ANALYSIS OF ANTI-DEFECTION LAW IN INDIA

-Shreya Singh

ABSTRACT:

What good is a democracy that can be brought down by a handful of people? Such is the effect of political defections. we live in a country that claims to be world’s biggest democracy and still malpractices such as these strips all the power of the public in exchange of personal benefits. This paper aims at bringing the issue of Defections and what we consider the counter measure of this problem, the Anti-Defection Law in the thoughts of the reader.

This is about the effectiveness, strengths, weaknesses, loopholes and the modern instances of the cases of defection that had happened in Hodu. This will dig upon the questions, whether our countermeasures are truly effective or, if they are just a new tactic for the corrupt to run their errands by using the loopholes? Are there any amendments that still await to make this moral construct truly impenetrable by the cloudy doings of the politicians?

KEYWORDS:

Anti-Defection, Democracy, amendments, loopholes, effectiveness, modern instances of defections, countermeasures, politics, power, politicians.

INTRODUCTION:

The anti-defection laws were not always a part of our constitution but as we may say about the mankind that they are fickle, hypocritical and greedy of gain. These were enacted in India as a means of preventing such political activities that might disturb the conventional clean electoral procedures, which enables us to call this country a Democratic one. But it is not a hypothesis that whole of the political scene are in the hands of control freaks. A legislature that stands upon the agendas of men was destined to be prone to instability, as the agendas are as much of a variable as human nature itself. We have experienced this phenomenon, when an entire elected government is brought down by the mass defection of the members, effectively denying the decision of the public, and thereby rendering the commoners powerless. The Anti-Defection laws were a safeguard to cope with the loopholes of Indian politics, and provides stability to the government. As it is a law of man, this was no exception from having multiple cons among the pros. It was observed that as a secondary effect, the law was being used as a bridle. The law forces the party members to follow the party’s whip irrespective of their opinion if they intend to keep their seats in the legislature, therefore the decision-making process is in the hands of a few figurehead members of the party. A disturbance in the balance of power along with the loss of accountability of the elected representative constituted a new challenge that surfaced with the execution of anti-defection law.

PROVISIONS OF ANTI-DEFECTION LAW:

The 52nd Amendment Act, 1985 lead to amendment in Article 101, 102, 190 and 191 of the Constitution to provide the grounds for vacation of seats for the disqualification of the members; and also inserted Tenth Schedule.

The legislator can be disqualified by the chairperson or the speaker, if the party member in question gives up his membership or votes contrary to the party/doesn’t vote at all in the house. This is also applicable to member who had joined the party post-election and the MLAs who joined the party after 6 months of being elected as an MLA. There are exceptions like in the cases of merger. Either defecting to the new party or standing out as a separate group in retaliation of the merger (1/3rd of the original party members need to be a part of the “split”) aren’t considered as defections.

If the speaker or chairman itself has been convicted of defection then the decision rests in the hands of a member who is elected by the House through voting.

LOOPHOLES OF THE LAW:

It is quite ironic that, the Anti-Defection law can be the cause of defections itself. This contradictory nature is the consequence of the loopholes, which are used quite conveniently in modern politics.

  • The power of disqualification resides with the speaker or chairman, but there is always an uncertainty, whether the knowledge and legal aptitude that is required for making the right decision is present or not.
  • Since Article 136 bars the involvements of the judiciary, it can have multiple questionable outcomes in the light of the previous point.
  • The conscience of the members is compromised in order to gain the obedience of the party member that may lead to a despotic control over the party by a few key members.
  • There is a concentration of power within the party.
  • Although, Rule 2(1) (a) of the Tenth Schedule mentions that the member of the House would be disqualified from the party if he voluntarily gives up his membership of the political party, it does not specify as to what exactly accounts as a voluntary give-up.
  •  Rule 4 of the Tenth Schedule provides some exceptions from disqualification of members in cases relating to mergers. There are some loopholes in the law, which if not treated could provide ground for defections.

