Anti-defection law: No need for Amendment

The central government does not see the need to make changes to the anti-defection law.

A member of Rajya Sabha has raised a question on Anti-defection law, whether the anti-defection law in its present form is adequate to stop induced defections.
The question is asked in the backdrop of recent political developments in Maharashtra.

Law Minister replied to the Rajya Sabha that is no need to amend the provisions of the anti-defection law as they have stood the test of time and judicial scrutiny,

The Tenth Schedule of the Constitution contains the anti-defection law
The anti-defection law penalises individual Members of Parliament (MPs)/ Member of Legislative Assembly (MLAs) who switch parties.
Parliament included it as the Tenth Schedule to the Constitution through the 52nd Amendment Act of 1985.
Its goal was to prevent legislators from switching parties to bring stability to governments.
However, it permits a group of MPs or MLAs to join with (i.e., merge with) another political party without exposing them to the defection penalty.
As per the 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’.
However, this was altered by the 91st Constitutional Amendment Act of 2003, and now, for a “merger” to be considered legal, at least two-thirds of the members of a party must be in favour of it.
The Chairman or Speaker of that House is asked to make decisions about defection-related disqualification, and those decisions are then subject to “Judicial review.”

Affects the normal functioning of government.
- It creates instability by toppling already elected governments and breaking the implementation of policies.
Promote horse-trading.
- Defection also promoted horse-trading of legislators, which goes against the mandate of a democratic setup.
The situation of lawlessness in the states.
- Different political parties fighting for power create a scenario of lawlessness and breaking of command hierarchy.
Affects dignity.
- Political defection destroys the institutional dignity of political parties, and people would lose confidence in parties and the electoral process.

Parliamentary and representative democracy is being undermined.
- After the Anti-defection law was passed, the MP or MLA was forced to vote by the political party’s manifesto and was not allowed to do otherwise.
Presiding officer’s Controversial Role.
- The law does not explicitly state the timeframe for the House Chairperson’s or Speaker’s decision in anti-defection matters.
- Some cases take six months, and some even three years.
Problem with merger provision
- The provision tends to safeguard the members of a political party where the original political party merges with another party subject to the condition that at least two-thirds of the members of the legislature party concerned have agreed to such a merger.

Make the president/Governor the decision maker.
- Make the president/Governor the decision maker concerning disqualification subject to binding advice from the Election Commission on the lines of disqualification based on the Representation of Peoples Act’s provisions regarding the office of profit.
Dinesh Goswami Committee recommendations.
- The disqualification should be only for cases such as
  - Member giving up the membership of his political party voluntarily.
  - Member voting or abstaining from vote as opposed to party directions.
Independent authority to deal with disqualification.
- In Hollohan’s judgment, Justice Verma said that the Speaker’s tenure is dependent on the continuous support of the majority in the House. Therefore, he does not satisfy the requirement of such independent adjudicatory authority.
- Therefore, a separate authority is required to handle defection situations.

Pic Courtesy: freepik

Content Source: The Hindu