Discuss the utility of the ‘anti-defection law’ in the backdrop of the recent development in India.

Question: Discuss the utility of the ‘anti-defection law’ in the backdrop of the recent development in India. [UPJS 2006]

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Answer

The Tenth Schedule was inserted in the Constitution in 1985 and is popularly known as the Anti-Defection Law. The Tenth Schedule, introduced by the Constitution (Fifty-second Amendment) Act, 1985 as amended by the Constitution (Ninety-first Amendment) Act, 2003 lays down the conditions regarding disqualification on the ground of defection. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.

A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament and state assemblies.

Then 91st Constitutional Amendment Act came in 2003 and brought two major changes to the anti-defection law of the land:

• First, it limited the number of Ministers that could exist in a Cabinet by putting the upper limit of 15% of the total members of the House. This move ensures that cabinet portfolios are not created and sold at whimsical terms, thus encouraging corruption and defection.

• Secondly, a ‘merger’ will gain validity in the eyes of law only if it is agreed upon by 2/3rd of the political party’s members in the house. However, changing political sides is not allowed anymore in any form as an exception to defection, and the members of the political party in the House who wish to switch would have to resign from their legislative posts and seek a fresh electoral mandate.

Therefore, we can say there are two essential utilities of the Anti-defection law:

• It provides stability to the government as it prevents the shifting of the people.
• The loyalty of the member of the party maintains as they are elected by the party’s support and trust. It also ensures party discipline.

However, the recent examples of defection in the Indian polity show that the law needs a relook in order to plug the loopholes and achieve a balance between the rights of legislators and interests of legislative stability. There are certain issues with the current defection law:

• Subversion of electoral mandates: Defection is the subversion of electoral mandates by legislators who get elected on the ticket of one party but then find it convenient to shift to another, due to the lure of ministerial berths or financial gains.
• Affects the normal functioning of government: The defection leads to instability in the government and affects the administration.
• Promote horse-trading: Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.

To deal with the above-mentioned issues, the suggestions from the Report of the Committee on Electoral Reforms, 1990 may be taken into account which suggests that it would be healthier for individual liberty as well as the quality of democracy in the country if the Whip is used only in such cases which are critical to the party’s life. Also, the decision with respect to disqualification must be made by the President/Governor on the advice of the Election Commission. This would ensure that the partisan tinge to the decision is removed as far as possible and the integrity of the Speaker’s office is preserved.

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