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Anti-defection law In India : Lacunas and Solutions

Updated: Jan 18


Introduction


The evils of political defection have been a matter of political concern. Defection law was introduced in the country to check the flourishing practice of Parliamentarians deserting their original parties to join opposition parties. An era of political instability due to the large scale political defection started in General Elections of 1967, but it was only possible with the Constitution (Fifty-Second Amendment) Act, 1985, which amended Articles 101, 102, 190 & 191 of the Constitution and added the Tenth Schedule to the Constitution containing the provisions as to disqualification on the ground of political defection.



Lacunas in our Intriguing Legal System


In our Parliamentary system where the work should have been done through debates and discussion, Schedule 10 seems to curtail both. It mandates that once the political party or its authorized person has directed voting on a matter in a particular way, Parliamentarians cannot vote in a contrary manner, even if the member sees merit on the contrary opinion. As a common understanding of the freedom of speech, nowhere is dissent more vital than in Parliament which is justified by the growth of deliberative democracy. The law thus makes intra-party dissents and debates, which are a core element of intra-party democracy, contingent on the willingness of the leaders and confuses dissent for defection. Unfortunately, the issuance of whips, which stifles the right to dissent, is not governed under Schedule 10 but rules of procedure and conduct in the Lok Sabha/Rajya Sabha. Further, neither the law does specify a period for the Presiding Officer to decide on a disqualification plea nor courts can intervene at a stage before the making of a decision by the Speaker/Chairman as held in case of Kihoto Hollohan.


Further, there appears to be no rationale behind exemption as 2/3rd of a party may merge due to the lure of office. It is solely based on the number of people defecting rather than distinguishing on the reasons behind the split. One glaring contradiction occurs in paragraph 2 which states that an independent member stands disqualified if he joins any political party after his election. But the same paragraph allows a nominated member to join any party within a month of his nomination. This distinction is highly illogical as an independent member owes his election to nobody and should thus be left free to join a party of his choice. Another anomaly in the law can be perceived when one considers that Parliament is required to exercise certain quasi-judicial powers under the Constitution. It stands problematic that the law has not curbed the corruption in voting because it falls outside its ambit as defection is not a suitable check to corruption. This stands contrary to the objective of law to tackle corruption.


Suggestions of 170th Law Commission Report


Regulation of issuance of whips, suggested by 170th Law commission report and various committees, by imposing disqualification only in cases of a vote of confidence or no-confidence motions would liberate legislators from the fear of losing their membership, except in cases where the government is threatened by a no-confidence motion, money bills, and a few crucial financial matters. The decision-making power which is now vested in the presiding officers should perhaps be conferred on a different independent and impartial body altogether. Removal of the existing exemption given to splits and mergers and provision implying decisions within a reasonable period is need of the hour. Indian Parliamentary practice must adopt the learning from the US and British practices to perform its mandate to the fullest by either imposing sanctions such as removal of the defecting legislator or governing by internal party rules.


Conclusion


The democratic flavour of directions can be achieved only when the leadership of the political party is democratic. The anti-defection law can advantage the means and political legitimacy only when intraparty democracy is statutorily ensured.

ABOUT THE AUTHOR

Jasmeen Kaur is a 4th-year student at UPES, Dehradun.

They can be contacted at kaurjasmeenmultani@gmail.com

Edited By: Swathi. Ashok. Nair.

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We at Legal Armor do not endorse the Authors' views and are in no way responsible for the said views. We are just publishing the Write-ups as blogs with just light editing, and are in no way responsible for any legal claims. Legal Armor shall not be liable for any plagiarized content.



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