Anti-Defection Law

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    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.

    Status of Defection Cases across India

    • Anti-defection proceedings are also going on in other states. 
    • In Jharkhand, former CM Babulal Marandi faces such proceedings after merging his party, Jharkhand Vikas Morcha (Prajatantrik), with the BJP. 
    • In Rajasthan, six Bahujan Samaj Party (BSP) MLAs have merged their legislature party with the ruling Congress.
      • It was challenged by the BSP, and the Supreme Court recently gave the six MLAs a final opportunity to explain the merger.
    • In Lok Sabha, two Trinamool and one YSR Congress Party MPs face proceedings. 
      • The Trinamool Congress wants to disqualify its 2 MPs for joining the BJP, 
      • The YSRCP wants to disqualify its MP for “anti-party activities”.

    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.