THE CONTEXT: The Anti-Defection Law, introduced through the 52nd Amendment in 1985, aimed to curb political instability caused by frequent party-switching among legislators. This law was a response to rampant defections that undermined democratic mandates and governance stability, as highlighted by the “Aaya Ram, Gaya Ram” phenomenon.
NEED FOR ANTI-DEFECTION LAW:
- Rampant party-switching by legislators: In the 1967-1971 period, nearly 50% of the 4,000 legislators elected to Parliament and state assemblies defected to other parties. This led to political instability and frequent changes in governments.
- The “Aaya Ram Gaya Ram” phenomenon: Named after Haryana MLA Gaya Lal who changed parties thrice in a single day in 1967. Highlighted the unethical nature of defections and the need for legal measures.
- Undermining voter mandate: Defections nullified the will of voters who elected candidates based on party affiliations. It raised questions about the sanctity of electoral outcomes.
- Political corruption: Many defections were allegedly motivated by monetary inducements or promises of ministerial berths. This eroded public faith in the political system.
- Governmental instability: Frequent defections led to the collapse of governments and mid-term elections. Between 1967-1983, over 16 state governments fell due to defections.
EVOLUTION OF ANTI-DEFECTION LAW:
- Early attempts (1960s-70s): B. Chavan Committee (1969) recommended outlawing defections. The Constitution (32nd Amendment) Bill, 1973 and Constitution (48th Amendment) Bill, 1978 were introduced but lapsed.
- Enactment of Anti-Defection Law (1985): Introduced by the Rajiv Gandhi government through the 52nd Constitutional Amendment Act. Added the Tenth Schedule to the Constitution.
- Key provisions: Disqualification of members for voluntarily giving up party membership or voting against party directives. Exceptions for splits (if 1/3rd members left) and mergers (if 2/3rd members joined another party) through 91st amendment act.
- Supreme Court judgment in Kihoto Hollohan case (1992): Upheld the constitutional validity of the law. Ruled that judicial review was available against the Speaker’s decision on disqualification
- 91st Constitutional Amendment Act (2003): Restricted the size of council of ministers to 15% of the legislature’s strength. Barred defectors from holding ministerial positions without re-election. Merger would only be recognized if at least two-thirds of a party’s members agreed, thus preventing smaller factions from exploiting the law to defect without consequences.
- Recent developments: Supreme Court’s 2020 judgment in the Manipur case set a 3-month timeline for Speakers to decide on disqualification petitions. Instances like those in Karnataka (2019) and Maharashtra (2022) have tested the law’s effectiveness, with large-scale defections challenging its provisions.
KEY PROVISIONS OF ANTI-DEFECTION LAW:
- Voluntary Resignation from Party: A member is disqualified if they voluntarily give up membership of their political party. This does not necessarily require a formal resignation; it can be inferred from conduct, such as public criticism of the party or participation in opposition rallies.
- Voting Against Party Whip: Members who vote or abstain from voting against the party’s directive in crucial matters like confidence motions can be disqualified. However, if they obtain prior permission or are condoned by the party within 15 days, they avoid disqualification.
- Merger of Parties: Members are not disqualified if their original party merges with another, provided at least two-thirds of its legislators support the merger. This aims to prevent instability due to minor factional splits.
- Speaker’s Election: Members are allowed to cross-vote during the election of the Speaker or Deputy Speaker, ensuring these positions are filled impartially.
THE CHALLENGES:
- Delays in Decision-Making: The Speaker decides on disqualification cases, but there is no fixed timeline for these decisions, leading to significant delays. This can allow defectors to continue holding office, undermining the law’s purpose.
- Whip Communication: The internal nature of party whips often leads to disputes over whether members were adequately informed, complicating defection cases.
- Discretionary Power: The Speaker’s discretion has been criticized for potential bias, as they often belong to the ruling party. This has led to calls for independent tribunals to handle defection cases.
- Judicial Review: While decisions are subject to judicial review, courts have been reluctant to intervene before the Speaker’s decision, limiting checks on potential abuses.
- Lack of Distinction Between Dissent and Defection: The law does not adequately differentiate between legitimate dissent and defection, which can suppress healthy debate within parties.
THE WAY FORWARD:
- Time-Bound Resolution of Defection Cases: Implementing a fixed timeline for the Speaker or Chairperson to decide on defection cases would address delays that undermine the law’s effectiveness. This proposal aims to ensure timely justice and prevent defectors from exploiting procedural delays to retain their positions.
- Public Notification of Party Whips: Publicly notifying party whips through official channels like newspapers or electronic communication would enhance transparency. This reform would help ensure that legislators are adequately informed about party directives, reducing disputes over whip violations.
- Dinesh Goswami Committee (1990): Suggested limiting disqualification to cases of voluntary resignation and voting against party directives in confidence motions. It also recommended independent tribunals for adjudicating defection cases.
- Hashim Abdul Halim Committee (1994, 2003): Focused on improving legislative discipline and suggested reforms to streamline the anti-defection process.
- Law Commission Reports (170th, 255th): Recommended removing exemptions for splits and treating pre-poll alliances as single entities under the law. These reports emphasized the need for clearer definitions and stricter enforcement mechanisms.
- National Commission to Review the Working of the Constitution (2002): Advocated for reforms to strengthen parliamentary democracy, including revisiting the role of the Speaker in defection cases to ensure impartiality.
- Keisham Meghachandra Singh Case (2020): The Supreme Court suggested replacing the Speaker’s role with an independent tribunal to decide disqualification cases under the anti-defection law. This recommendation arose from concerns about potential bias, as Speakers often belong to ruling parties.
- Bipartisan Approach: A bipartisan approach is essential for implementing reforms to the anti-defection law. Cross-party consensus can lead to robust changes that address current challenges without partisan bias.
THE CONCLUSION:
Despite its intent to stabilize governments and uphold democratic integrity, the Anti-Defection Law faces challenges such as delays in decision-making and potential biases. Experts and committees advocate for reforms like independent tribunals and time-bound resolutions to enhance its effectiveness and align it with initiatives like “One Nation, One Election”.
UPSC PAST YEAR QUESTION:
Q. The role of individual MPs (Members of Parliament) has diminished over the years and as a result healthy constructive debates on policy issues are not usually witnessed. How far can this be attributed to the anti-defection law, which was legislated but with a different intention? 2013
MAINS PRACTICE QUESTION:
Q. Discuss the effectiveness of the Anti-Defection Law in maintaining political stability in India. Critically analyze the role of the Speaker in the implementation of this law.
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