The Anti-Defection Law in India
The Anti-Defection Law, legislatively known as the Tenth Schedule of the Constitution, holds politicians accountable for defecting from their party and aims to foster greater unity in the ranks of legislative parties. Anti-Defection Law which was introduced in 1985 by the Rajiv Gandhi majority, states: “A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.” After a petition is raised by any other member of the house, the Presiding Officer can take a decision and disqualify a legislator on grounds of defection.
Advantages of the Law are:-
The law intends to improve the stability of the government and its working by making sure legislators don’t switch sides easily and topple majorities and coalitions.
It’s useful to curb ethically dubious malpractices like legislators switching parties because of appointment promises or money incentives offered by another party. In India, during 1967 and 1968, 116 out of the 210 defecting legislators found positions in the newly formed Councils of Ministers.
It allows parties to strengthen themselves, centralize control, and reduce party fragmentation in the already multi-party system.
It prevents larger parties from gaining control of the government by inviting members from smaller parties with incentives.
It would also make party labels and manifestos more meaningful by reducing corruption and personal interests.
Criticisms of the Law are:-
It makes it impossible for the legislator to vote according to his conscience or interests of the people he is representing (if it goes against the party whip).
Although it helps strengthen the party system, in some contexts, it ends up giving too much power to the party and discourages legitimate dissent, which is against democratic principles.
Some critics also suggest that most democratic laws seek to foster competitive party politics to ensure the best performance for the electorate and this indirectly reduces competitiveness and allows mediocrity.
The implementation of the law is also under question and the Presiding Officer who is supposed to be a non-partisan entity has been compromised in previous cases. Some examples to this effect are:-
In Manipur, the governor and the speaker acted in partisan interests and allowed the Bharatiya Janata Party to form the government and accept defectors, even though Congress initially emerged as the largest party in the 2017 Assembly elections. The speaker allowed the defection by merely sitting on the disqualification petitions and allowed the defectors to keep functioning as active regular members of the Assembly. Even after matters reached the Supreme Court, only one Congress MLA was held accountable and disqualified. History repeated itself as recently as the June 2020 Rajya Sabha elections and the speaker disqualified certain legislators allowing a methodical win for the BJP.
In 2003, Mulayam Singh Yadav came to power in Uttar Pradesh with a large cabinet of 98 ministers that included defectors from different parties.
Recommendations from experts are:-
It might be better to bar the defecting individual from ministership or chairmanship for a particular period rather than being barred from parliament altogether, accommodating legitimate dissent and ensuring that they don’t switch for those incentives.
Another recommended change is that the law should be applicable only for votes that concern the stability of the government (such as no-confidence motions and the passage of the annual budget). This gives room for individuals to exercise their principles and vote according to the interests of their constituency even if against the directives of the party leadership.
There is also a recommendation to not leave the decision to the Presiding Officer, but to leave it with the President (in case of MPs) or the Governor (in case of MLAs) along with the consultation of the Election Commission. This takes from the process of disqualification for the misdemeanor of a person holding an office for profit.
The Law has evolved over time with amendments and changes and the constitution provides it with the potential to keep evolving. It is the responsibility of legislators and the judiciary to consider recommendations and fix loopholes to ensure that the spirit of democracy is protected.