Loopholes in the Anti-Defection Law

Context – Recently, the Election Commission of India (ECI) allotted the name ‘Shiv Sena’ and the party’s Bow and Arrow symbol to Maharashtra Chief Minister Eknath Shinde’s faction, in effect recognizing it as the original party founded by Babasaheb Thackeray.  Strengthening Anti-defection law becomes relevant again.

The crisis has thrown the spotlight once again on the anti-defection law, whose purpose is to prevent political defections.

Background of the Political Crisis

• Division in the party – The political crisis in Maharashtra began last year after a group of 40 of the 55 Sena MLAs walked out of the Maha Vikas Aghadi (MVA) alliance under the leadership of Mr. Shinde, which caused a division in the party.
  
• Fight of Name and Symbol – Both the Uddhav Thackeray and Shinde sides staked claim to the party name and symbol, each claiming to represent the real Shiv Sena.
  
• ECI’s Decision based on Test of Majority – It said the group of MLAs supporting the Shinde faction got nearly 76% of the votes polled for the 55 winning Shiv Sena candidates in the 2019 Maharashtra Assembly elections, while the Uddhav Thackeray faction got 23.5% of votes.

What is Anti-Defection Law?

• Tenth Schedule – The Anti-Defection Law under the Tenth Schedule of the Constitution punishes MPs/ MLAs for defecting from their party by taking away their membership of the legislature.
  
• Power to the speaker – It gives the Speaker of the legislature the power to decide the outcome of defection proceedings.
  
• 52nd Amendment Act, 1985 – It was added to the Constitution through the Fifty-Second (Amendment) Act, 1985 when Rajiv Gandhi was PM. The law applies to both Parliament and state assemblies.

Need for the Law

In Favor Motion

• Defection was recognized as an evil that needed to be curbed – Defections cause destabilization and lead to governments falling, which can have negative impacts on the country’s political and economic stability.

• Law helps to stabilize the party system – The law helps to stabilize party systems by consolidating control of the party leadership instead of relying on ideological cohesion or ownership by constituent legislators.

Against Motion

• Law would curb freedom of opinion of the representatives – Some people thought that the law would curb freedom of speech and affect the free exercise of opinion by the members of the legislature who are elected by the people.
• Undermines the representative system of democracy – The law effectively does away with the representative system of democracy in India by framing democracy as a contest between factions rather than a system of representation and accountability.
• Limiting the ability of legislators – The law consolidates power in the hands of the party leadership, potentially limiting the ability of individual legislators to represent their constituents’ interests.

Applicability of Law in Present Times

• Recent events show that the law needs to be tightened – The kinds of defections which used to take place before the passing of this law are not taking place now. But recent events show that this law needs to be tightened.
  
• Third paragraph of tenth schedule was deleted – A little tightening was done earlier by doing away with a split, that is, paragraph three of the Tenth Schedule of the Constitution. It had said, if there is a split in a particular party, and one-third of the legislators move along with the breakaway group, they will not be disqualified. So, split was a defence against disqualification.
  
• No authoritative interpretation of the law – there is a very disturbing trend, which is to interpret paragraph four (decision on questions as to disqualification on grounds of defection) in a particular way, because there is no authoritative declaration of law from the Supreme Court on the exact application of it.
  
• No timeline fixed for the Speaker – In the 10th Schedule currently, there is no timeline fixed for the Speaker to determine the issue and the purpose of this anti-defection law is defeated.

Conclusion

People are principal stakeholders in a democracy; parties are merely the institutional intermediaries. Democracy needs stable parties, but controlling legislators removes their representative role. Need of the hour is to fix the loopholes in the system because the continuous cycle of instability adversely affects the people, who are the primary stakeholders in a democracy and suffer the most.

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