Anti-Defection Law in India

Context:

Recently, Janata Dal United leader Sharad Yadav, was disqualified from the Rajya Sabha  along with party colleague Ali Anwar.

Introduction:

• Terming his disqualification from Rajya Sabha as unfair and a conspiracy hatched by Nitish Kumar and the BJP, Sharad Yadav on Thursday said he would challenge it in the court.
• The grounds for disqualification of the member of the Parliament are mentioned in Tenth Schedule of the Constitution.

Tenth Schedule of the Constitution:

• The 10th Schedule to the Indian Constitution, popularly referred to as the ‘Anti-Defection Law’ was inserted by the 1985 Amendment (52nd) to the Constitution.
• It defines defection and disqualification in order to get rid of evil of political defection in lure of political advantage and lure of office, which certainly pose a threat on the essence of parliamentary system that is stability.
• ‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group”.

Purpose of introducing tenth schedule:

• The anti defection law was enacted to ensure that a party member do not violate the mandate of the party and in case he do so he will be disqualified from participating in the election.
• The Anti-Defection Law allows Parliament to announce those members defected who oppose or do not vote in line with party’s decision.
• The aim of Anti-Defection Law is to prevent members of Parliament to change parties for any personal motive.

Positives of the 10^th Schedule:

• Help in reducing corruption of the floor of the house to some extent, by restricting inter party movement of MPs
• Helps in maintain consensus among MPs of a single party on the floor of the house.
• Help in ensuring stability of the democracy, and preventing disruption of govt on account of individual monetary greed.
• Provides stability to the governments by banning defections.
• Lessen the burden of unnecessary election.
• Hailed as one of the most important step towards strengthening our democratic set up.

Negatives:

• Prevents individual defections and sanctions mass defection, in the name of mergers.
• Does not regulate the activities of MPs outside the House.
• Unnecessary and unexplained difference between independent and nominated members in event of joining a political party.
• Doesn’t differentiate between dissent and defection. It curbs legislature’s right to dissent.
• Often regarded as the reason behind falling standard of debates inside the House as members keep themselves away from expressing their independent view on government’s policies.
• Law discriminates between an independent member and nominated members are allowed for the same.

Grounds for disqualification:

• If an elected member voluntarily gives up his membership of a political party.
• It he votes or abstains from voting in such House contrary to any direction issued by his political party.
• If any independently elected member joins any political party.
• If any nominated member joins any political party after the expiry of six months.
• The decision on questions are to disqualification on ground of defection is referred to the chairman or the Speaker of such House, and his decision is final.
• All proceedings in relation to disqualification under this Schedule are deemed to be proceedings in Parliament or in the Legislature of a state.

Arguments in favour of Anti-Defection:

• Provides stability to the government by preventing shifts of party allegiance.
• Ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party policies.
• Promotes party discipline.

Arguments against Anti-Defection:

• Legislators often argue that defection is a matter of choice and as individuals they have a right to decide who to support.
• Several democracies have not adopted an anti-defection law, even though legislators often switch to the other side.
• In the U.K., Australia and the U.S., parliamentarians and senators often take positions contrary to their parties or vote against the party’s view, yet continue within the same party.
• Legislators should be allowed to express their own views and a defection law amounts to curtailment of the delegate’s freedom of choice.
• Anti-Defection goes against the basis of a representative democracy in which the elected representative is expected to act in public interest
• The anti-defection law breaks the link between the elected representative and his electors.

Views of some Committees:

• Dinesh Goswami Committee:

1. The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.

• Law Commission (170th Report, 1999)

1. a) Pre-poll electoral fronts should be treated as political parties under anti-defection law.
2. b) Political parties should limit issuance of whips to instances only when the government is in danger.

• Election Commission
• Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.

What reforms are needed in Anti-defection law?

Following are the key reforms needed in anti-defection law.

• The decision making power of speaker / chairman needs review
• The phrase “voluntarily giving up membership” is too vague and needs comprehensive revision.
• Political parties should limit issuance of whips to instances only when the government is in danger

The Election Commission had recommended that the decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.  A constitutional amendment vesting the power to decide matters relating to disqualification on the ground of defection with the President/Governor acting on the advice of the Election Commission would actually help in preserving the integrity of the Speaker’s office.

Way ahead:

• The decision to disqualify a legislator is contingent on the institution of the speaker.
• The partisan role of the Speaker in many States has ensured the continuation of turncoat legislators as legitimate members of the House.
• This is a good time to heed the advice of eminent constitutional experts to amend the antidefection law and rest the authority to disqualify turncoats in the hands of an autonomous body