THE ANTI-DEFECTION LAW

INTRODUCTION

Democracy is the pioneer of Indian Republic. India is one of the countries where such a system is practiced that equitably makes the citizens as responsible as the leaders chosen by them. The leaders emerge from the parties on behalf of which they contest elections. During the formation of the Indian Constitution, there was no mention of the political parties that are very much prevalent today. Gradually, with the incorporation of the multi-party system in India, there has been a lot of development under this system other than the development of the political party. With the progress, comes great responsibility to manage and maintain the system in such a way that not only serves the country but builds the confidence of the citizens as well. The competing parties need loyal representatives. They are endowed with representing the party, exaggerating their ideologies, and spreading their reach to the people. In return, the party allows them to contest election on their behalf. The upcoming of defection in the political scenario has set up a major drawback. The equivalent act of treachery sets the progress of any party a step down. Deserting a party on the basis of serving elsewhere accounts for defection. India has seen a lot of like approaches in modern politics and the brief analysis highlights the facts to the complete law of anti-defection from its very root.

BRIEF BACKGROUND OF THE LAW

Elections in a democratic country are a form of assertion of desire to choosing a leader for the people on behalf of them. While defection occurring in the view of politics restrict the individual citizen’s will in the assertion of their right to do so. The rise of coalition politics in India has been well versed with backlashes from opposing parties. On the basis of such a case, the members of a political party often jump from one political regime to another, thus accounting for what is well known as defection. The trading of members on the offer of money and a promise for a better position is illicit. Defection accounts for the ‘sifting of allegiance of the democratically elected legislators of a political party to other or, by disobeying the parties’ decision at critical times such as during casting vote on a resolution’. Defection not only affects the party but also undermines the standard of political stability in a country. In the 1960s. the rise of coalition politics increased the defections of elected representatives. For example, in 1967, legislator Gaya Lal changed his allegiance three times in a single day. This situation was memorable and was termed as ‘Aya Ram, Gaya Ram’ as a mockery.

To tackle the prevalence of defection during the 1960s, a law was sought by the joint committee under Y.B. Chavan. The committee reported the instances where the illicit practise was carried under the basis of circumstantial proof. Identified corrupt practices led to the trade of MLAs and MPs to other political parties. The bill was later turned down in view of emerging election. The Non-Congress party to come to power was led by Moraji Desai of Bharatiya Janta Party who came to power in 1977. Although his reign lasted from 1977 to 1979, merely 2 years. The whole dissolution took place due to the defection of members in the party and the government was driven out of power. As many as 76 parliamentarians had had withdrawn themselves from the political party. In 1984, the Rajiv Gandhi government proposed a new law for the anti-defection bill in the Parliament. The bill was enforced in 1985. The law laid out the detailed process of disqualification of an elected member, who was charged under defection either by resigning or by defying party leadership and absconding the vote. The law specified the crux of an exception being the merger and splits of political parties.

THE 10th SCHEDULE

The tenth schedule in the Indian Constitution lays down the technicalities to the anti-defection law. The tenth schedule was inserted by the 52nd amendment to the Constitution. It narrows down the process of termination of an elected member on the charges of defection. The disqualification stands off to the final decision of the chairman/presiding officer of the House of Parliament. The tenth schedule mandates;

Subject to provisions, a member of a house belonging to any political party shall be disqualified for being a member of the house –

· If he has voluntarily given up his membership of such political party; or

· If he votes or abstains from voting in such House contrary to any direction by the political party which he belongs or being authorized by it, without obtaining, in either case, the prior permission of such political party, person or authority and voting or abstention has not been condoned.

To the contrary the tenth schedule that the defection law would not apply to the case of merger. Whereby, (1) A member of the house shall not be disqualified if his party has merged with another political party and he claims that he had any other member of his original party-

a. Have become members of such party or, as the case maybe, of new political party formed by such merger; or

b. Have not accepted the merger and opted to function as a separate group

ADVANTAGES OF ANTI-DEFECTION LAW

1. Provides stability to the government by preventing the shift of party allegiances of the representatives.

2. Ensures the loyalty of the members to their respective parties.

3. Facilitates merger of political parties without attracting the provision of anti-defection.

4. Expected to reduce corruption at the political level.

LOOPHOLES

1. The power of the speaker according to rule 6 of the schedule is absolute. The speaker can decide over the termination of valid facts presented or merely declare it as obsolete.

2. Judicial review, under the schedule, is not in accordance with the law. It is not applicable as no courts shall have the power of jurisdiction over it. Later in a case of Kihoto Hollohon vs Zachilhu and others the Hon’ble Supreme Court declared it unconstitutional. The Court held that the speaker while deciding the case, acts as a tribunal and if there is any wrong decision, the courts can review it.

3. No individual stands on the members of the party as the leader of the party has a dictatorial essence.

4. Disqualification on the basis of merger abstains. The provision tends to safeguard the members of a political party where the original political party merges with another under the condition that at least two-third of the members of the legislative party concerned have agreed for the merger.


HOW FAR HAS THE LAW SUCCEEDED

The law has certainly been able to curb the defection to a great extent at least in a country such as India. But, of late, a very alarming trend of legislator defecting in groups to another party in search of greener pleasures is visible. The law endowed to curb the political corruption has somewhat succeeded but the inflow of illicit practice has not been detained. The recent cases and charges of anti-defection have made critical turmoil in the Indian political scenario. Political instability caused by the frequent and unholy shift of legislators is contained. Although power to party whip should be reduced so that only those members who vote against the party manifesto are subject to disqualification. The law must explicitly set out what it means by the words ‘voluntarily giving up membership’ which is one of the most debated and confusing terms in the schedule. The effective applicability of this law must be the most safeguarded one.

© The People Bookmark | 2020

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