Relevance: GS-2: Indian Constitution- features, amendments, significant provisions

Key Phrases: Tenth Schedule, defection, Fifty-Second (Amendment) Act, 1985, voluntarily gives up, Reduced accountability, Dinesh Goswami Committee.

Why in News?

• The High Court of Bombay at Goa held that the former members in the Goa assembly who had defected are exempt from disqualification under Para 4 of Tenth Schedule, referred to commonly as the Anti-Defection Law.
• Ten of the 15 MLAs of the CLP in the Goa Assembly — two-thirds of the party’s strength in the House — had joined the BJP.
• Tenth Schedule exempts defectors from disqualification if their original political party merges with another party and two-thirds of the members of that party in the legislature agree with the merger.
• The anti-defection law was designed to eliminate political defection. However, the judgment of the Bombay HC seems to assume that paragraph (4) of the 10th schedule is meant to facilitate defection.

About Anti-Defection Law:

• The Anti-Defection Law under the Tenth Schedule of the Constitution punishes MPs/ MLAs for defecting from their party by taking away their membership of the legislature.
• It gives the Speaker of the legislature the power to decide the outcome of defection proceedings.
• It was added to the Constitution through the Fifty-Second (Amendment) Act, 1985.
• The law applies to both Parliament and state assemblies.

Grounds of Defection:

The law covers three scenarios with respect to shifting of political parties by an MP or an MLA.

• Voluntary give-up: When a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House against the wishes of the party. Such a person loses his seat.
• Independent members: When a legislator who has won his or her seat as an independent candidate joins a political party after the election.
  • In both these instances, the legislator loses the seat in the legislature on changing (or joining) a party.
• Nominated MPs: In such case, the law gives them six months to join a political party, after being nominated.
  • If they join a party after such time, they stand to lose their seat in the House.

Exceptions under the Anti Defection Law:

• In the situation where two-thirds of the legislators of a political party decide to merge into another party, neither the members who decide to join nor the ones who stay with the original party will face disqualification.
• Any person elected as chairman or speaker can resign from his party, and rejoin the party if he demits that post.
• Earlier, the law allowed parties to be split, but at present, this has been outlawed.

Advantages of Anti Defection law

• 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.
• It facilitates democratic and ideological realignment of parties in the legislature.
• Help in reducing non-developmental expenditure incurred on irregular elections.
• For the first time, it gave clear-cut constitutional recognition to the existence of political parties.
• It promotes party discipline.
• It prevents breach of trust of people due to defection.
• It provides a scope to reprimand elected representatives who have defected from their party to another.
• It facilitates mergers of political parties without attracting the provisions of anti-defection.

Concerns:

• Loss of independence: Anti-defection has led to loss of independence of an average legislator.
• Reduced accountability: It prevents parliamentarians from changing parties that has led to reduce the accountability of the government to Parliament.
• Against dissent: The law prevent dissent against party policies. Thus, it interferes with the member’s freedom of speech and expression.
• Unbridled power to presiding officer: The defection cases are decided by the presiding officer of the House concerned; whereas, in other matters of disqualification, decision making power rests with the President or the Governor of State.The impartiality of presiding officer is not always guaranteed.
• No respite in case kept pending: A party aggrieved by the decision of the presiding office may approach the court. However, if the presiding officer does not dispose the matter and keeps it pending, the aggrieved fails to seek the aid of court.
• Puppet of political party: It destroys the spirit of liberty and lead to the practice of puppetry within the party system in a parliamentary democracy.
• Prevent discussions and debates: It prevent members to speak up their mind, thus leading to less discussions and lesser healthy debates and solutions in parliament.
• No incentives: Due to lack of accountability and limit on speech and expression MPs/MLAs find no incentives to research and understand policies and to find solutions to various issues.

Recommendations on Anti-Defection Law:

• Dinesh Goswami Committee: Recommendations include that disqualification should be only for cases such as:
  • Member giving up the membership of his political party voluntarily.
  • Member voting or abstaining from voting opposed to party directions.
• Law Commission 170th Report:
  • Delete the exemption in case of splits and mergers.
  • Consider the pre-poll electoral fronts as one party under the 10th Schedule.
  • Parties should issue whips only on critical situations or votes.
• Election Commission:
  • Make the President/Governor the decision-maker with respect to disqualification subject to binding advice from the Election Commission on the lines of disqualifications based on the Representation of Peoples Act’s provisions regarding the Office of Profit.

Way forward

• Parliament may seriously consider a Constitutional amendment to bring in a permanent Tribunal for dealing with defection cases.
• Last year, the Supreme Court held that ideally Speakers should take a decision on a defection petition within three months.
• It is suggested that a scheme should be brought wherein Speakers should renounce all political affiliations, membership, and activity once they have been elected.
• We can learn from the UK model. In practice, once elected, the Speaker gives up all-partisan affiliation, as in other Parliaments of British tradition.
• He/she remains in office until retirement, even though the majority may change and does not express any political views during debates.

Sources: Indian Express  PRS India   Hindustan Times

Mains Question:

Q. Recently Bombay High Court (Goa Bench) have its judgement on anti-defection law. In this context discuss the Anti-Defection law in India its advantages and concerns arising in present times. Also mention the recommendations of various committees and landmark judgements in support of your answer?