ANTI – DEFECTION LAW: SAVIOUR OF DEMOCRATIC WILL?


Introduction

Political defections (elected members leaving their respective party’s) is not a new phenomenon in Indian politics, it’s been happening since quite a time now. Last year we saw toppling of two state governments of Karnataka and Madhya Pradesh amidst charges of horse trading and political defections. Recently a similar situation has been seen in the state of Rajasthan where sacked deputy minister Sachin pilot along with bunch of his trusted MLA’s took to arms against their own party. The main objective behind these political defections is to bring down a democratically elected government by depriving it of the majority in the legislative assembly. To resolve this issue, in 1985 Constitution was amended to include the 10th schedule (also known as the anti – defection law). In this article we will see can anti - defection laws protect the democratically elected governments?


Anti – defection law explained

Aaya Ram Gaya Ram” was a phrase made popular in Indian politics by a Haryana MLA Gaya Lal who changed his party thrice within the same day in 1967. The 10th schedule of the constitution lays down the process by which legislators may be disqualified from the assembly by a presiding officer on grounds of defection by a petition filed by any other member of the house. A legislator can be disqualified based on these two situations, first a legislator is considered to be defected if he either voluntarily gives up the membership of his party (clause 2(1)(a) or second, disobeys the directives of the party leadership on a vote or disobeys party whip in the house (clause 2(1)(b).


Effectiveness of Anti – defection law in saving the elected Governments.

Recent instances show that this law is not that effective in saving the elected governments, MLA’s have devised a new way to evade themselves of disqualification. Here’s how, rather than officially "crossing the floor" or vote in a confidence motion against their party, they withdraw or resign from the party. It reduces the majority of the party in the House, and topples the Government. A few months later when reelections are held the same MLA’s compete in the elections on the ticket of the opposing party and are again elected in the assembly. As happened recently in Madhya Pradesh when 16 MLA’s resigned from their party (Congress) and merged with BJP. Also, the 10th Schedule says that if there is a merger between two political parties and two-thirds of the members of a legislature of a party agree to the merger, they will not be disqualified. So these are some ways MLA’s defect from their parties without the fear of being disqualified from the assembly and reducing the effectiveness of the anti – defection law.



Role of the Constitutional protectors.

President at the center and Governors at the state level are regarded as the constitutional heads acting in their respective charges. According to article 174 of the constitution Governor of a state must summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. In recent times it can be pointed out that in times of constitutional instability the governors and speakers are found not acting faithfully. As they are an unelected body and do not have much say in the affairs of their state, they have been seen acting for the benefit of the political party which appointed them by delaying summons for the sessions or refusing to order floor tests. This delay affects the stability of government by increasing the chances of horse trading of the MLA’s. rebel MLA’s are offered hefty amounts of money and are lured by the opposition party to give up membership of their party and join them. Which is clearly a blow to the electoral mandate and promotes the evil of corruption.


Steps to be taken to increase effectiveness of the Anti - defection law.

National commission to review the working of the constitution (NCRWC) and various other commissions recommended that the power of disqualification of members should be given to the President (in MP’s) and Governor (in MLA’s), rather than giving it in the hands of the presiding officer. And the members should be disqualified on the advice of the election commission. There is a need of an independent adjudicatory authority, as tenure of the Speaker is dependent on the continuous support of the majority in the House and therefore, is not independent in its decisions and fails to act just. Thus, there is need for an independent authority to deal with the cases of defection.

170th law commission report highlighted the importance of intra party democracy, the party need to act as a democratic institution both in the internal matters as well as outside. It should respect the opinions and queries of all its members and should act upon it. This ensures freedom of speech and expression of its members and maintains internal harmony in the party, reducing the chances of members defecting the party.


Conclusion

We have seen instances where anti – defection laws have helped save political turmoil in our country in the history, but in my opinion, there is still a vast scope for improvement of these laws to increase their effectiveness and save the democratically elected governments. But this can only be achieved when all institutions work hand in hand towards this goal and show utter respect to their task of protecting our constitutional reforms. Elected representatives should also respect the dignity of their post and should not sacrifice their respective parties for monetary gains. As far as the question of whether anti – defection laws can be savior of democratic will of people is considered this might need some more thought and amendments before fulfilling this expectation.


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