The Failure Of Anti-Defection Laws In India

Key Takeaways

• A defector is someone who abandons adherence to one state in lieu of allegiance to another in a manner that the first state considers illegal.
• The 10th Schedule of the Indian Constitution, commonly known as the 'Anti-Defection Law,' was added by the 52nd Amendment to the Constitution in 1985.
• The law provides for the protection of defecting members if two-thirds of the parliamentary party's members combine with another political party.

Introduction

In politics, a defector is someone who abandons adherence to one state in lieu for allegiance to another in a manner that the first state considers illegal. Legislators defect in a number of democracies. They may jeopardize the stability of the government, which is reliant of the dominant party's elected MPs and/or coalitions of those elected to represent other parties. It is argued that such uncertainty amounts to a violation of the people's mandate as expressed in the most recent preceding election. Despite the Tenth Schedule being placed into the Constitution in 1985, the practice of MPs changing political parties throughout their tenure continues unabated in Indian legislatures.

Former Vice President Hamid Ansari, the ECI, and the Supreme Court have all criticized the anti-defection legislation for failing to dissuade defection.Because of frequent defections, effective governance suffers and outright corruption in the form of horse trading thrives. Prior to the implementation of the anti-defection law, both the union government and the governments of certain states and territories had faced perceived instability as a result of lawmakers switching political allegiances.

Historical Background to the Anti-Defection Law

In Haryana in 1967, an MLA called Gaya Lal switched parties three times in a single day, coining the expression "Aaya Ram Gaya Ram”. Between 1957 and 1967, the Congress (I) party was the only one to benefit from defections. It lost 98 members while gaining 419. This arrangement provided Congress (I) with a firm grip on power. Roughly 3,500 representatives were elected to legislative assemblies of several states and union territories in the 1967 elections; approximately 550 of those elected MPs later defected from their respective parties. Political parties agreed that an anti-defection statute was required to prevent such political defections.Rajiv Gandhi, India's then-Prime Minister (1984-1989), suggested legislation to eliminate the problems of defection.

The 10th Schedule of the Indian Constitution, commonly known as the 'Anti-Defection Law,' was added by the 52nd Amendment to the Constitution.The statute outlined the procedure for disqualifying an elected member for the remainder of their term if they defected by resigning or by rejecting the party leadership and missing a vital vote. However, the legislation permitted political party mergers and splits, enabling one-third of the party's members to split and two-thirds of other members of the party to merge. Following protracted deliberations, the Lok Sabha and Rajya Sabha both unanimously endorsed the measure on January 30 and 31, 1985, respectively.

An anti-defection statute requires elected members to be disqualified if they transfer political parties in pursuit of executive office or other benefits. The goal was to establish political stability and hold legislators accountable.

Objectives of the Law

The primary objectives of passing the amendment Act were as follows:

• To reduce lawmakers' susceptibility to transfer loyalties from one party to another, consequently facilitating regime change and the establishment of new ones.
• To combat political corruption, which was viewed as a crucial first step in combating other types of corruption in the country.
• To improve democracy by bringing stability to elections and guaranteeing that the Government's legislative initiatives are not endangered by a defecting lawmaker.
• To make parliamentarians more accountable and committed to the organizations with whom they were affiliated at the time of their election.

Features of the Law

Many people feel that their party affiliation is crucial to their electoral success. The law addresses three types of circumstances.

1. When lawmakers elected on the ticket of a political group deliberately renounce their membership in that party or vote in the legislature against the intentions of the party.
2. When an MP/MLA who was elected independently later joins a party.
3. When newly elected members join a political party after six months in the House.

Breach of the law in any of these instances can result in a legislator being charged with defection. However, it permits a group of two-thirds of MPs/MLAs to join (i.e., combine with) other political groups without incurring the defection penalty. The statute allows the Presiding Officer of the legislature to reject any defector on the basis of a petition by another member. A representative of a House is not disqualified under the legislation if "his original political party unites with another political party." Disqualification questions based on defection are addressed to the Speaker or the Chairman of the House, whose judgement is final. All processes relating to disqualification under the Schedule are regarded as procedures in Parliament or the Legislature of a state, as the case may be. Any individual elected as Chairman or Speaker has the right to withdraw from his party and rejoin it if he abandons that position.

