How Anti-Defection Law is manipulated?

Source: The post How Anti-Defection Law is manipulated? has been created, based on the article “Abhishek Manu Singhvi writes: Why the legal architecture of defection must be reimagined” published in “ Indian express” on 6th March 2024.

UPSC Syllabus Topic: GS Paper 2-polity- Parliament and State Legislatures – structure, functioning, conduct of business, powers & privileges and issues arising out of these.

News: The article discusses the problems with India’s 10th Schedule of the Constitution, highlighting how it fails to prevent political defections and manipulation. It suggests abolishing this Schedule and adopting simpler laws to address party-switching by politicians. How Anti-Defection Law is manipulated ?

What is the 10th schedule?

The Tenth Schedule, added to the Indian Constitution in 1985, is an anti-defection law. It was introduced to address political instability caused by frequent defections of legislators during the 1960s and 70s.

For more information read Article 1, Article 2

What are the judiciary views on 10th schedule?

Manipur Judgment: The Supreme Court set a three-month time limit for Speakers to decide disqualification petitions, emphasizing timely decisions.

Kihoto Hollohan Case: Established that the 10th Schedule is not an unreasonable restriction on free speech and that the Speaker’s order is subject to judicial review.

Ravi Naik and Balasaheb Patil Cases: Defined ‘voluntary giving up of membership’ broadly, not limited to resignation but inferred from various forms of conduct. These include remaining incommunicado, failing to attend party meetings, or engaging in activities against the party’s interest.

Vishwanathan Case: Ruled that an expelled member remains part of their old party unless joining a new one, avoiding immediate disqualification.

Shiv Sena Case: Mandated that the Election Commission should use the organizational test to determine a party’s real representation, not just legislative majority.

How are Defections manipulated?

Pre-Defection Tactics: Potential defectors often write a no-confidence letter against the Speaker before defecting. They often invoke a loosely drafted paragraph in Nabam Rebia case as justification.

Speaker’s Bias: The Speakers, typically from the ruling party, show bias. They delay or speed up disqualification decisions based on the defector’s new affiliation, affecting opposition and ruling party defectors differently.

Election Commission and Party Symbols: Defectors may file a claim with the Election Commission (EC) to be recognized as the real party, seeking the party symbol. The EC often uses a legislative majority test, which benefits defectors.

Fast-Tracked EC Hearings: While the Speaker delays disqualification disputes, the EC hearings are fast-tracked under influence, further legitimizing defections.

Engineered Resignations: Opposition parties sometimes engineer resignations in the ruling party, promising lucrative positions to defectors in a new government.

What should be done?

Abolish the 10th Schedule: Replace it with a simpler law stating anyone changing party affiliation must resign and seek re-election.

Prohibit Minister ship Without Re-Election: Restrict defectors from holding ministerial positions unless re-elected, to discourage opportunistic defections for personal gain.

Eliminate Need for Speaker’s Adjudication: Simplify the system to remove the Speaker’s role in disqualification, addressing the issue of bias and partiality.

Select a Neutral Speaker: If a speaker is still required, establish a convention where all political parties agree on a neutral Speaker before elections and do not contest in their constituency, ensuring impartiality and fairness.

Question for practice:

Examine the tactics employed to manipulate political defections in India.