In Indian Politics for a long time, the political scene was dishonoured by members of the legislature bringing instability to the political system. It started with a famous “Aaya Ram, Gaya Ram” slogan which was coined against the continuous defections by the legislators. They used to change parties frequently, bringing chaos in the legislatures as governments fell. This caused serious concerns for the political leaders of the country.
Turbulence in governments is neither new nor uncommon which involves switching of parties by elected members and has been increasing in the past few years in India. So to stop this turbulence and to bring stability in Indian politics, The 10th Schedule of the Indian constitution was introduced in 1985 by the 52nd Constitutional amendment for the stability of the government by the brutal majority of Rajiv Gandhi government and the Anti Defection Law was introduced in 1985 to combat the evil of defection of MP or MLA.
Purpose of the Law
The purpose of this law is to curb political defection by legislators. According to this law, if a member voluntarily gives up the membership of the party, he shall be disqualified and it is not the same as resigning. A legislator can be disqualified even without resigning if by his/her conduct the Speaker of the House finds a reason that the member has voluntarily given up the membership of his party. Secondly, a legislator can be disqualified if he/she votes in the House against the direction of his/her party and if the action is not condoned.
But these conditions have an exception to protect the elected representatives from disqualification, that if two political parties decide to merge and two-third of the members give their nod to merge then the members will not be disqualified.
This law, to a great extent, has been able to fulfil the purpose for which it was made to prevent the evil of defection in the political system and the instability that defection brings with itself. But the recent political incidents in MP, Goa, Manipur, Karnataka and somewhat in Rajasthan have shown the loopholes this law has.
Legal Aspect of the Anti-Defection Law
After the introduction of the 10th Schedule, it got challenged in the Supreme Court in the Kihoto Hollohan case in which the major question was the freedom of speech of MPs or MLAs which is provided by Article 105 and Article 194 of the Indian constitution. The verdict given by the constitutional bench held that the immoral and unethical ways to defect parties should be contained for the larger interest of the nation.
But in the Kihoto Hollohan case, the minority judgement given by justices LM Sharma and JS Verma declared Anti-Defection Law as unconstitutional in their verdicts. Both of them raised questions about the power of the speaker who can sometimes make biased decisions.
The Absurdity of the Anti-Defection Law
One of the main criticisms of Anti-Defection Law is that it goes against the concept of representative democracy and it is not limited to confidence motion or money bills in both houses. This provides the MLA or MP with no freedom to give their own views and reason over any issue and they have to blindly follow the party decision.
Elected members are agents of their voters and they are accountable to their constituency and they are there to take decisions on issues that have high public interest. But the Anti-Defection Law makes elected members the agent of their political parties because they have to follow their party’s decision rather than providing their own reasons.
The members are elected by people and that’s why they are accountable to the voters and the same way the government is accountable to the elected members. But this law defeats accountability. It was the idea of the lawmakers when they were making the constitution that accountability should be prioritised ahead of stability.
On the other hand, the act is also weakening the stability of the political system because it helps the government to decrease the size of the members by the way of resigning. It has also been noticed that the speakers who are usually from the ruling party delay the process of disqualification by holding their decision for a long time.
The Way Forward
The problem of defection is a political problem that cannot be solved through legal methods. The political parties have to take measures by themselves only because it is an internal matter for parties so they should work on their internal stability. They have to take tough decisions against those who try to swap parties like that.
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