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Does the anti-defection law need changes?

GS Paper 2

 Syllabus: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure

 

Source: TH

 Context: Maharashtra political controversy cases that are currently pending before the SC will have wide consequences as they raise certain fundamental issues about the working of India’s “anti-defection law”.

 

Background:

  • Last year, the ruling MVA coalition lost power after an internal splintering of the Shiv Sena party.
  • A faction then joined hands with the BJP to form the new ruling coalition and the disputes between the various parties have been continuing since then.

The Tenth Schedule:

Anti-defection law What leads to defection? Deciding authority
●        It punishes individual MPs/MLAs for leaving one party for another to bring stability to governments.

●        However, it allows a group (at least 2/3rd) of MP/MLAs to join/merge with another political party without inviting the penalty for defection.

●        The Parliament of India added it to the Constitution as the Tenth Schedule in 1985 (52nd Amendment).

●        When legislators are elected on the ticket of one political party –

○        Voluntarily give up membership of that party or

○        Vote in the legislature against the party’s wishes.

●        When an independent MP/MLA  joins a party later.

●        A nominated legislator can join a political party within six months of being appointed to the House and not after such time.

●        The Presiding Officers of the Legislature – Speaker, Chairman.

●        However, the law does not provide a time frame within which the presiding officer has to decide a defection case

●        The SC held that, Ideally, the Speakers/Chairman should take a decision on a defection petition within 3 months.

●        Legislators can challenge the decisions before the higher judiciary.

 

The working of the 10th Schedule:

  • Innumerable instances of governments being “toppled” mid-term.
  • Power-politics and intra-party dissent.
  • Mass resignations (instead of defections) to force a fresh election.
  • Partisan actions by State Governors with respect to swearing-in ceremonies and the timing of floor tests.
  • Partisan actions by Speakers – refusing to decide disqualification petitions/acting in undue haste.
  • In effect, the 10th Schedule has been reduced to a nullity, governments that do not have clear majorities are vulnerable.

 

The challenging task before the court:

  • Has to adjudicate the actions of a number of constitutional functionaries: Governors, Speakers, legislative party leaders, and elected representatives.
  • It does not have the liberty of presuming dishonesty.
  • It must maintain an institutional arm’s-length from the political actors and adjudicate according to legalities.

 

SC’s judgments on defection:

  • In the Kihoto Hollohan case (1992), the SC upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
  • In the Nabam Rebia judgment (2016), the SC held that the Speaker cannot decide on a disqualification petition while a notice under Article 179(c) for the Speaker’s removal is pending.
  • In the Keisham Meghachandra case (2020),

Finish_Proceedings 

 

Conclusion

The politicians are cunning enough to find loopholes in the 10th Schedule as well as the SC judgments. Therefore, the SC should not leave any stone unturned this time.

 

Insta Links:

Anti-defection law

 

Mains Links:

The role of individual MPs (Members of Parliament) has diminished over the years and as a result, healthy constructive debates on policy issues are not usually witnessed. How far can this be attributed to the anti-defection law, which was legislated but with a different intention? (UPSC 2013)

 

Prelims Links: (UPSC 2014)

Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection?

  1. Second Schedule
  2. Fifth Schedule
  3. Eighth Schedule
  4. Tenth Schedule

 

Ans: 4