Anti-Defection Law

In News

• The Calcutta High Court has given West Bengal Assembly Speaker a deadline to pass an order in the defection case involving 3 MLAs.

Anti-defection law and its purpose

• These laws were introduced as the Tenth Schedule via the 52nd Amendment Act, 1985 after multiple incidents like Aaya Ram, Gaya Ram.
  • It sets the provisions for disqualification of elected members on the grounds of defection to another political party.
• Purpose of the Law 
  • To bring stability to governments by discouraging legislators from changing parties.
  • It ensures that the Party ideologies prevail over individual interests in Indian Parliamentary Democracy.

What constitutes Defection?

• The law covers 3 kinds of scenarios as grounds for disqualification. 
  • Legislators elected on the ticket of one political party “voluntarily give up” membership of that party or vote in the legislature against the party’s wishes.
    • A legislator’s speech and conduct inside and outside the legislature can lead to deciding to voluntarily give up membership.
  • When an MP/MLA who has been elected as an independent joins a party later. 
  • In the case of Nominated legislators, the law specifies that they can join a political party within 6 months of being appointed to the House, and not after such time.
• 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.
  • 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.

Who is the Deciding Authority?

• Violation of the law in any of the aforementioned scenarios can lead to a legislator being penalised for defection. 
• The Presiding Officers of the Legislature (Speaker, Chairman) are the deciding authorities in such cases. 
• The Supreme Court has held legislators can challenge their decisions before the higher judiciary.

Key Controversies surrounding Defection Laws

• No time frame was provided for Presiding Officer to decide in Law
  • There have been many instances when a Speaker has not determined the case of a defecting MLA until the end of the legislature term.
  • There have also been instances of defecting MLAs becoming ministers while a defection petition against them has been pending before the Speaker.
  • Last year, the Supreme Court dismissed a minister in Manipur when the Speaker did not decide the defection petition against him even after 3 years.
    • The court held that ideally, Speakers should take a decision on a defection petition within 3 months.
• Lost individualism of MLAs/MPs
  • The anti-defection law punishes individual MPs/MLAs for leaving one party for another.
  • But it allows a group of MP/MLAs (2/3rd of elected) to join (i.e. merge with) another political party without inviting the penalty for defection.
• No onus on Accepting Parties
  • It does not penalise political parties for encouraging or accepting defecting legislators.
• Failed to ensure the stability of governments
  • Parties often have to sequester MLAs in resorts to prevent them from changing their allegiance or getting poached by a rival party.
    • Recent examples are Rajasthan (2020), Maharashtra (2019), Karnataka (2019 and 2018), and Tamil Nadu (2017).
  • Parties have also been able to use the anti-defection law to their advantage. 
    • In 2019 in Goa, 10 of the 15 Congress MLAs merged their legislature party with the BJP.
    • In the same year, in Rajasthan, six BSP MLAs merged their party with the Congress (the case being heard in the Supreme Court), and 
    • In Sikkim, 10 of the 15 MLAs of the Sikkim Democratic Front have joined the BJP.

Suggestions to improve the law

• Some commentators have said the law has failed and recommended its removal. 
  • Former Vice President Hamid Ansari has suggested that it must apply only to save governments in no-confidence motions.
  • The Election Commission has suggested it should be the deciding authority in defection cases.
• Others have argued that the President and Governor should hear defection petitions.
• Last year, the Supreme Court said Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.