PGCL Moot Court Society
The Anti-Defection Law: A Broken Chain in India
- Shubhi Dotiya
The anti-defection law, the functions of the Deputy Speaker, and the Governor have come under scrutiny as a result of the developing political crisis in Maharashtra. These events, yet again, highlight the irrationality of the provision.
WHAT DOES ANTI-DEFECTION LAW SAY?
Since the country’s first elections in 1952, politicians have had the ability to switch parties and abandon their political allegiances. During the 1960s and 1970s, these practices reached their epitome, leading the Parliament to amend the Constitution by enacting the Anti-Defection Law in the year 1985. To address the “evil of political defection”, the Tenth Schedule was added to the Constitution in 1985.
The main goal of the provision was to protect the administration against defection of lawmakers from the treasury benches while maintaining their stability. The Anti-Defection Law addresses instances of defection in State Legislatures or in Parliament by: (i) members of a political party (ii) independent members, and (iii) nominated members. The statute permits legislators to switch parties under specific conditions without running the risk of being disqualified.
WHY WAS ANTI-DEFECTION LAW ENACTED?
The anti-defection law has been defended with two main justifications - one argument in favor of the law is that it aims to stop political splintering brought on by bribery and political corruption. It was observed that in the years before the anti-defection law was passed, legislators were frequently enticed to leave their party by promises of administrative posts or personal gains.
Others have contended that defection disregards the will of the people. Recognizing the function of political parties in the parliamentary system is the foundation of this argument. The claim is that the majority of candidates are chosen based on the party that provides them with a ticket, the party pays for their election expenses, and the candidate campaigns in accordance with the party’s platform. As a result, when a party member leaves, he or she breaks the fundamental trust that allowed them to be elected for office.
ANALYSIS AND SCOPE OF THE PROVISION
The provision is not restricted to money bills or motions of confidence. It is applicable to all House votes, on all bills, and other topics. The Rajya Sabha and Legislative Councils are included despite having no influence over the stability of the government. As a result, a MP (or MLA) has no right to cast a vote based only on their personal opinions. They are required to heedlessly follow the party’s lead. Thus, the Anti-Defection Law is a counter to the idea of representative democracy.
Numerous disputed about the operation of law have surfaced throughout time. Does the law limit a legislator’s ability to vote his or her conscience and weaken his or her independence while discouraging defection? Does the provision result in the repression of constructive criticism and debate within parties? Does it prevent politicians from expressing their constituency related worries in disagreement with the official party line? Should the speaker who is typically a member of the ruling party or coalition, determine defection or should it be left to an impartial third party like the Election Commission?
India’s nearly 35-year Anti-Defection Law experience has provided valuable insight into its shortcomings. The anti-defection law was implemented because political stability was harmed by defection, which were encouraged by the allure of political office and other financial rewards. However, the provision violates basic democratic values such as the representational nature of a legislator, his capacity to hold the government accountable, and the consultative nature of the House’s decision-making process. Defecting members have occasionally been given ministerial positions in the administration and there have been multiple instances wherein this provision has failed to prevent defection.
A BROKEN CHAIN IN INDIA
Take a look at how this provision compares to other democracies - for instance, seven Republicans from the U.S. Senate voted to convict the former U.S. President Donald Trump during the vote on his impeachment. Such a choice is not subject to any legal consequences, but the parties have liberty to take action. Additionally, voters have the option to reject a legislator for re-election, which is a fundamental component of representative democracy. The legislator is accountable to voters and the government is accountable to legislators.
The line of accountability has been disrupted in India by holding the legislators solely responsible to the party. Since the party establishing the government is by definition - the one with a majority in the legislature; no one from the party can hold the government accountable. Additionally, all legislators may readily explain their voting habits by noting they had to follow their party’s lead. This disproves the idea that they should have to defend their stances to the people who elected them.
The attempt to resolve what is basically a political issue through the legal system creates the problem. Parties should strengthen their internal procedures if party defection is a problem for the stability of the administration. There would be a higher leave threshold if they chose to recruit members based on ideology and had structures in place that allowed members to advance in the party hierarchy based on their ability rather than inheritance. These qualities are absent in many political parties and despite the anti-defection rule, there has been a lot of defection.
To sum up, the anti-defection law has been detrimental to the functioning of our legislatures as deliberative bodies which hold the executive to account on behalf of citizens. It has turned them into fora to endorse the decision of the government on bills and budgets and has not fulfilled the objective of preserving the stability of governments.
Shubhi Dotiya is third year student at Pravin Gandhi College of Law, Mumbai.
 https://prsindia.org/articles-by-prs-team/the-absurdity-of-the-anti-defection-law  https://www.probono-india.in/research-paper-detail.php?id=711  National Commission to Review the Working of the Constitution, March 31, 2002, http://legalaffairs.gov.in/sites/default/files/chapter%204.pdf.