Antidefection law needs to be reformed: Venkaiah
GS 2, Indian Polity.
Context:
- Stating that there was no clarity in the law about the time frame for the action of the House Chairperson or Speaker in anti-defection cases, The Vice President of India says that some cases are taking six months and some even three years. There are cases that are disposed of after the term is over. He believes that these anti-defection cases can be disposed of in three months.
Anti-Defection Statute:
Origin:
- Ram Aaya Gaya Ram became a common term in Indian politics after Haryana MLA Gaya Lal switched parties three times on the same day in 1967.
- The anti-defection statute attempted to prohibit such political defections as may occur as a result of official remuneration or other similar circumstances.
Schedule No. 10:
Constitutional foundation: The 52nd Amendment Act of 1985 added the Tenth Schedule to the Constitution.
Intent of Anti-Defection Law-
The principal goals of the law were:
- To combat political corruption, which was viewed as a vital first step toward tackling other types of corruption in the country. According to U. C. Aggarwal, the then-Central Vigilance Commissioner, the political arena must be free of corruption in order to urge those at lesser levels to do the same.
- To improve democracy by giving stability to politics and guaranteeing that the Government’s legislative programmes are not jeopardised by a defecting lawmaker.
- To make parliamentarians more accountable and loyal to the parties with whom they were connected at the time of their election. Many people feel that their party affiliation has a significant effect in their electoral success.
The Chavan committee proposed that a member who switches parties for monetary gain or other types of greed, such as a promise of executive post, be not only expelled from parliament but also prevented from running for office for a certain period of time.
In 1985, Parliament inserted it to the Constitution as the Tenth Schedule. Its goal was to keep governments stable by deterring MPs from switching parties.
The Tenth Schedule, often known as the Anti-Defection Act, was included into the Constitution by the 52nd Amendment Act of 1985, and it provides for the disqualification of elected members for defecting to another political party.
It was a reaction to the overthrow of various state administrations by party-hopping MLAs following the 1967 federal elections.
It does, however, permit a group of MPs/MLAs to join (i.e., combine with) another political party without incurring the defection penalty. Furthermore, political parties are not penalised for soliciting or tolerating defecting legislators.
According to the 1985 Act, a ‘defection’ by one-third of a political party’s elected members was considered a ‘merger.’
However, the 91st Constitutional Amendment Act of 2003 modified this, and now at least two-thirds of a party’s members must be in favour of a “merger” for it to be legal.
Members who are disqualified under the legislation can run for a seat in the same House from any political party.
The decision for disqualification on the basis of defection is reported to the Chairman or Speaker of such House, and is subject to ‘Judicial review’.
However, the statute does not provide a time limit within which the presiding officer must rule on a defection matter.
- The anti-defection statute incorporated in the Indian Constitution by the addition of the Tenth Schedule consists of eight paragraphs. The following is a quick description of this Schedule:
- 1st Paragraph: This paragraph contains the part on interpretation. It defines several legislative terminologies such as house, legislature party, initial political party, and so on.
- 2nd Paragraph: Disqualification on the Grounds of Defection- A member of any state or central legislature may be excluded from membership if he:
- willingly resigns from such political party.
- defies his political party’s directives and votes or does not vote in the legislature.
- switches political parties after the election.
- if a nominated member joins a political party after six months of being a member of the legislature.
- 3rd Paragraph: Following the 91st Amendment in 2003, this clause was removed.
- 4th Paragraph: Disqualification on the basis of defection is not applied in the Event of a Merger
In the event of a merger, member disqualification does not apply. Provided, however, that this merger with or into another party requires the approval of at least two-thirds of its lawmakers. In such a circumstance, neither the member who decides to combine nor the person who remains in the original party may be disqualified for desertion.
Paragraph 5: Exemption.
This clause gives immunity to the speaker, chairman and deputy chairman of several legislative chambers from the disqualification on the ground of defection.
Paragraph 6: Decision on the Question of Disqualification Due to Defection.
If an issue about a member’s disqualification arises, it is addressed to the chairman or speaker of the legislative house, whose judgement is final and binding.
Paragraph 7: Court Jurisdiction Bar.
The provision of this Schedule prohibits any court from having jurisdiction in the instance of a member’s disqualification. However, under Articles 32, 137, and 226 of the Indian Constitution, this clause is not applied or the court is not intervened.
8th paragraph: Rules.
This section of the Schedule gives the Chairman and Speaker the authority to create rules governing the disqualification of members of their respective houses of the legislature.
The Benefits of Anti-Defection Legislation
The following are the benefits of anti-defection legislation:
- It keeps the government stable by limiting the movement of party ties.
- It assures that the candidate will be loyal to his party and that residents would vote for him.
- It also encourages party discipline.
- It permits political parties to unite without disqualifying a member due to desertion.
- It also aids in the reduction of political corruption by limiting party switching.
- It lays out the procedure for persons who defect from one party to another.
What exactly is the anti-defection statute, and why is it in place?
- Individual MPs/MLAs who desert from one party to another are penalised under the anti-defection statute. It enables a group of MPs/MLAs to join (i.e., combine with) another political party without incurring the defection penalty. Furthermore, political parties are not penalised for soliciting or tolerating defecting legislators.
Has anyone offered any recommendations to enhance the law?
- Some observers have suggested that the law has failed and that it should be repealed. Former Vice President Hamid Ansari has proposed that it only be used to save administrations from no-confidence votes. The Election Commission has proposed that it be the determining authority in situations of defection. Others have suggested that defection petitions should be heard by the President and Governors. In addition, the Supreme Court ruled last year that Parliament should establish an independent panel led by a retired judge of the higher judiciary to decide defection cases quickly and impartially.
Several anti-defection recommendations have been made:
Dinesh Goswami Committee: Recommendations include limiting disqualification to circumstances such as:
- Member willingly resigns from his political party membership.
- Members who vote or abstain from voting in opposition to party directives.
170th Report of the Law Commission:
- Remove the exception for splits and mergers.
- Under the 10th Schedule, consider the pre-poll electoral fronts to be one party.
- Whips should be issued by parties only in crucial situations or votes.
The Commission on Elections:
- Make the President/Governor the decision-maker on disqualification, subject to binding advice from the Election Commission on the lines of disqualification based on the requirements of the Representation of the Peoples Act relating the Office of Profit.
