- Backgrounder – mention the course of formation of anti-defection law.
- Mentioning its failing to prevent defections, point out the amendments needed.
India has adopted the Westminster System of representative democracy. Under this system, the loyalty of the legislators to the constituency is given primacy. However, when the Constitution was originally adopted, the party system was not recognized by the Constituent Assembly. It was only in 1985, that Anti-defection law was engrafted into the Constitution with the insertion of the 10th Schedule.
- During the late 1970s, India witnessed nefarious floor crossing by legislators in total disregard of the democratic wishes of their electorate. This prodded the Parliament to create a Committee to study & report on the issue of defection. Based on the recommendations of the Committee, the 32nd Constitutional Amendment Bill was introduced for disqualifying defected legislators from holding ministries. The Bill lapsed with the dissolution of Lok Sabha, followed by another attempt of 48th CA Bill. Finally, during the Prime Ministership of Rajiv Gandhi, the 10th Schedule was included in the Constitution.
- The 10th Schedule was challenged in the Kihoto Hollohan Case on the ground that it violated the right to free speech of legislators under Articles 105 and 194 of the Constitution. The Constitution bench upheld that unscrupulous political defections must be contained and legislators’ freedom of speech can be reasonably curtailed for the larger interest. The SC held that political instability by large scale defections was a threat to democracy which reduces the concept of democracy to a mockery. The judges also raised concern over the power of Speaker to decide on the question of disqualification, making it subject to judicial review.
Need for Amendment ? : Despite the provisions of the 10th Schedule, defections are rampant, the most recent being in Maharashtra. Luring legislators into horse-trading, foregoing ethics has become a common feature of Indian politics.
The main criticism is that it undermines the very concept of representative democracy, as it has failed to achieve the very purpose of it. At the same time, freedom of legislator to express dissent is necessary for a robust democracy.
- For ensuring necessary intra-party democracy, amendments are required in the Representation of People Act 1951. The Amendment relating to the recognition and deregistration of political parties is a much need step – parties that follow intra-party democracy will only be recognized may propel democratization in party hierarchy.
- Election Commission must be given power under RPA 1951 to deregister political parties.
- Speaker should be bereft of being the adjudicating authority on the issue of Disqualification. In this, the 170th Law Commission recommendation that President or Governor should be made the authority based on enquiry conducted by the Election Commission.
- SC had suggested that Parliament should create an independent tribunal headed by a Judge to decide defection cases swiftly & impartially.
The fundamental premise of democracy is to ensure loyalty of legislators to their electorate first and not their party lines, along with political stability. Only when the leadership of the political party is democratic, can their decisions have democratic taste. It is only when intra-party democracy is statutorily assured that anti-defection law can gain meaning & political legitimacy.