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EDITORIAL ANALYSIS: The anti defection law — political facts, legal fiction

 Source: The Hindu

  • Prelims: Anti-defection law, floor test, Tenth schedule, powers of speaker etc
  • Mains GS Paper II: State legislature- functioning, role and conduct of business, role of judiciary in checks and balances etc

 

ARTICLE HIGHLIGHTS

  • The practice of legislators from changing political parties during their term continues unabated in the Indian legislature despite the Tenth Schedule having been inserted into the Constitution in 1985.
  • It was meant to arrest the practice of legislators from changing political affiliations during their term in office.
  • The political crisis in Maharashtra, and many others before it, are grim reminders of what the Tenth Schedule can and cannot do.

 

INSIGHTS ON THE ISSUE

Context

Anti Defection Law:

  • 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 – 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 (i.e., 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 timeframe 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 authorized 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 authorized 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.

 

Issues with Anti Defection Law:

  • Ambiguity about Party: It does not clarify whether the original political party refers to the party at the national level or the regional level, despite the fact that this is how the Election Commission of India recognises political parties.
  • Claim about merger: It says 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. It is only when these two conditions are satisfied that a group of elected members can claim exemption from disqualification on grounds of merger.
  • Creating legal fiction : It seems to be creating a“legal fiction” so as to indicate that merger of two third members of the 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 & Parliamentary Democracy:
    After enactment of the Anti-defection law, the MP or MLA has to follow the party’s direction blindly and has no freedom to vote in their judgment.
    • Due to Anti-Defection law, the chain of accountability has been broken by making legislators accountable primarily to the political party.
  • Controversial Role of Speaker: 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 amendment, 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’.
  • 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.
  • Affects the Normal Functioning of Government: The infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous defections by the legislators in the 1960s.
    • The defection leads to instability in the government and affects the administration.
  • Promote Horse Trading: Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.
  • Allows only Wholesale Defection:
    It allows wholesale defection, but retail defection is not allowed. Amendments are required to plug the loopholes.
    • The concern that if a politician is leaving a party, s/he may do so, but they should not be given a post in the new party.

 

Different Suggestions related to the Anti-defection Law:

  • 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.
  • The Law Commission in 1999 and the National Commission to Review the Working of the Constitution((NCRWC) in 2002 recommended removing Paragraph 4 from the Tenth schedule.

 

Paragraph 4 of Tenth Schedule:

  • Sub-paragraph (1) of paragraph 4 exempts an MLA/Member of Parliament [MP] from disqualification in case the “original political party” to which he or she belongs, ‘merges’ with “another political party”, and if such merger has been accepted by the member and any other members of the original political party.
  • Under sub-paragraph (2) of paragraph 4, it is for the “members of the Legislature party” (and not the political party as a unit) to decide whether there should be or should not be a merger of their political party with “another political party”.

 

Issues with Paragraph 4 of Tenth Schedule:

  • sub-paragraph (2) of paragraph 4: It is agnostic to the prevailing political reality since by legal fiction, it enables a merger of two national parties, who are not only antagonistic to each other but also have completely disparate ideologies.
  • Paragraph 4 of the Tenth Schedule legitimizes unethical party changes by MLAs/MPs and consequently undermines the will of the people, reflected in the votes they have cast in the election process.

 

Floor Test:

  • It is a term used for the test of the majority. If there are doubts against the Chief Minister (CM) of a State, he/she can be asked to prove the majority in the House.
  • In case of a coalition government, the CM may be asked to move a vote of confidence and win a majority.
  • In the absence of a clear majority, when there is more than one individual stake to form the government, the Governor may call for a special session to see who has the majority to form the government.
  • Some legislators may be absent or choose not to vote.
  • The numbers are then considered based only on those MLAs who were present to vote.

 

Instruments of Checks & Balances

  • Legislature Control
  1. On Judiciary: Impeachment and the removal of the judges. Power to amend laws declared ultra vires by the Court and revalidating it.
  2. On Executive: Through a no-confidence vote it can dissolve the Government. Power to assess works of the executive through the question hour and zero hour. Impeachment of the President.
  • Executive Control
  1. On Judiciary: Making appointments to the office of Chief Justice and other judges.
  2. On Legislature: Powers under delegated legislation. Authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution.
  • Judicial Control
  1. On Executive: Judicial review i.e. the power to review executive action to determine if it violates the Constitution.
  2. On Legislature: Unamendability of the constitution under the basic structure doctrine pronounced by the Supreme Court in Kesavananda Bharati Case 1973.

 

 Way Forward

  • Paragraph 4 of the Tenth Schedule must also be examined in the context of paragraph 3 of the Tenth Schedule (deleted by the Constitution (Ninety First Amendment) Act, 2003,
  • Law Commission of India, in its 170th Report on the Reform of the Electoral Laws (May, 1999) had not only recommended deletion of paragraph 3, but had also recommended deletion of paragraph 4 since it felt that the said paragraph “is likely to lead to several complications and unnecessary disputes.” The manner in which the Goa case played out shows that these observations of the Law Commission were quite prescient.
  • In order to shield the detrimental effect of the anti-defection law on representative democracy, the scope of the law can be restricted to only those laws, where the defeat of government can lead to loss of confidence.

 

 QUESTION FOR PRACTICE

The crisis in Maharashtra and even earlier instances are grim reminders of issues with the Tenth Schedule. Critically analyze.

(200 WORDS, 10 MARKS)