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Insights into Editorial: Liberate the legislator
30 April 2016
Recent disqualification of 9 rebel MLAs in Uttarakhand under anti- defection law has once again brought back discussions surrounding the law to the fore.
What is Anti-defection law?
The anti-defection law was passed by parliament in 1985 strengthened in 2002. The 52nd amendment to the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection.
- A member of parliament or state legislature was deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote. That is, they may not vote on any issue in contravention to the party’s whip.
- Independent members would be disqualified if they joined a political party. Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.
The law also made a few exceptions:
- Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post.
- A party could be merged into another if at least two-thirds (Initially one-third) of its party legislators voted for the merger.
However, the law has had some unintended consequences too:
- The law succeeded in checking the regular phenomenon of unstable governments and horse-trading due to floor crossing by legislators. However, it played a huge role in encouraging the centralisation of India’s political parties.
- Legislators in India now cannot take a stand against party leaders or defy the party whip, and use their conscience to vote on a Bill in the House due to fear of losing their seat under the provisions of the Anti-Defection law.
- This has also the effect of disincentivising lawmakers from seriously thinking, researching or even rifling for best practices to incorporate into legislation that is before the House for consideration and focus their energies on procedural matters.
- Also, a legislator cannot question the sweet deals or alliances between top party leaders.
Does the law impinge on the right of free speech of the legislators?
This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). The court said that “the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.
What changes can be brought in?
- The disqualification of a member of a House should be only on the grounds that if he votes or abstains from voting in the House with regard to a Confidence Motion, No-confidence Motion, Adjournment Motion, Money Bill or financial matters contrary to the direction issued in this behalf by the party to which he belongs to and in no other case.
- Whips can be issued only for those legislative items that threaten the stability of government.
- As recommended by the Goswami Committee, the government should consider giving the power to decide on disqualification under the Act to the President or the Governor, who shall act on the advice of the Election Commission.
- The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances. The Law Commission proposed this change with the condition that partners of such alliances inform the Election Commission before the elections.
The evil of political defections has been a matter of political concern. If it is not combated it is likely to undermine the very foundations of our democracy and the principles that sustain it. However, after 30 years of the enactment of the Tenth Schedule, it needs certain adaptations and further strengthening so as to be of greater relevance to our democratic process today.