AN APPRAISAL OF THE ANTI DEFECTION LAW

INTRODUCTION

The law of anti-defection in India has a major effect on the lives of the general people as it tries to maintain Parliamentary discipline and decorum to prevent the politicians from exercising unethical tactics like defection. While the aim of the law is worth appreciating, at times it has proven to have created more problems and complications than ever before. One of the reasons behind the contention is the provision that forces MPs to vote by the party lines putting behind their narratives and ideas.

In this context, a certain question arises “where does one draw the line”? Shall a legislator be permitted for voting against the order of his party leadership, if the member perceives it right to go against the party line for genuine reasons? Does a person owe a greater allegiance to his party or to the citizens who voted him to put forward their interest? In our country, the urgency of tackling defection arose only after 1967, before it, there were only about 500 instances of defection, and most of the cases of defection at the state level. After the 1967 general elections in the country, the practice of instances of defection took a frightening unprecedented turn. Several legislators swapped their parties due to the allurement of powers of office and abruptly switched back when the allurement offered to them was not fulfilled. This practice of defection or switching sides to gain office, further popularly known as ‘Horse Trading’.  Between 1967 and 1972 more than 50% of the legislators switched sides at least once.[1]

AAYA RAM GAYA RAM is a phrase that become famous in the politics of India after an MLA from Haryana, Gaya Ram swapped his membership of the party three times in a single day in 1967. This political drama led to the origination of the law of defection and this law was made to curb such types of political drama, which might be due to the allurement of rewards of the power or monetary considerations.

The speaker of the concerned house has a major task in deciding upon the petition related to anti-defection law. In Keisha Meghachandra Singh v. The Hon’ble Speaker, the Hon’ble Supreme Court noted that while the Constitution does not prescribe a strict period, a speaker cannot sit on a disqualification petition indefinitely and such petitions would need to be decided within a reasonable time. The court further defined what it meant by reasonable time as, in the absence of any exceptional circumstances, a period of three months for the speaker to decide on the petition.

In Ravi S Naik v. Union of India, the Supreme Court provided a wider prospect to resignation by voluntarily giving up the membership. The court observed that a person may voluntarily give up his membership of a political party even if he has not tendered resignation from the membership of that party. Even in the absence of a formal resignation from membership inference can be drawn from the conduct of a member that he/she has voluntarily given up his membership of the political party to which he belongs.

The very first attempt to scrutinize this political complication came in late 1967. A committee was constituted by the then speaker of the Lok Sabha to analyse the crux of the problem and to suggest some steps to curb the growing cases of defection in the country. The committee was headed by the then Union Home Minister Y. B. Chavan. In early 1969 the committee placed its report before the house. Some of the recommendations by the committee included:

  • All the political parties should arrive at a consensus or a code of conduct amongst each other. https://prsindia.org/articles-by-prs-team/explained-the-limits-of-anti-defection
  • cases involving defection due to the allurement of the power or monetary gains the defecting legislators should be disqualified from the office and also must be averted from standing for a certain period.
  • In cases involving defection for ideological reasons, the defecting legislators should be barred from continuing at the post of the legislator but are allowed to stand again.

What emerges is that no definite stand for or against defection was taken. It was proposed to regulate defection and only certain types of defections were sought to be prohibited. However, these recommendations were not acted upon immediately.

It was when the then Congress government came to power that any positive and fruitful attempt was made in this direction. It began on 17th January 1985 with the presidential address to both the Houses of Parliament, the 52nd constitutional Amendment Bill was presented in Lok Sabha on 24th of January[2]. The then Prime Minister Mr. Rajiv Gandhi had extended talks with the opposition leaders, it was only after that, the Bill was enabled to be passed in Lok Sabha on 30th January and in Rajya Sabha on 31st of January. The Act came into force with effect on the 18th of March 1985 after receiving the Presidential assent on the 15th of February. It defines the procedures by which members may be disqualified on the grounds of defection by the presiding officer of the house. A legislature is said to have defected if he either disobeys the directive of the party leadership on a vote or voluntarily gives up the membership of the party he belongs to. This means that a member disobeying the order of the party on any matter could be disqualified from the House and eventually lose his membership.

HOW ANTI-DEFECTION LAW FAILED TO DELIVER ITS OBJECTIVES

Anti-defection law has led to the loss of independence of legislators and it prevents changing parties that have led to reducing the accountability of the government to parliament. The law prevents dissents against party policies no matter how arbitrary and unlawful it is; thus, it interferes with the right of freedom of speech and expression of the legislators. The current law on defection does not make a clear distinction between defection and dissent. Thus, it destroys the spirit of liberty and leads to the practice of puppetry within the party systems that undermine the basic principle and idea of democracy.

RELEVANCE OF ANTI-DEFECTION LAW IN PARLIAMENTARY DEMOCRACY:

The law prevents shifting of parties by the members thus it provides stability to the government and it is important to keep a check on the practice of ‘horse trading’ in parliament, thus curbing the menace of “Aaya Ram Gaya Ram”.

CONCLUSION

It is well agreed that this law has been made for protecting the privilege of the Parliament, but as we know any law is not static and require some changes by the need of the time, the tenth schedule of the Indian constitution for securing the privilege of the Parliament and to ensure untroubled conduct and the proper functioning of Parliamentary affairs has bit touched upon the corners of democracy and if it is suitably amended to adapt the changing political scenario, it could help in proper and smooth functioning of the Parliament in our country.

After having an insight into the Anti-Defection Law, it can be said that the law must be amended in a manner that the law could be less problematic and do away with all the unclarity and vagueness that is present in the current anti-defection law. Hence, after having looked at the current law we can say that the present law on defection is outdated and as every weapon and software at times has to be updated to keep a check on the harmful updated version of viruses, similarly, the current law of defection must be updated to keep a check on such menace like defection, to uphold the idea of fairness in politics and thus strengthening the democracy.

Author(s) Name: Vibhu Bhardwaj (Chanakya National Law University, Patna)

 References:

[1] J.K Mittal Anti-Defection Act: A comment on its constitutionality (1987).

[2] Subhash C. Kashyap, The-Defection Law- premises, provisions and problems, 35 JPI [1989] 9, p. 11. 

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