7 PM Editorial |Overcoming The Malaise of Defections|22nd July 2020

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Overcoming The Malaise of Defections

Introduction:

Political developments in Rajasthan have brought focus on political defections and anti defection law. This should be seen in the broader context of political events in Madhya Pradesh, Karnataka, Manipur and other states, where legislators have changed parties.

Emergence of ‘resort politics’ where legislators are herded to protect them from defections shows that malaise of horse trading is alive in Indian political system. This is a constitutional sin which results in the public losing trust in the political system. This has continued despite anti defection law of 1985(10th Schedule of constitution) providing for disqualification of defectors.

Role of all stakeholders involved – Speaker, Governor, legislators, opposition party, ruling party- is suspect in upholding the spirit of the anti defection law. They are using loopholes in the legal provisions to continue this moral hazard.

Provisions of 10th Schedule:

• Disqualification:
  • For a legislator elected on a party ticket, voluntarily giving up membership of party or defying party whip on a vote will result in disqualification. If such action is condoned by the party, then no disqualification will be done
  • Independent legislators will be disqualified for joining any party
  • Nominated legislators can join a political party till 6 months after nomination but not after. If done after 6 months they will be disqualified.
• Exceptions:
  • Merger where ⅔ rd members of a party defect will not result in disqualification
  • Speaker or chairman can switch parties if the post is demitted.
• Deciding authority: Presiding officer of the house whose decision is final

Circumventing the provision of 10th schedule:

Modus operandi to circumvent the legal provisions have evolved. These are:

• Partisan behavior of the speaker: If defection is to the ruling party, then the speaker(deciding authority) is seen delaying the anti defection proceedings and judgments. The Supreme court(SC) has highlighted this in the Manipur case(2020) where the speaker’s decision was pending since 2017. Such instances are seen in multiple states – Tamil Nadu, Andhra Pradesh etc.
• Promising ministership to destabilize ruling government: To topple ruling government, engineered defections or resignations of legislators are used.Ministership is promised to defectors by the opposition party. 10th Schedule prohibits appointment as ministers for those who are disqualified until reelected. A parliamentary standing committee notes that this is made useless by
  • Defectors resigning from original parties and hence not coming under disqualification. Then they can be appointed as ministers for 6 months before they must be reelected in byelections. This was seen in Karnataka
  • Defectors can be nominated to Rajya Sabha and then be made a minister.
• No confidence motions against speakers: Defectors file such motions to stall proceedings of anti defection law. In the Nabam Rebia case, SC cautioned speakers already facing prior and serious pending no-confidence motions from deciding disqualification issues against their accusers. This is being misinterpreted as prohibition on deciding cases rather than caution.
• Misuse of position of governor: Governor directing a floor test before anti defection proceedings are completed results in destabilizing government. This prevents the speaker from discharging his/her functions under 10th Schedule.

Plugging loopholes in 10th Schedule:

• Supreme court in Manipur case 2020has suggested following which need to be implemented:
  • Replacing presiding officer as deciding authority with a tribunal or external mechanism to ensure impartiality
  • Decision in defection cases must generally be done in 3 months. SC can compel speaker in case of undue delays
• Abolishing exceptions present in 10th Schedule: Merging of parties(2/3rd members defect) should be removed as an exception. All anti party activities(inside and outside the house) should result in disqualification.
• Prohibiting appointment as minister: Any one who resigns or is disqualified anti defection law must be prohibited from appointment as minister for 6 months or 1 year.
• Electing impartial speakers: Adopting British norm of unanimously selecting the speaker before elections by all major parties and not contesting against such pre-elected speaker. This improves the political and moral authority of speaker.
• Restricting the governor’s role to prevent interference in affairs of the house.

Conclusion:

Defections as political tools of power must be prevented comprehensively. Legal changes must be brought in the 10th Schedule to plug the loopholes. This must be done expeditiously to protect the faith of the public in the constitutional democracy of India.

Source: https://www.hindustantimes.com

Mains Question:

1. What are provisions of anti defection law? Are they successful in preventing defections in India? Suggest measures needed to uproot the malaise of opportunistic defections in India?[15 marks, 250 words]