How Anti-Defection Law failed to discourage defection

• Recently, the Calcutta High Court has given West Bengal Assembly Speaker a deadline to pass an order in the defection case involving a Member of Legislative Assembly (MLA).
• Anti-defection proceedings are also going on in other states such as Jharkhand and Rajasthan.
• The anti-defection law punishes individual Members of Parliament (MPs)/MLAs for leaving one party for another.

About Anti Defection law:

• The anti-defection law punishes individual Members of Parliament (MPs)/MLAs for leaving one party for another.
• Parliament added it to the Constitution as the Tenth Schedule in 1985. Its purpose was to bring stability to governments by discouraging legislators from changing parties.
• The Tenth Schedule - popularly known as the Anti-Defection Act - was included in the Constitution via the 52nd Amendment Act, 1985 and sets the provisions for disqualification of elected members on the grounds of defection to another political party.
• It was a response to the toppling of multiple state governments by party-hopping MLAs after the general elections of 1967.
• However, it allows a group of MP/MLAs to join (i.e. merge with) another political party without inviting the penalty for defection. And it does not penalise political parties for encouraging or accepting defecting legislators.
• As per the 1985 Act, a 'defection' by one-third of the elected members of a political party was considered a 'merger'.
• But the 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party have to be in favour of a ""merger"" for it to have validity in the eyes of the law.
• The members disqualified under the law can stand for elections from any political party for a seat in the same House.
• The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.
• However, the law does not provide a time-frame within which the presiding officer has to decide a defection case.

Grounds of Disqualification:

• If an elected member voluntarily gives up his membership of a political party.
• If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorised to do so, without obtaining prior permission.
• As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorised person within 15 days of such incident.
• If any independently elected member joins any political party.
• If any nominated member joins any political party after the expiry of six months.

Issues with the anti-defection law

1. Against the concept of representative democracy
2. The act turns legislator to be an agent of the party
3. Broken chain
4. No incentive for MPs to understand policy choices
5. Weakening of the accountability mechanism
6. The act fails to provide stability
7. Promote Horsetrading

Way forward

• If stability of government is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal systems.
• If parties attract members on the basis of ideology, and they have systems for people to rise within the party hierarchy on their capabilities rather than inheritance, there would be a greater exit barrier.
• There is an ardent need for legislation that governs political parties in India. Such a law should bring political parties under RTI, strengthen intra-party democracy, etc.