Our legislatures made an amendment in the year 1985 and passed a law called “Anti-defection law” which added a new schedule to our Constitution, i.e., Schedule X. Schedule X of our Constitution provides for Anti-defection law,which is as follows:-
·Disqualification on ground of defection.—(1) Subject to the provisions of [Paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified from being a member of the House— (a) if he has voluntarily given up his membership of such political party ; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.
Functioning of the law
The 52nd amendment, containing the anti-defection law, of the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection. An elected member of parliament (MP) or state legislature (MLA) is considered to have defected, in case he either voluntarily resigned from his party or disobeyed the directives, in the form of whip issued by the party, on a vote. Hence, the elected members must not vote or abstain on any issue in the parliament against the party’s whip. This whip issuance needs profound probing in terms of freedom of expression and liberty.
Independent members, elected without any party ticket, are also disqualified if they joined a political party after election. A nominated member can be disqualified if the person joins any political party after the expiry of six months from the date of nomination.
The law also made a few exceptions. The law initially permitted splitting of parties with a faction claiming minimum one third members as a separate group, but that has now been outlawed with the constitutional amendment in 2003. Also, a party could be merged with minimum two third members into another political party. The members may decide to join the newly formed party or function as a separate group. Further, any member elected as speaker or chairman can resign from his party, and rejoin the party after demitting that post.
The law states that only the presiding officer i.e., Chairman or the Speaker of a House, can make decisions on disqualification of a member under this Schedule, and his/her decision is final. If a question arises on the presiding officer on the subject of disqualification, then the decision shall be made by a newly elected presiding officer. The law states that the Presiding Officer’s decision is final and not subject to judicial review. The Supreme Court struck down this condition partly and held that no judicial intervention shall be made until the presiding officer gives his order. However, the final decision can be appealed in the High Courts and Supreme Court.
The Intent of Law
Assuming the right intent of lawmakers, the legislation was aimed
● To reduce the power of money used for alluring elected member to make or break a government and strengthen parliamentary democracy by prohibiting floor-crossing. ● To bring stability to the government & political parties; and not let the government held at ransom on few elected members. ● To make elected members more responsible to the group of voters who have voted due to loyalty to the party. ● To make the elected member loyal to the political party, on whose party symbol the person got elected to the house.
However, with hindsight, outlawing party defections invites observers to speculate about the framers’ intentions. Was it to produce competitive party systems or to consolidate power within existing parties? (Kenneth Janda 2009). The author may like to believe that the law was proposed with some wrong intentions, and besides that it has led to unintended consequences including an autocratic party system, quelling of dissent and making of false leaders. Let us analyze why the anti-defection law, even though looking so promising and attractive, can compromise the democratic system.
Merits: • Provides stability to the government by preventing shifts of party allegiance. • Ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party policies. Also promotes party discipline. Demerits: • By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people. • Interferes with the member’s freedom of speech and expression by curbing dissent against party policies.
Anti-defection law was adopted by India to bring government stability and reduce money power in parliamentary politics. However, the law changes the basic structure of Constitution by changing the relationship between executive and legislature, by reducing the accountability of executive towards the parliament. The law diminished the freedom of speech and vote, thereby curtailing the constitutional right granted to the elected members. The anti-defection law has minimised the accountability of elected member towards respective constituencies, thereby taking away the democratic right of the citizen to have representatives in the decision making process.
It has made political party, an undemocratic organization with lot of vices, part of the constitutional system and made the house proceeding including no confidence motion meaningless. Arguably, the problem of government instability and money power use in politics still remain prevalent even after implementation of anti-defection law. In any case, the government stability and corruption can not be used to curtail the fundamental of democracy itself.
In general, evolved and matured democratic nations tend to pass laws that permit or promote competitive party politics. Hence, anti-defection law in India is not good for the country and had led to many negative unintended consequences. So, the Schedule X of the Constitution of India with anti-defection law must be repealed immediately to make India a better democracy.