Relevance: GS-2: Indian Constitution— features, amendments, significant provisions and basic structure

Key phrases: Tenth Schedule, Aaya Ram Gaya Ram, horse trading, 10th Schedule Keisham Meghachandra Singh vs Hon’ble Speaker 2020

Why in News ?

• Recently in Uttar Pradesh many state ministers defected before the coming assembly election. The political defection before elections has become a regular phenomenon.
• Many constitutional experts have asserted It is time to take a fresh look at the Tenth Schedule to our Constitution.
• The need to supplant anti-defection with a regime that does not make a mockery of those who openly flout its provisions and enjoy the trappings of power without any serious consequences.

Historical Background

• In Haryana, in 1967, an MLA named Gaya Lal changed his party thrice in a day, after which the phrase "Aaya Ram Gaya Ram" became popular in Indian politics.
• Due to frequent defections hampers good governance and promotes open corruption in the form of horse trading.
• Political parties agreed that there was a need for an anti-defection law that would seek to prevent such political defections.
• Rajiv Gandhi, the then Prime Minister of India(1984-1989), proposed a bill to remove the evils of defection.
• The 10th Schedule of the Indian Constitution popularly referred to as the ‘Anti-Defection Law’ was inserted by the 52nd Amendment of the Indian Constitution in 1985.

Important Provisions of the Anti-Defection Law

1. A member can be disqualified, if a member of a house:
   • Voluntarily gives up the membership of his political party,
   • Votes, or does not vote in the legislature, contrary to the directions of his political party (Whip).
   • However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
   • An independent candidate joins a political party after the election.
   • A nominated member joins a party six months after he becomes a member of the legislature.
2. The decision on disqualification questions on the ground of defection is referred to the Speaker or the Chairman of the House, whose decision is final.
3. All proceedings in relation to disqualification under this Schedule are considered to be proceedings in Parliament or the Legislature of a state as is the case.
4. Some exceptions are allowed under the law
   • If two-thirds of the elected members 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 a Speaker can resign from his party, and rejoin the party if he abandons that post.
   • Earlier, the splitting of political parties was permitted, but currently, it is not allowed.
   • Nominated members who are not members of any party can choose to join a party within six months; after which they are treated as a party member or an independent member.

Existing Loopholes

1. Merger issue: Law allows for the protection of defecting members provided two-thirds of the members of the legislative party merged with another political party.
   • This provision has invariably been misused.
   • The seeming political bias of the speakers acting as tribunals is apparent from how disqualification petitions are dealt with.
   • Such misuse is observed in Manipur, Goa, Madhya Pradesh, Uttarakhand and other jurisdictions.
2. Speaker’s Discretion: The two-third merger provision allows for clandestine corruption where by means fair or foul, to either topple governments or to strengthen a razor-thin majority of the party in power.
   • This makes the entire provision unworkable and unconstitutional.
   • Protection of defectors under this provision is often deployed in situations where the disgruntled elements within a political party, as members of the legislative party, are persuaded to use these provisions even though no merger has taken place.
   • There are many situations where, even though the provisions of merger ex-facie did not happen, the speaker of the assembly keeps the proceedings prolonged so that the term of the assembly comes to an end before the proceedings under the Tenth Schedule against those ex-facie defectors have been concluded.
   • The case of Goa is a glaring example where proceedings dragged on for a couple of years and now that fresh elections are around the corner, these proceedings have no value in law.
   • Same witnessed in Manipur. In Madhya Pradesh, too, the government fell because of such open defections. The same fate befell a coalition government in Karnataka.
3. Issues with Article 164(1B): It stipulates that a member of the legislative assembly who is disqualified from being a member of the house shall also be disqualified to be a minister from the date of his disqualification.
   • This allows for the toppling of governments by inducements of various kinds.
   • The motivation is that a fresh election allows the disqualified member to be re-elected.
   • He then becomes a member of the assembly once again, as its term is not over and can also be appointed a minister.
   • Under Article 164(1B), such a defection has no real consequences. It is clearly a provision that surpasses all canons of morality.

Conclusion

• With the rising levels of corruption and cases of defection within the Indian political system, there is an urgent need for a watchdog to prevent them in the future.
• Indian polity if it wants to get rid of such open corruption, it needs to take urgent steps to plug existing loopholes that have made the Tenth Schedule unworkable.
• There is also a need for building up a political debate so that there is a political consensus in the Parliament for amending the Tenth Schedule.
• It has been suggested that it apply only to save governments in no-confidence motions. The Election Commission has suggested it should be the deciding authority in defection cases. Others have argued that the President and Governors should hear defection petitions.
• And last year, the Supreme Court said Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.
• Besides all these, ethical standards in the political parties require deeper consideration. It can be best done by the parties themselves or else its awareness and importance among voters should be given wider publicity by educating them, failing which it is apt to quote a saying “ Nothing changes if nothing changes”

Source: Indian Express

Mains Question:

Q. Despite two decades of anti-defection law, the phenomenon of Aaya Ram, Gaya Ram still dominating the Indian Polity. In this background, discuss the existing loopholes in the anti-defection law and suggest some suitable measures to reform it.