Introduction

• Maharashtra Assembly Speaker ruled that the ruling faction of a political party was the legitimate and real, having the support of the majority of the party’s MLAs.

Anti-Defection Law in India

• Rise of Political Instability: The late 1970s saw rampant floor-crossing by legislators, epitomized by the phrase “Aaya Ram Gaya Ram” after MLA Gaya Lal’s frequent party changes in 1967.
• Legislative Efforts: Various bills, including the 32nd and 48th Constitution Amendment Bills, were introduced to address defections but lapsed or were not passed.
• Enactment of the Law: The 52nd Amendment in 1985, under Prime Minister Rajiv Gandhi, introduced the Tenth Schedule to the Constitution, embedding the anti-defection law.

Features of the Anti-Defection Law

[A] Disqualification Criteria:

• Members of Political Parties: Disqualification occurs if a member voluntarily gives up their party membership or defies the party’s directive without prior permission, which is not condoned within 15 days.
• Independent Members: Disqualification occurs if they join a political party after election.
• Nominated Members: Disqualification occurs if they join a political party after six months from taking their seat in the House.

[B] Exceptions:

• Merger: A member is not disqualified if their original party merges with another party, and at least two-thirds of its members agree to the merger.
• Presiding Officers: Members who become presiding officers can relinquish party membership and rejoin it after their term without facing disqualification.

[C] Decision Makin:

• Deciding Authority: The presiding officer of the respective House is the authority to decide on disqualification matters, subject to judicial review as established in the Kihoto Hollohan case (1991).
• Rule-making Power: The presiding officer can formulate rules for implementing the Tenth Schedule, subject to the approval of the House.
• Procedure for Disqualification: The presiding officer acts upon a defection case upon receiving a complaint. The accused member must be given a chance to explain, and the matter can be referred to a committee for inquiry.
• Position of Speaker: Party whips do not apply to the Speaker. However, questions of disqualification under the law concerning the Speaker or Chairman are decided by a member elected by the House.

Judicial Interpretations and Election Commission’s Role

• Key Judgments: The Kihoto Hollohan case (1991) made the Speaker’s decision on defection subject to judicial review. Other significant cases include Ravi Naik vs Union of India and G. Viswanathan Vs. The Hon’ble Speaker, Tamil Nadu, which clarified aspects of voluntary membership relinquishment and expulsion.
• Election Commission’s Guidelines: The EC resolves intra-party disputes based on majority support in both organizational and legislative wings and may freeze party symbols in unresolved cases.

Challenges and Criticisms

• Discriminatory Features: The law is criticized for not differentiating between dissent and defection and for its approach to individual versus group defections.
• Absence of Time Limit: The lack of a mandated timeframe for decisions on defection cases has led to manipulation and delays.
• Impact on Democratic Functioning: Critics argue that the law restricts legislators’ freedom and weakens legislative checks on the executive.

Debate on Repeal or Amendment

• Arguments for Repeal: Some argue for the law’s repeal, citing its failure to prevent defections and its hindrance to representative democracy.
• Arguments against Repeal: Proponents believe it ensures government stability, recognizes party systems, and reduces corruption.
• Suggested Amendments: Recommendations for amendments include limiting the law’s scope, enhancing decision-making processes, and promoting intra-party democracy.

Expert Recommendations

• Dinesh Goswami Committee (1990) and Law Commission (170th Report, 1999): Suggested amendments include limiting disqualification and involving the President/Governor and EC in decision-making.
• Constitution Review Commission (2002): Proposed barring defectors from holding public office and invalidating their votes in toppling governments.
• Election Commission’s Proposal: Recommended that decisions under the Tenth Schedule should be made by the President/Governor based on the EC’s binding advice.

Way Forward

• Amending the Law: Amendments should address existing shortcomings, such as defining “voluntarily giving up membership” and removing distinctions in disqualification criteria.
• Enhancing Democratic Functioning: Reforms should focus on promoting intra-party democracy and regulating the use of whips.
• Voter Responsibility: The electorate’s role in holding defectors accountable through the ballot remains crucial.

Conclusion

• Navigating Political Stability and Democracy: The anti-defection law seeks to balance political stability with democratic representation and legislative accountability.
• Adapting to Contemporary Politics: As political dynamics evolve, so must the legal frameworks, ensuring their relevance and effectiveness.

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