Mains Marathon

Approach

Introduce contextually by some recent misuse of anti-defection law. Discuss how legislature innovate new ways to circumvent anti defection law with examples. Discuss what should be potential remedies for it. Conclude accordingly.

Answer:

Anti defection is a law to prevent political defections which may be due to the reward of office or other similar considerations. The Tenth Schedule was inserted in the Constitution through the 52^nd amendment in 1985.

• However, Recent incidents like in Maharashtra and Madhya Pradesh have raised concerns about the potential misuse of this law.

Recent misuse of anti-defection law that subverts constitutional framework:

• Resort to "Technical Resignations": Legislators may resign from their seats to switch parties and join the ruling party or coalition.
  • In 2019, several Congress MLAs in Karnataka resigned, leading to the collapse of the Congress-JD(S) coalition government. This ultimately paved the way for the BJP to form the government.
• Formation of "Legislative Party": Lawmakers may form a new legislative party within the same political party, allowing them to operate independently and potentially vote against the party's official line.
  • In 2020, Sachin Pilot and other MLAs formed a "Congress Legislative Party" in Rajasthan, leading to a political crisis for the ruling Congress party.
• Proxy Voting: Some legislators may cast votes on behalf of absent colleagues, enabling them to manipulate outcomes while maintaining the appearance of party unity.
  • Allegations of proxy voting were raised during the 2019 Goa Assembly floor test, where the BJP formed the government despite having fewer seats than the opposition.
• Use of Whip and Disqualification: Legislatures may manipulate the issuance of whip (party directive) to ensure compliance with party lines, leading to disqualification if not followed.
  • In 2019, Sharad Yadav was disqualified from the Rajya Sabha for anti-party activities after he opposed the JD(U)'s decision to align with the BJP.
• Temporary Suspension: Legislators might be suspended from the party, allowing them to vote independently on specific issues without technically violating party lines.
  • In 2019, a group of MPs from the AIADMK was suspended from the party but remained independent members of the parliament during the discussion on the no-confidence motion.
• Floor-crossing After Elections: Legislators may switch parties after being elected, exploiting the gap between the time of elections and taking oath as legislators to avoid anti-defection laws.
  • In 2016, Navjot Singh Sidhu resigned from the BJP just before the Punjab Assembly elections and later joined the Congress party.

Need to reassess the anti-defection law:

• Preventing Political Instability: Frequent changes in political alignments can lead to instability in governments, affecting governance and policy implementation.
• Preserving Democratic Mandate: Elected representatives switching parties may be seen as betraying the trust of voters who elected them based on party affiliations.
• Protecting Party Autonomy: The anti-defection law sometimes restricts lawmakers' freedom of conscience and expression, limiting parties' internal democracy.
• Addressing Crossvoting: Crossvoting in elections undermines the concept of a free and fair democratic process.
• Ensuring Legislative Efficiency: Frequent disruptions due to party-switching or shifting allegiances can hamper legislative functioning and delay decision-making.
• Maintaining Transparency: Frequent defections can lead to suspicion of backroom deals and undermine the transparency of political processes.

Reforms required:

• Halim Committee on Anti-Defection Law (1998): It recommended to clearly define the following phrases in the law:
  • Voluntarily giving up membership of a political party and Political party
• Constitution Review Commission (2002): Prohibition of defectors from holding public office for the duration of the remaining term.
  • Disqualification of Defectors from Cabinet (Section 10)
• Transparency in Voting (Section 3 and 4): Require recorded voting in cases of party splits and mergers, ensuring transparency and accountability.
• Time-Bound Speaker Decisions: Establish a time limit (e.g., 3 months) within which Speakers must decide on disqualification petitions, preventing undue delays.
  • Vishwanath Shrikhande vs. Maharashtra Legislative Assembly (2021) emphasized that the Speaker's decision should be based on objective and rational grounds, ensuring fairness and transparency.
• Narrowing the Scope of Exceptions: The existing exceptions to disqualification, such as voting against party directions in Presidential elections, can be exploited.
  • Limit the scope of exceptions to ensure that they are genuine matters of conscience rather than political maneuvering.
• Definition of Party Split and Merger: Ambiguity in defining party splits and mergers can lead to varying interpretations.
  • Formulate clear and objective criteria for determining party splits and mergers, reducing scope for manipulation.
• Greater Clarity on Defections Based on Party Policies (Section 2(1)(b) and 2(1)(b)): Define the scope and criteria for disqualification based on defection from a party's policies, reducing subjectivity.
• Independent Tribunal for Anti-Defection Cases (Section 8 and 10): Establish an independent tribunal comprising legal experts and retired judges to adjudicate anti-defection cases.

"The anti-defection law serves as a crucial mechanism to preserve the sanctity of democratic institutions. However, to ensure its effectiveness, a balanced approach is essential. The way forward involves vigilant enforcement, judicious interpretation, and periodic review to prevent misuse while safeguarding the principles of representative democracy."