Source of the Dispute

The law presented a multitude of loopholes which allowed misuse. These included the merger issue. The law provides for the protection of defecting members if two-thirds of the parliamentary party's members combine with another political party. The provision has generally been abused, owing to the evident political predisposition of the speakers serving as tribunals, as seen by how disqualification petitions are handled.

The statute does not provide a time limit for the presiding officer to rule on a defection case. While voting against the party whip is a fairly clear kind of defection, the other form of defection has proven to be a subject of contention and litigation. A member willingly resigning does not mean just writing a letter of resignation and legally joining another party. It is frequently a conclusion formed by the party that loses a member to another based on the legislator's behavior. The Supreme Court has also found that a person's actions might be used to infer "voluntarily giving up membership."

Even if the terms of merger ex-facie did not occur, the speaker of the assembly leaves the proceedings going such that the tenure of the assembly ends before the procedures under the Tenth Schedule against certain ex-facie defectors are completed. There have been several occasions where a speaker has abused this power by delaying a decision on the matter of a defecting MLA until the conclusion of the legislative session. Parties sometimes sequester MLAs in resorts to keep them from switching allegiances or being abducted by a competing party.

Issues and Criticisms of the Law

Defection is the subversion of election mandates by lawmakers who are elected on the platform of one party but later decide to switch to another due to the temptation of cabinet slots or financial benefits. Despite the fact that the Election Commission of India recognizes political parties at both the national and regional levels, the legislation does not specify whether the original political party refers to the party at the regional or national level. Following the implementation of the Anti-defection law, the MP or MLA must blindly follow the party's instructions and has no flexibility to vote in their own opinion.

The chain of responsibility has been disrupted as a result of the Anti-Defection statute, which holds MPs solely accountable to their political party. The anti-defection statute is solely to blame for suppressing discussion in the Parliament and state legislatures. The defecting MLAs have figured out a way around the Tenth Schedule constraints. They withdraw from the party rather than formally "crossing the floor" or voting opposing their party in a confidence motion. This reduces the party's power in the House, and the government collapses. When by-elections are conducted a few months later, the same MLAs run on the opposing party's ticket and are re-elected to the assembly. This is, without a doubt, desertion except in the most formal sense. The anti-defection statute was amended by the 91st Constitutional Amendment Act of 2003, which made an exemption for anti-defection verdicts.However, the amendment does not acknowledge a'split' in a legislative party, but rather a 'merger.'

It has been widely reported that large sums of money are offered to MLAs in order for them to defect from their parties and bring the government down. This is made possible by the availability of electoral bonds, which allow political parties to receive unrestricted and anonymous funding. Over the previous two years, massive quantities of money have been contributed to political parties through the electoral bond programmers.Unfortunately, for the past two years, a petition challenging the legitimacy of the electoral bond scheme has been pending before the Supreme Court. Despite numerous election cycles, the Supreme Court has not ruled on it.

Conclusion

However, the amendment does not acknowledge a'split' in a legislative party, but rather a 'merger.' The anti-defection law's laudable goal is to ensure government stability. So, it can be understood that if it was restricted to votes deciding a government's fate. However, the law empowers political parties to dismiss legislators for going against the party the legislature and engaging in anti-party behavior outside of it. Parties have also used the anti-defection statute as part of a toolbox to undermine their opponent or topple a government throughout the years. If a political party has fewer members in a state, a larger party can entice two-thirds of its MLAs to join it – a method authorized under the anti-defection statute.

Some observers have suggested that the law has failed and that it should be repealed. Former Vice President Hamid Ansari has proposed that it only be used to save administrations from no-confidence votes. The Election Commission has proposed that it be the determining authority in situations of defection. Others have suggested that defection petitions should be heard by the President and Governors.

To summarize, the anti-defection statute must be strengthened. More importantly, the legally sanctioned power of substantial money in politics must be limited. If these actions are not implemented, Indian democracy risks fast devolving into a charade.