Anti-defection Law

Anti-defection Law

Subject: Polity

Section: Parliament

• The anti-defection law punishes individual Members of Parliament (MPs)/MLAs for leaving one party for another.
• Parliament added it to the Constitution as the Tenth Schedule in 1985. Its purpose was to bring stability to governments by discouraging legislators from changing parties.
  • The Tenth Schedule – popularly known as the Anti-Defection Act – was included in the Constitution via the 52nd Amendment Act, 1985 and sets the provisions for disqualification of elected members on the grounds of defection to another political party.
  • It was a response to the toppling of multiple state governments by party-hopping MLAs after the general elections of 1967.
• However, it allows a group of MP/MLAs to join (i.e. merge with) another political party without inviting the penalty for defection. And it does not penalise political parties for encouraging or accepting defecting legislators.
  • As per the 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’.
  • But the 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party have to be in favour of a “merger” for it to have validity in the eyes of the law.
• The members disqualified under the law can stand for elections from any political party for a seat in the same House.
• The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.
  • However, the law does not provide a time-frame within which the presiding officer has to decide a defection case.

Grounds of Disqualification:

• If an elected member voluntarily gives up his membership of a political party.
• If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorized to do so, without obtaining prior permission.
  • As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorized person within 15 days of such incident.
• If any independently elected member joins any political party.
• If any nominated member joins any political party after the expiry of six months.

Issues

• Range of Provisions:
  • The provision was not limited to confidence motions or money bills (which are quasi-confidence motions).
  • It applies to all votes in the House, on every Bill and every other issue.
  • It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government.
  • Therefore, an MP (or MLA) has absolutely no freedom to vote their judgement on any issue.
  • It makes the MP neither a delegate of the constituency nor a national legislator but converts them to be just an agent of the party.
• Eroding Legislatures:
  • The MP becomes just another number to be tallied by the party on any vote that it supports or opposes.
  • The drafting committee believed that India needed a government that was accountable, even at the cost of stability. The anti-defection bill weakens the accountability mechanism.
• Inducing Instability:
  • The political system has found ways to topple governments.
  • One way is by reducing the total membership through resignations.
    • The Constitution was amended to ensure that any person disqualified for defecting cannot get a ministerial position unless they are re-elected; the way around this has been to resign rather than vote against the party.
  • In other instances, the Speaker — usually from the ruling party — has delayed taking a decision on the disqualification.
    • This has led to strange situations such as members who continue to be part of the main Opposition party becoming Ministers.
    • The Supreme Court has tried to plug this by ruling that the Speaker has to take the decision in three months, but it is not clear what would happen if a Speaker does not do so.