Discuss the various issues in the effective functioning of the anti- defection law. Does the law, while deterring defections, also lead to suppression of healthy intra-party debates and dissent?
The Anti-Defection law was passed by the parliament in 1985, by the 52nd amendment to the Constitution which added the Tenth Schedule which laid down the process by which the legislators may be disqualified on grounds of Defection. It was passed by parliament to provide stability to governments and promoting party discipline, however the repeated cases of defections have questioned the viability of Anti-Defection Law.
A member incurs disqualification under the defection law, under the following circumstances-
- If he voluntarily gives up the membership of the political party on whose ticket, he is elected to the House.
- If he votes or abstains from voting in the House contrary to any discretion given by his political party.
- If any independently elected member joins any political party.
- If any member nominated joins any political party after the expiry of six months.
However, any person elected as a Speaker or Chairman could resign from his party and rejoin the party if he demitted that post. Also, a party could be merged into another if at least two-thirds of its party legislators voted for the merger.
THE ISSUES CONCERNING THE ANTI-DEFECTION LAW
Though Anti-Defection law was the need of the time and it was passed to maintain the essence of democracy, it contains several loop holes such as-
- There is no mention of any time frame by the Presiding officer to take decision regarding the disqualification.
- The Law states that the decision of the Presiding officer is final and not subject to judicial review. The Supreme court later on held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Court and Supreme Court.
- Kihoto Hollohan case,1993 provides the provision of judicial review, but the Judiciary is by and large helpless at the pre- decisional stage.
- It restricts the key democratic principle of having an opinion, independent thinking and even going against one’s party in case of difference of opinion like US, UK, Australia etc.
- It suppresses the democratic principle of debates and discussions by giving importance to the opinion of every MP, rather binds them to the direction of the whip.
CONDITIONS FOR HEALTHY INTRA PARTY DEMOCRACY
- Healthy deliberations on various issues facing the country by different MPs.
- Members of Parliament being the representative of their constituency and not just a means by the party to complete their numbers.
- The informed and constructive debates, leading to logical conclusions.
- Upholding mutual respect across political parties and also upholding the right to have a different opinion for every MP and not just being subjected to instructions of the whip.
- There is a need to define the procedure clearly and set a definite and reasonable time limit for each step of the process, ensuring transparency.
- The possibility of taking the power away from the Speaker and entrusting it to some independent constitutional authority such as the Election Commission of India.
- The Supreme court order in Kihoto Hollohan case must be followed and parties issue directions only on the votes which are crucial to the stability of the government.
Therefore, the Anti-Defection law which was passed to protect the stability of parties goes against the principle of representative democracy, which need to incorporate the changes given above in order to stop suppression of healthy intra-party debates and dissent