Context:
∙ The Maharashtra Assembly Speaker has refused to disqualify MLAs of the Eknath Shinde faction and Uddhav Balasaheb Thackeray group.
What is Defection?
∙ It means the transfer of allegiance by a legislator from one political party to another. It indicates revolt, dissent, and rebellion by a person or a party.
∙ In a political scenario it is a situation when a member of a political party leaves his party and joins hands with other parties.
∙ Traditionally, this phenomenon is known as ‘floor crossing’ which had its origin in the British House of Commons where a legislator changed his allegiance when he crossed the floor and moved from the Government to the Opposition side, or vice-versa.
Defections in India
∙ The practice of ‘defection’ in Indian politics has always been the breeding ground of political instability and uncertainty, often tending to shift the focus from ‘governance’ to ‘governments’.
∙ Defections are an integral part of parliamentary democracy, including India.
∙ According to the Chavan Committee Report (1969), following the Fourth General Elections, Indian politics were characterised by numerous instances of change of party allegiance by legislators in several States.
∙ Therefore, to ensure the stability of elected governments, the 52nd Constitutional Amendment introduced the ‘Anti-defection’ law through the Tenth Schedule in 1985.
Anti-Defection Law (ADL)
∙ It was formulated to bring stability to the Indian political system by curbing the tendency among legislators to switch loyalties from one party to another.
∙ It addresses the following kinds of defection:
∙ By a member voluntarily giving up membership of the party on whose symbol they got elected.
∙ By a member violating a direction (whip) issued by their party to vote in a particular way or to abstain from voting.
∙ The Supreme Court of India has interpreted ‘voluntarily giving up membership’ broadly, ruling that a legislator’s conduct (inside and outside the legislature) can indicate whether they have left their party.
∙ The law also allows a group of MPs/MLAs to join (i.e., merge with) another political party without inviting the penalty for defection.
∙ The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
∙ Nominated legislators: The law specifies that nominated legislators can join a political party within six months of being appointed to the House, and not after such time.
∙ Violation of the law in any of these scenarios can lead to a legislator being penalised for defection.
Deciding Authority
∙ Anti-Defection Law provides for the disqualification of legislators by the Presiding Officer of the Legislature (Speaker, Chairman) based on a petition by any other member of the House.
∙ However, the Supreme Court has held legislators can challenge their decisions before the higher judiciary.
∙ ADL does not provide a time frame within which the presiding officer has to decide a defection case.
∙ However, the Supreme Court has held that, ideally, Speakers should take a decision on a defection petition within three months.
Constitutional and Statutory Provisions for Disqualification
Significances of ADL
∙ Stability: ADL aims to bring stability to governments by discouraging legislators from changing parties, along with promoting party discipline.
∙ Loyalty: ADL tries to bring a sense of loyalty of the members towards their own party.
∙ It ensures that candidates elected with party support and on the basis of party manifestos remain loyal to the party policies.
Criticisms around the ADL
∙ No scope for acting independently: ADL penalises legislators for acting independently is that it goes against the idea of a parliamentary democracy.
∙ ADL binds legislators to the official position taken by their party on any issue.
∙ Accountability to the constituency: By preventing parliamentarians from changing parties, it reduces the accountability to the Parliament and the people.
∙ Split as a defence against disqualification: If there is a split in a particular party, and one-third of the legislators move along with the breakaway group, they will not be disqualified. So, split was a defence against disqualification.
∙ It is being misinterpreted as is seen in Maharashtra because there is no authoritative interpretation of the law.
∙ Ambiguous Nature of Split: In recent years, opposition MLAs in some states have broken away in small groups gradually to join the ruling party.
∙ In some of these cases, more than 2/3rd of the opposition has defected to the ruling party.
∙ However, it is not clear if they will still face disqualification if the Presiding Officer makes a decision after more than 2/3rd of the opposition has defected to the ruling party.
∙ Lure of office: It is widely claimed that Ideological defection doesn’t take place in India & the legislators defect for the lure of office.
Suggestions by different Committees on ADL
∙ Dinesh Goswami Committee on Electoral Reforms (1990): Disqualification should be limited to cases where:
∙ A member voluntarily gives up the membership of his political party;
∙ A member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.
∙ The issue of disqualification should be decided by the President/Governor on the advice of the Election Commission.
∙ Law Commission (170th Report, 1999): Provisions which exempt splits and mergers from disqualification to be deleted.
∙ Pre-poll electoral fronts should be treated as political parties under anti-defection law.
∙ Political parties should limit issuance of whips to instances only when the government is in danger.
∙ Constitution Review Commission (2002): Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term.
∙ The vote cast by a defector to topple a government should be treated as invalid.
∙ Election Commission: Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
Related SC Judgement
∙ Kihoto Hollohan vs Zachillhu And Others (1992): The Supreme Court upheld the validity of the ADL and made the Speaker’s order subject to judicial review on limited grounds.
∙ It held that Freedom to speech and expression is not an absolute right but is subjected to reasonable restrictions.
Way Forward
∙ The introduction of the Tenth Schedule in the Indian Constitution was aimed at curbing political defections and stable government, but it has failed to meet its objective of curbing political defections and ensuring political stability.
∙ Though the law has succeeded in a reasonable way but due to some of its loopholes, it has not been able to achieve the best it can.
∙ The apex court must review the controversial Tenth Schedule to prevent the further corrosion of democracy.
