With political upheaval in states such as Karnataka and Madhya Pradesh posing the risk of backdoor entry by Opposition parties using defection as a means to topple the government, the question is whether a stronger anti-defection law is required in the country.
Despite repeated denials by the Bharatiya Janata Party (BJP) against allegations of 'MLA poaching' by the Congress-JD(S) alliance, the whole political drama that lasted over two weeks and saw several MLAs being holed-up in five-star resorts only depicted a sorry picture of democracy and reduced the subsequent Assembly proceedings in the state to a mere gimmick as the Supreme Court had to intervene and direct the Speaker to take action while he continued to delay the process.
In fact, in a moment of irony, Speaker KR Ramesh Kumar said to have himself lamented the mockery to which the whole political unfolding was reduced to. “In your one-upmanship and power struggle, you’re all not thinking about what is happening to democracy. I’m tired of all this. How long should I be witness to all this? The people are watching us," he remarked during one of the debates over trust-vote in the Karnataka Assembly. But with a rather toothless anti-defection law currently at play, opportunists across the political spectrum and party lines are milking it to their maximum advantage, as and when an opportunity to do the same arises.
What is does the present anti-defection law say?
The anti-defection provisions in India were first introduced in 1985 through the 52nd Amendment to the Constitution when the Rajiv Gandhi-led Congress government was in power. The legislation was brought in with the view that if the evil of political defections was not combated, it is “likely to undermine our democracy and the very principles that sustain it”. It provided that in case a member of a legislature voluntarily gives up the membership of her party (overtly, or even by merely abstaining from voting), he or she will be disqualified from becoming a member of that house until he/she is re-elected afresh.
However, when even this provision in the law did not stop large scale defections, another amendment provided that a member so disqualified could not become a minister unless first re-elected, thus dissuading defections for the sole purpose of immediate ministerial berth in a rival government (Usually, any person can be appointed minister given that he/she gets elected within the next six months.)
Thus, at present, the 10th Schedule of the Indian Constitution, also called the Anti-Defection Act states that an elected member of a party can be disqualified on two grounds:
1. If he voluntarily gives up his membership or,
2. He votes or abstains from voting in the House, contrary to his party's direction and without obtaining prior permission — on the condition is that his abstaining from the voting should not be overlooked by his party by more than 15 days
According to the law, at least two-thirds of the party members have to be in favour of a 'merger' for it to possess judicial validity.
The following, however, will not be considered defections:
1. If a complete political party merges with another political party
2. If a new political party is created by the elected members of one party
3. If the party members don't accept the merger between the two parties and opt to perform as a separate group from the time of such a merger
Meanwhile, the Speaker or the Chairman of the House is the authority to decide on defection cases.
A timeline of the law
However, the seeds of the anti-defection law were sown much earlier — after the general elections in 1967. Back then, the Congress formed the government at the Centre, but its strength in the Lok Sabha fell from 361 to 283 as during the year, it lost control of seven state governments because the MLAs shifted their political allegiance.
Post this, the then home minister YB Chavan headed a committee which stated that defection was the "voluntary giving up of allegiance of a political party on whose symbol a legislator was elected, except when such action was the result of the decision of the party". In its report, the committee noted that "the lure of office played a dominant part in decisions of legislators to defect”. It pointed out that out of 210 defecting legislators in seven states, 116 were given ministerial berths in governments which they helped form by their defections.
In fact, to combat this menace, the committee recommended a bar on defecting legislators from holding ministerial positions for a year — or until the time they got themselves re-elected. It also suggested a smaller Council of Ministers both at the levels of the Centre and the states. The panel was also in favour of various political parties working among themselves to evolve a code of conduct to effectively tackle this problem.
Following the report of this committee, two separate legislative attempts, though unsuccessful, were made to find a solution to defections. The first one was made by former Cabinet minister Uma Shankar Dikshit in 1973; the second, in 1978, by Shanti Bhushan, another ex-Union minister. The third attempt — which was successful — was made in 1985, after the Congress won more than 400 seats in Lok Sabha in the aftermath of Indira Gandhi's assassination.
Later in 2003, another Constitution Amendment Bill was introduced in Parliament by the Atal Bihari Vajpayee government to address some of the issues with the law. A committee headed by Pranab Mukherjee examined the Bill and observed: “The provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further, it is also observed that the lure of office of profit plays a dominant part in the political horse-trading resulting in a spate of defections and counter defections, states The Indian Express report.
Therefore, the one-third split provision which offered protection to defectors was deleted from the law on the committee’s recommendation. The 2003 Amendment also incorporated the suggestion of the YB Chavan committee in limiting the size of the Council of Ministers and preventing defecting legislators from joining it until their re-election.
However, despite these revisions to the law, the gross misuse of it remains apparent and with power usurping ambitions of major political parties, it is unlikely to stop unless a strong anti-defection law is brought in place to instil fear among the turncoats.
Updated Date: Jul 25, 2019 17:59:35 IST