ANTI-DEFECTION LAW: A CRITICAL ANALYSIS

INTRODUCTION

“In politics, nothing happened by accident, if it happens, you can bet it was planned that way.”

– Franklin. D. Roosevelt

In the prevailing condition, Indian Politics had witnessed a political arena where current Chief Minister Eknath Shinde discarded former CM of Maharashtra Uddhav Thackeray from his post by adopting skillful and clever tactics to acquire the throne of the Maharashtra government. The question arises “Whatever had happened in Maharashtra was in favour of democracy?” and “Is there any Law under the purview of the constitution which stymied these kinds of consequences?” So, the ultimate answer is” Yes.” The Tenth Schedule of the constitution dealt with “Anti defection law” added by the 52nd amendment led to an amendment in articles 101,102,190,191. The act was promulgated under the supervision of Rajiv Gandhi was a central power when changing parties was too common causing the toppling of the government at the state and union level and a big threat to the democracy of the country.

The word defection has been derived from the Latin word “defect” meaning an act of abandonment of a person or a cause to which that person is bound because of allegiance or duty or to which he has willfully attached to himself.[1]

As per the Indian Constitution defined the main features of Anti-defection Law are-

Disqualification

  1. When a member of a political party voluntarily gives up.
  2. Contrary to the directions of its party, dissent owns the party whip and does not vote in the legislature. 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.
  3. When an independent candidate joins a political party after the election.
  4. If a nominated member joins a party six months after he becomes a member of the legislature exception is a speaker or deputy speaker.

Disqualification power – The chairman or speaker of the house decides to disqualify a member. If a complaint is received concerning the defection of the chairman or speaker, a member of the house elected by the house shall take the decision.

the reason which can instigate are as follows

Ideology – It begets when a single candidate’s opinions and desires are in conflict with the party’s ideology or mindset and it results in lifting the particular party.

Conflict of Interest – When there is a conflict of interest or dissent in the thinking process between a particular candidate and its party.

The avarice of power – Affectation towards majority party rule. When the candidate has better chances of winning and holding the higher post if it joins the other party.

HorseTrading – to lure someone by money and power when a political party tries to bring in members from the opposition party to gain the majority in the assembly, it is called horse-trading, and at the tyro when BJP was getting a majority Congress had accused them of committing horse-trading to gain the majority in Manipur & Goa. Although, whatever had happened in Maharashtra was like a film story filled with comedy and tragedy. Again, a question arises “Why did Eknath Shinde was not liable under Anti-defection law?” The reason is that Eknath Shinde had the majority of two-thirds of the party strength and the anti-defection law does not apply if the number of resigned MLAs constitutes two-thirds of the party’s strength in the legislature. This was one of the grounds for which partisan devious tactics of Shinde to form a Government in Maharashtra.

HISTORY

The Anti-defection law came into existence or can say gifted by Haryana politics from the famous quote ‘Aya Ram-Gaya Ram.’ When the first ever assembly elections were held in Haryana. The politics were treated as trivialized when an independent politician named Gaya Lal was elected as MLA from Hasanpur within hours of being elected Gaya Lal joined the Indian National Congress after few hours again joined the United Front Coalition and, in the evening, rejoined the Congress party. In nine hours, Gaya Lal lastly switched parties thrice. Alike, political trauma takes place in 1979 Bhajan Lal formed the Janta Party government in Haryana. When Indira Gandhi won the Lok Sabha elections in 1980. Bhajan Lal was attracted and finally along with his MLA’s joined Indian National Congress. This Uprising trend imbalanced the stability of the Government at the state and union level. This practice of floor crossing was not implemented after post -independence but back in the pre-independency era too. Hence, Anti- The defection law was implemented with the intent to “curb the evil of political defection.”

ROLE OF THE JUDICIARY

As per the Anti-defection law, a candidate who voluntarily with an intention left the party due to any reason already discussed earlier would be liable under Anti-defection law and be disqualified but the question arises as per the fundamental rights guaranteed under the purview of the constitution the right of freedom of speech and expression would be violated? This lacuna was resolved in one of the Landmark judgments in the case of Kihoto Holohan Vs Zachilhu and others” where the Hon’ble supreme court stands with a judgment that the Tenth Schedule of the Indian constitution does not impede impinges upon the freedom of speech and expression nor subverts the democratic right of elected members also clarify that the High Court and supreme court can exercise Judicial review but not before the decision of speaker. Paragraph 3 of the given schedule was precluded through the 91st amendment which talks about the provision of exempting the spilt by 1/3 or more of the legislative party members after the election commission (2002 Report). Further, in the case of Shri Rajendra Singh Rana & others Vs, Swami Prasad Maurya & others reflected the ground and the broader meaning of voluntary resignation as supporting the opposition, criticizing its political party Bill and not attending the party’s meeting would be the essential criteria to be debarred even without submitting the written resignation.

REFORMING THE LOOPHOLES

Alike, other laws and bills Anti-defection too has some merits and demerits. The law was adequate to provide quite stability by punishing the members who were disloyal to their political party and breached confidentiality with respective voters. As the law had priorly made crucial the concept of loyalty, it still has many loopholes and gaps which to be concrete or filled by the overview of governance. The first challenge to the anti-defection law is that the tenth schedule does not mention any defined procedure with a definite time limit for completion of the disqualification process of the defecting members. Secondly, 2/3 of resignation is the major loophole and mockery of democracy. Might be many times the speaker who directs the decision would be the inclusion of corruption and announced the decision in favor of the central ruling party or with the ones to whom it belongs. So, for this particular issue, there must be criteria for sending the disqualification report from the speaker to the election commission to maintain transparency and at the last, their decision would be Bonded completely. Thirdly, the judiciary outlook must be there before the speaker’s decision over the particular matter so that genuine justice would take place. However, in the case of Ravi.S. Naik Vs Union of India (AIR 1994 4 SC 1558), the court cited that the decision passed by the speaker would not be final under the tenth schedule it functions as a tribunal, the order passed by them would be testified under judicial review. The Anti-defection Law had does derision with the parliamentary system as impeding a candidate to not opposed a particular Bill even if it largely against the desires and necessity of a common people. The parliamentary debate thus largely becomes redundant. In a deep dark well of such a political arena, there is no place for a common man’s votes and their cravings towards their representative. Neither the government is responsible for the judiciary it’s the full duty of a particular political party to work in unity and harmony, not in dissonance, recalled the motive of establishing the party to function in favour of people and nation, the two most crucial pillar of democracy. But, as it’s the human tendency to be heedful towards prosperity and powers so the results as we all witnessed.

CONCLUSION

The Anti-defection law primarily came into force to weed out the defections in Indian politics. However, the law couldn’t able to abide by the purpose for which it was drafted. Ultimately, the anti-defection law has not been able to address the elephant in the room – bribery, and corruption on the parliament floor. The Introduction of the Tenth Schedule was commendable but as per the uprising necessity of politics, it needs an indestructible reformation and amendment to maintain the stability of the political environment of the country.

Author(s) Name: Vaishnavi Sainee (Jagran Lakecity University, Bhopal)                                         

Reference(s):

[1] G.C. Malhotra, ‘Anti defection law in India & common wealth, ’Lok Sabha secretariat, is available at http://www.gbv.de/dms/spk/sbb/toc/506711366 {last accessed on 8 June 2022}.