The Tenth Schedule which is popularly known as the Anti-Defection Act was included in the Constitution via the 52nd Amendment Act, 1985.
• It sets the provisions for disqualification of elected members on the grounds of defection to another political party.
• It allows a group of MP/MLAs to join (merge with) another political party without inviting the penalty for defection and it does not penalize political parties for encouraging or accepting defecting legislators.
• As per the 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’.
• But the 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party must be in favour of a “merger” for it to have validity in the eyes of the law.
• The members disqualified under the law can stand for elections from any political party for a seat in the same House.
• The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.
• However, the law does not provide a time frame within which the presiding officer has to decide a defection case.
Issues with ADL:
Paragraph 4 of the Law - Paragraph 4 of the Anti - Defection Law creates an exception for mergers between political parties by introducing three crucial concepts:
• Original Party – The party to which a member belongs (this can refer to the party generally, outside the house)
• Legislature Party - Consisting of all elected members of a House for the time being belonging to one political party.
• Deemed Merger
• Paragraph 4 does not clarify whether the original political party refers to the party at the national level or the regional level, despite the fact that that is how the Election Commission of India recognizes political parties.
• Paragraph 4 states that a merger can take place only when an original party merges with another political party, and at least two-thirds of the members of the legislature party have agreed to this merger.
• Paragraph 4 seems to be creating a “legal fiction” so as to indicate that a merger of two third members of a legislature party can be deemed to be a merger of political parties, even if there is no actual merger of the original political party with another party.
Undermining Representative and Parliamentary Democracy
• After enactment of the ADL, the MP or MLA has to follow the party’s direction blindly and has no freedom to vote in their judgment.
• Due to ADL, the chain of accountability has been broken by making legislators accountable primarily to the political party.
Subversion of Electoral Mandates
• Defection is the subversion of electoral mandates by legislators who get elected on the ticket of one party but then find it convenient to shift to another, due to the lure of ministerial berths or financial gains.
• Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.
Speaker’s Controversial Role
• There is no clarity in the law about the timeframe for the action of the House Chairperson or Speaker in the anti-defection cases. Some cases take six months and some even three years. There are cases that are disposed off after the term is over.
No Recognition of Split
• Due to the 91st Constitutional Amendment Act, 2003, the anti-defection law created an exception for anti-defection rulings. However, the amendment does not recognize a ‘split’ in a legislature party and instead recognizes a ‘merger’. It allows wholesale defection, but retail defection is not allowed. Amendments are required to plug the loopholes.
• The Anti-Defection Law has created a democracy of parties and numbers in India, rather than a democracy of debate and discussion.
Suggestions related to ADL:
• The Election Commission has suggested it should be the deciding authority in defection cases. Others have argued that the President and Governors should hear defection petitions.
• The Supreme Court has suggested that Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.
• Some commentators have said the law has failed and recommended its removal. Former Vice President Hamid Ansari has suggested that it applies only to save governments in no-confidence motions.
What is the way forward?
• Various commissions including National Commission to review the working of the constitution (NCRWC) have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.
• Justice Verma in Hollohan judgment said that tenure of the Speaker is dependent on the continuous support of the majority in the House and therefore, he does not satisfy the requirement of such independent adjudicatory authority. Thus, the need for an independent authority to deal with the cases of defection.
• 170th Law Commission report underscored the importance of intra-party democracy by arguing that a political party cannot be a dictatorship internally and democratic in its functioning outside.