UPSC MAINS 2019: Defection cases should be disposed of within a timeframe: Vice President

Defection cases should be disposed of within a timeframe

Topic: Defection cases should be disposed of within a timeframe: Vice President

 

Topic in Syllabus: GS Paper 2 : Indian Polity

Defection cases should be disposed of within a timeframe

Context:

Vice President M Venkaiah Naidu expressed concern over the manner in which the Judiciary and Speakers of Legislatures were dealing with cases of political defections and said it needed to be disposed of within a “specific timeframe.

 

More about on news:

  • He also advocated a need for an amendment to the Anti-Defection Law, setting a specific timeframe for disposing of defection cases. “Cant we understand when a person changes his (political) flag, colour, leader and slogan and goes ahead,” he asked. Courts too admit petitions and put off the “next hearing” to “next year so and so date,” he said.
  • “They don’t deliver judgements in time. Courts should admit petitions only if they have time and deliver judgement quickly. If they have no time, they should leave it. But they are doing neither this nor that. This is a matter of grave concern,” the Vice President said.
  • Referring to criminal and election-related cases against peoples representatives, he said tribunals and special courts should be set up to deal with and dispose of all such cases within a year. “Priority should be given to cases in which certain persons are facing allegations because they are going to be our leaders. They should be disposed of within one year,” the VP said.

 

Anti-defection law:

  • The Tenth Schedule of Indian Constitution is popularly known as the Anti-Defection Act.
  • Original constitution had no such provisions.
  • It was included in the Constitution in 1985 by the Rajiv Gandhi government.
  • The main intent of the law was to deter “the evil of political defections” by legislators motivated by the lure of office or other similar considerations.
  • Later, the 91st Amendment Act of 2003 made one change in the provisions of the Tenth Schedule. It omitted an exception provision i.e., disqualification on ground of defection not to apply in case of split.

 

The grounds for disqualification under the Anti-Defection Law:

  • If a member of the House belonging to a political party voluntarily gives up his/her membership of that political party.
  • If he/she abstains from the voting or votes contrary to the direction issued by the political party to which he/she belongs in the House.
  • If he/she defects from his/her party to any patty after elections.
  • If the nominated member joins any political party after six months after taking his scat.
  • An independent Member who joins a political party after his/her election.
  • Member who acts in defiance of party direction (Party Whip) and if such defiant action is not condoned by the Chief Whip within 15 days. The Chief Whip may condone the same and recommend to the Speaker/Chairman that the member should not be disqualified
  • Originally, the law protected bulk defections’ in the nature of split (one third of legislature party). However, Constitution (Ninety-first Amendment) Act 2003 made splits illegal too.

 

Exceptions:

The above disqualification on the ground of defection does not apply in the following two cases:

  • If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such merger.
  • If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of this office.
  • It must be noted here that the provision of the Tenth Schedule pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted by the 91st Amendment Act of 2003. It means that the defectors have no more protection on grounds of splits.

 

Evolution of the act:

  • The Tenth Schedule of the Constitution (which embodies the anti-defection law) is designed to prevent the evil or mischief of political defections motivated by the lure of office or material benefits or other similar considerations.
  • It is intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections.
  • Rajiv Gandhi, the then Prime Minister, described it as the ‘first step towards cleaning-up public life’.
  • The then Central law minister stated that the passing of the 52nd Amendment Bill (anti-defection bill) by a unanimous vote by both the Houses of Parliament was ‘a proof, if any, of the maturity and stability of Indian democracy’.

 

Advantages

The following can be cited as the advantages of the anti-defection law:

  • It provides for greater stability in the body politic by checking the propensity of legislators to change parties.
  • It facilitates democratic realignment of parties in the legislature by way of merger of parties.
  • It reduces corruption at the political level as well as non-developmental expenditure incurred on irregular elections.
  • It gives, for the first time, a clear-cut constitutional recognition to the existence of political parties.

Criticism

Though the anti-defection law been hailed as a bold step towards cleansing our political life and started as new epoch in the political life of the country, it has revealed may lacunae in its operation and failed to prevent defections in toto. It came to be criticised on the following grounds:

  • It does not make a differentiation between dissent and defection. It curbs the legislator’s right to dissent and freedom of conscience. Thus, ‘it clearly puts party bossism on a pedestral and sanctions tyranny of the party in the name of the party discipline’4.
  • Its distinction between individual defection and group defection is irrational. In other words, ‘it banned only retail defections and legalised wholesale defections’5.
  • It does not provide for the expulsion of a legislator from his party for his activities outside the legislature.
  • Its discrimination between an independent member and a nominated member is illogical. If the former joins a party, he is disqualified while the latter is allowed to do the same.
  • Its vesting of decision-making authority in the presiding officer is criticised on two grounds. Firstly, he may not exercise this authority in an impartial and objective manner due to political exigencies. Secondly, he lacks the legal knowledge and experience to adjudicate upon the cases.

 

91st amendment act (2003):

The 91st Amendment Act of 2003 has made the following provisions to limit the size of Council of Ministers, to debar defectors from holding public offices, and to strengthen the anti-defection law:

  • The total number of ministers, including the Prime Minister, in the Central Council of Ministers shall not exceed 15 per cent of the total strength of the Lok Sabha (Article 75).
  • A member of either House of Parliament belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister (Article 75).
  • The total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15 per cent of the total strength of the Legislative Assembly of that state. But, the number of ministers, including the Chief Minister, in a state shall not be less than 12 (Article 164).
  • A member of either House of a state legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister (Article 164).
  • A member of either House of Parliament or either House of a State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post. The expression “remunerative political post” means (i) any office under the Central Government or a state government where the salary or remuneration for such office is paid out of the public revenue of the concerned government; or (ii) any office under a body, whether incorporated or not, which is wholly or partially owned by the Central Government or a state government and the salary or remuneration for such office is paid by such body, except where such salary or remuneration paid is compensatory in nature (Article 361-B).
  • The provision of the Tenth Schedule (anti-defection law) pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted. It means that the defectors have no more protection on grounds of splits.

 

Concerns raised against the current anti-defection law:

  • It affects the independence of MPs/ MLAs.
  • Constitution drafters didn’t intend to give the control of members to political parties. Interestingly, it’s only in the 10th schedule, which was included in 1985 that political parties are mentioned in constitution. (Also chief whip).
  • Many members speak up their mind and conviction –more discussion and thus better debates and solutions in parliament. Anti-defection law is against this.
  • In a diverse country like India, members also represent their constituencies. Hence, every member needs to be given voice to give voice to all regions and sections of the population.
  • No incentive for MPs/MLAs to research and understand on policies.

 

What should be done?

  • Nowadays, no real democratic discussions happen inside political parties about major issues affecting the country. Individual MPs and MLAs need to be empowered to think independently.
  • Anti-defection law should be applied only to confidence and no-confidence motions (Dinesh Goswami Committee on electoral reforms, 1990) or only when the government is in danger (Law Commission (170th report, 1999).
  • The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances.
  • Instead of making Speaker the authority for disqualification, the decision should be made by the president or the governor on the advice of the Election Commission. This would make the process similar to the disqualification procedure as given in Representation of Peoples Act (RPA).
  • There can be additional penalties for defectors as well.

 

Sample Question:

Critically examine how the 91st Amendment act to plug loophole in anti-defection law?