Anti-Defection Law : Issues – UPSC GS2

Anti-defection law:
  • The anti-defection law was included in the Constitution as the Tenth Schedule in 1985.
  • The main purpose was to preserve the stability of governments and insulate them from defections of legislators from the treasury benches.
  • The law stated that any Member of Parliament (MP) or that of a State legislature (MLA) would be disqualified from their office if they voted on any motion contrary to the directions issued by their party. The provision is not limited to confidence motions or money bills but also applies to all votes in the House. It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government.
  • The Constitution was consequently amended to ensure that any person disqualified for defecting cannot get a ministerial position unless they are re-elected.
Against the concept of representative democracy:
  • The anti-defection provision goes against the concept of representative democracy envisioned in the Indian Constitution which envisages the MP or MLA as a representative of the people of the electoral constituency.
  • Due to the anti-defection law provisions, an MP (or MLA) has absolutely no freedom to vote based on their judgement on any issue. They have to blindly follow the direction of the party.
  • The anti-defection law provisions make the MP neither a delegate of the constituency nor a national legislator as envisaged under a representative democracy but make them just an agent of the party.
Reduces the accountability of the government:
  • In India, the chain of accountability has been broken by making legislators accountable primarily to the party. This means that anyone from the party having a majority in the legislature is unable to hold the government to account. Hence, the anti-defection bill weakens the accountability mechanism.
Undervalued legislatures:
  • Since the MP or MLA has no freedom to take decisions on policy and legislative proposals, he/she will have no incentive to understand the different policy choices and their outcomes.
  • Hence, the core role of an MP to examine and decide on policy, bills and budgets is side-lined.
Using loopholes in the provisions of the anti-defection law:
  • The anti-defection law was intended to end the evil of political defection and hence help ensure the stability of elected governments. However, the anti-defection law has failed to even provide stability.
  • The political system has found novel ways to topple governments by exploiting the loopholes in the existing anti-defection law provisions.
    • This includes methods like reducing the total membership through resignations. The Constitution was amended to ensure that any person disqualified for defecting cannot get a ministerial position unless they are re-elected. In order to escape the disqualification, sitting MLAs and MPs are resorting to resignation rather than voting against the party.
    • In some instances, the Speaker — usually from the ruling party — has delayed taking a decision on the disqualification. This has led to members who continue to be part of the main Opposition party becoming Ministers (Andhra Pradesh in the term of the last Assembly).
Flawed argument:
  • The premise that the anti-defection law is needed to punish legislators who betray the mandate given by the voters seems to be flawed.
  • If voters believe that they have been betrayed by the defectors, they can vote them out in the next election. However, many of the defectors in States such as Karnataka and Madhya Pradesh were re-elected in the by-polls, which were held due to their disqualification.
Wrong solution:
  • The issue with anti-defection law is that it attempts to find a legal solution to what is essentially a political problem.
  • If the stability of government is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal systems to ensure greater exit barriers. This has not been possible with many of the political parties which continue to encounter a large number of defections despite the anti-defection law.
Not in line with international practice:
  • India’s anti-defection law stands in stark contrast with other democracies.
    • The U.S. system has a more liberal view of legislators not in line with the party’s stand. In the recent vote on the impeachment of former U.S. President Donald Trump, seven members from his party in the U.S. Senate, the Republicans, voted to convict him. This would not lead to any legal repercussion on the republican senators. However, the party is free to take action. Also, voters may decide to reject the legislator for re-election, in line with the core design element of representative democracy.
  • The anti-defection law has been detrimental to the functioning of the legislatures as deliberative bodies which hold the executive to account on behalf of citizens. The anti-defection law has turned the legislature into just a forum to endorse the decision of the government on Bills and budgets.
  • The law has not been able to fulfil the intended objective of ensuring the stability of the governments by ending the practice of political defections.
  • The Tenth Schedule to the Constitution must be reviewed.

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