RECENT CASES OF DEFECTION:

There had been enough cases of defections in India recently, studying these would help us to realize the working of this malpractice.

The case of Rajasthan:

On the face, the Rajasthan crisis can be described as a reflection of the inadequacies in the anti-defection law.

The case is about a rogue group of MLAs and their leader Sachin Pilot, who were said to have committed defection after congress won the Rajasthan election in July of 2019, and elected Ashok Gehlot as the chief minister. They were accused of being bribed by the opposing Bharatiya Janata Party with the intent of dissolving the legislature.

Sachin Pilot and the MLAs had challenged the first ground under clause 2(1) (a) in the high court, asserting that the provision cannot be so widely interpreted in a way that freedom of speech and expression of a member of the House is jeopardized.

They have, therefore, demanded that clause 2(1) (a) be declared ultra vires (outside the scope of) the basic structure of the Constitution, and the freedom of speech and expression under Article 19(1) (a).

“Mere expression of dissatisfaction or even disillusionment against the party leadership cannot be treated to be conduct falling within the clause 2(1) (a) of the Tenth Schedule of the Constitution of India,” their petition had said.

The speaker C.P. Joshi, who himself was a congress politician initiated the disqualification procedures against “rebels”. While the Rajasthan HC prepared their own pleadings, the speaker moved to Supreme Court to challenge the decision of high court.

However, the apex court stayed the issue, as it considered the case would turn out as a suppression of dissenting voices of the MLAs.

The case of Madhya Pradesh:

As Jyotiraditya Scindhia resigned from the party, a total of 22 rebelled against the congress government in March of 2020. Consequences of this were the fall of the Congress government followed by the coronation Shivraj Singh Chauhan as the C.M. 14 of these MLAs were appointed in the minister council by Chauhan, making the Anti-Defection Law nothing more than a joke.

Since the MLAs had resigned en bloc the grounds for the Anti-Defection Law are nowhere to be found, this became the cause of a split in the party and fall of a government in Rajasthan.

The case of Haryana:

Arguably, the most eccentric case of defection in India, and certainly the one with the most impact. The case is about Gaya Lal, a politician from Haryana who had changed his party thrice, in the same day!

The case was the topic of debates, with a common saying going around the public which was “Aaya Ram Gaya Ram”.

 Although the case was of 1967, it provides the insights that show the need of a strict law against Defections. As a result of which, the Tenth schedule was included in the constitution in 1985.

CONCLUSION:

In order to run up against of political hurdles in India, the Tenth schedule was inserted in the Indian constitution by 52nd amendment, 1985by the Rajeev Gandhi government. The grounds on which the legislature may be disqualified by the presiding officers were laid down based on the petition by any other member of the House.

This 35 year old law has certain caissons due to which the political crisis has raised in India. This calls for a deep reconditioning that will provide the law with the tools to take on these new challenges.  The political critics had analyzed the situation multiple times. It is a fact that the law is old but not obsolete, still it isn’t that much effective either. There could be multiple reforms to the law that may prove vital for the anti-corruption tactics, such as-

  • The speaker or the chair-man, whosoever shall take the decision must be provided with all the knowledge required to make it.
  • There should be safeguards as to whether the decision maker has made an unbiased decision or not.
  • The Judiciary should be allowed to intervene when the case gets too complicated.
  • The power within the party should be honestly divided. The concept of the party whip should be confined to the manifesto only.
  • Since, the law is used to trade individual thoughts with unquestioned obedience by the party heads; the internal politics that happens within a party should be a transparent process that may allow each and every member to present himself and his ideology to avoid conflicts.

Even though there is scope of improvement and the law itself has been fruitful, yet the practices such as these can only be abolished if our politicians take their notions of personal gain to the back foot while keeping the pious soul of democracy intact by keeping the political scene clean. This however is a pretty hard goal to achieve, yet it is one that we aspire of achieving and therefore, work towards it.

Image Source- https://www.iasexpress.net/anti-defection-law-tenth-schedule-upsc/

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