Mentor’s Comment

1. Give an introduction to the law.
2. List some incidents related to ineffective working and also of success.
3. give positives of law
4. give shortcoming
5. Suggest reforms that are required.
6. Conclude

Answer:

The Tenth Schedule of Indian Constitution is popularly known as the Anti-Defection Act. Original constitution had no such provisions and it was introduced through 52nd Amendment in 1985. The main intent of the law was to deter “the evil of political defections” by legislators motivated by the lure of office or other similar considerations.

Main features of the Anti-Defection Law
Articles 102 (2) and 191 (2) deals with anti-defection.
The intention of the provision is to check the corruption/horse trading in parliament and to check the popular phenomenon “Aaya Ram Gaya Ram “ in the Indian polity which started in 1960’s.
The law disallows MPs/ MLAs to switch parties after elections, make the members follow the whips issued by their party.
It also applies to a nominated member if he/she joins a political party after 6 months of nomination and to an independent candidate if he/she joins a party after the election.
The grounds for disqualification under the Anti-Defection Law:
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 authorised to do so, without obtaining prior permission.
A person shall not be disqualified if his original political party merges with another, and:
He and other members of the old political party become members of the new political party, or
He and other members do not accept the merger and opt to function as a separate group.
This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.
The decision on questions are to disqualification on ground of defection is referred to the chairman or the Speaker of such House, and his/her decision is final.

How it has stabilised the Indian Democracy:
Prevented defection: The evil of political defection is a national concern and the 10th schedule and related amendments have been useful in combating it to a certain extent. For example 10 MPs were disqualified after the trust vote of July 2008; Four cases were made against Rajya Sabha MPs and all were upheld.
Constitutionally valid: Five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachillhu and others) held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.
The argument that it curtails the legislative activity of private members or absence of adequate thinking/research is countered by the presence of various standing committees which streamlines legislative business in the legislature.
Provided unity in the party: It helped in maintaining consensus among MPs of a single party on the floor of the house and ensuring stability of the democracy, and preventing disruption of government on account of individual monetary greed.
More stable Government: It provides stability to the governments by banning defections and lessen the burden of unnecessary election.

Shortcomings and failure:
Curtailment of legislator’s right to vote according to his conscience, convictions, common sense and constituency concerns.
Unfortunate trend that has recently manifested itself is the use of House majorities to get even Private Members’ Bills defeated at the introduction stage.
Disincentivising lawmakers from serious thinking, researching or even rifling for best practices to incorporate into legislation that is before the House for consideration and focus their energies on procedural matters.
The present provisions empower the Speaker or chairperson of the legislative body to determine the veracity of the complaint filed by political parties for disqualification. Any unfair decision may demean the dignity of the post.
Recently the Chairman of the Rajya Sabha disqualified two Janata Dal leaders from the house based on the allegation that indulging in anti party politics, they had “voluntarily” given up their membership of the party (which is not synonymous to resignation as per the Supreme court orders).
Chairman’s decision here raises questions about just how much dissent is permitted in the Indian political system.
In his order disqualifying MPs from Janata Dal, Chairman argued that any dissent from the party line has to be internal and behind closed doors – disagreement in public is a sign of defection
Allegations of legislators defecting in violation of the law have happened recently in many states across India, including Andhra Pradesh, Arunachal Pradesh, Goa, Manipur, Nagaland, Telangana and Uttarakhand.
The Speaker of a House does not have the power to review his own decisions to disqualify a candidate.
The law currently does not apply to pre-poll alliances.
It also falls short to impose additional penalties on defectors.
The problem is heightened as the law does not come with a sunset clause.

How to strengthen the loose ends of Anti-Defection law to make democracy more stable:
The Goswami Committee, the Election Commission and the Venkatachaliah Commission to Review the Constitution (2002) have recommended that the decision should be made by the President or the Governor on the advice of the Election Commission. This would be similar to the process for disqualification on grounds of office of profit.
The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances. The Law Commission proposed this change with the condition that partners of such alliances inform the Election Commission before the elections.
The Venkatachaliah Commission recommended that defectors should be barred from holding any ministerial or remunerative political office for the remaining term of the House. It also said that the vote of any defector should not be counted in a confidence or no-confidence motion.
The High Courts and the Supreme Court can exercise judicial review and correct any erroneous order by the speaker/chairman. Judicial review does not cover any stage prior to the making of a decision by the Speakers/ Chairmen.

Restricting the rigours of the whip combined with the above measures would free up the legislative space and ensure that every government strives not only for cross-party consensus on legislation but reaches out to individual lawmakers rather than just their leaderships, deepening participatory lawmaking in the process.