Anti Defection Law

Questions

1. Analyze the constitutional provisions related to the Anti-Defection Law and assess how they balance the need for stable governance with the principles of individual legislator’s freedom of conscience, expression, and association.

2. Examine the linkage between the Anti-Defection Law and the principles of parliamentary democracy, evaluating how these provisions contribute to maintaining the integrity and credibility of legislative bodies.

3. Assess the constitutional provisions related to exceptions and disqualifications under the Anti-Defection Law, and analyze how these provisions align with the principles of justice, fairness, and proportionality.

4. Examine the role of the Speaker in deciding cases of defection and assess the constitutional safeguards in place to ensure impartiality and transparency in such proceedings, considering recent debates on the functioning of Speakers in various legislative bodies.

5. Analyze the impact of the Anti-Defection Law on the functioning of political parties and intra-party democracy, considering its implications for party discipline and the representation of diverse viewpoints within a party.

6. Assess the contemporary relevance of the Anti-Defection Law in addressing challenges such as coalition politics, ideological shifts, and the role of social media in shaping public opinion, evaluating the need for potential reforms in light of evolving political dynamics.

Background

• 60s - 80s: defection became extremely prevalent
  • money and power benefits
• Parl enacted 52nd CAA 1985, added Article 102(2), Schedule 10
• objective
  • prevent defection culture
  • ensure stability of govt
  • reduce role of money power
  • prevent corrupt practices influencing voting in house

Disqualification

• if chosen member voluntarily gives up membership of pol party $⟹$ liable for disqualification
• if person votes contrary to dirn issued by pol party and action not condemned by pol party in 15 days
• independent candidate joins a party
• nominated candidate joins party after 6mo

Not disqualified if

• nominated member joins party within 6mo and not be disqualified
• ”merger”: if $\ge \frac{2}{3}$ members split and join \ form other party $⟹$ no defection
  • original clause: “split” $\ge \frac{1}{3}$
• Presiding officer may resign from pol party and may rejoin original party after his term $\to$ no defection

Decision wrt disqualification under ADL

• Para 6, ADL: all decisions taken by Presiding Officer
• no time limit for decision by PO
• Para 7, 10th Schedule: barred court from exercising jurisdiction on matters of disqualification under ADL
• Kihoto Holohan Case: SC upheld constitutional validity of ADL
  • promotes clean politics and reduces role of money power
  • but struct down Para 7
    • JR part of Basic Structure Doctrine
  • held that speakers arts like tribunal (when ADL)
    • $\therefore$ courts cannot be excluded from jurisdiction

Challenges

• compromises role of individual legislator
• lack of internal party democracy
• undermines principle of representative democracy
  • whip == party representative, not public representative
• law silent on time taken by PO to decide matters
  • advantageous to ruling party
• exception of merger allows wholesale treading
• weakened position of opposition as exec already has maj and ruling party legis can’t question exec
• law doesn’t apply to pol party and coalitions

Way Ahead

• 2nd ARC: PO should be relieved; powers vested with ECI or independent tribunal
• consider Brit practice: once a speaker, always a speaker
• follow principles laid down in court in Kihoto Holohan Case
  • ADL must apply only when stability of govt threatened

See also:

• Rajya Sabha
• Lok Sabha
• Presiding Officer
• Council of Ministers