Anti-defection law

Context: The crisis in Maharashtra shows the anti-defection law to be ineffective, even counterproductive.

• The political crisis in Maharashtra has brought focus back on the anti-defection law.
• The law has failed to shore up the stability of elected governments.
• Not only have many governments fallen due to defections in recent times, but the defectors have not suffered any cautionary consequences.

Issues

• The Speaker has delayed deciding on the disqualification.
• Due to Anti-Defection law, the chain of accountability has been broken by making legislators accountable primarily to the political party.
• Through 91st CAA, the anti-defection law created an exception for anti-defection rulings. The amendment does not recognise a ‘split’ in a legislature party and instead recognises a ‘merger’
• The defection leads to instability in the government and affects the administration.
• Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup
• The voters don’t seem to care about punishing the defectors either – 11 out of the 14 defectors who stood for re-election in the 2019 Karnataka bypolls won.

What needs to be done?

Reforms at Party level

• Political parties must address organizational and ideological infirmities which have made them susceptible to mass defections in the first place.
• Political parties need ideological clarity and the ability to attract individuals with a sense of purpose and not love for power alone
• Internal party processes must be geared to identify and promote members into leadership positions
• Create intra-party forums: provide some institutional leverage to express intra-party dissidence.
• The Election Commission has suggested it should be the deciding authority in defection cases
• 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 – as the law has undermined not just the very principle of representation but has also contributed to polarization in our country by making it impossible to construct a majority on any issue outside of party affiliation.

Anti-Defection Law

• The Tenth Schedule – popularly known as the Anti-Defection Act – was included in the Constitution via the 52nd Amendment Act, 1985 and sets the provisions for disqualification of elected members on the grounds of defection to another political party.
• It was a response to the toppling of multiple state governments by party-hopping MLAs after the general elections of 1967.
• However, it allows a group of MP/MLAs to join another political party without inviting the penalty for defection. And it does not penalise 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 have to be in favour of a “merger” for it to have validity in the eyes of the law.
• 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.

Grounds of Disqualification:

• If an elected member voluntarily gives up his membership of a political party.
• If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorised to do so, without obtaining prior permission.
• As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorised person within 15 days of such incident.
• If any independently elected member joins any political party.
• If any nominated member joins any political party after the expiry of six months.

Source: Indian Express