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Critical analysis of Anti-Defection Law

The seeds for anti-defection law were sown in the late 1960s with the infamous turncoat Gaya Lal changing his political affiliation thrice in a fortnight, this impregnated the ill-famed phrase Aaya Ram, Gaya Ram. Over the decades, the Aaya Ram, Gaya Ram politics mushroomed and in 1985 the ruling dispensation under the leadership of Shri Rajiv Gandhi implemented the Anti-defection law by adding the 10th schedule through the 52nd amendment. The primary objective of this law was to encumber snolly gosters from throttling the throat of democracy.

Over the years with numerous court cases, clarity was obtained with regard to the provisions of the law. The relevant provisions of the 10th schedule of the constitution read as:
If an elected representative of a political party:
  1. Voluntarily gives up the membership of his political party, or
  2. Votes, or does not vote in the legislature, contrary to the directions of his political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
  3. If an independent candidate joins a political party after the election.
  4. If a nominated member joins a party six months after he becomes a member of the legislature
As per the original provisions of the law the presiding officer, can also be referred as the speaker of the house, both in the legislative assembly and the parliament was given carte blanche authority, however, after the much-celebrated judgement in the Kihoto Hollohan v. Zachillu, 1992, the decision of the presiding officer was made a subject to judicial review, however, only after the decision was made.

Through the judgement given by the apex court in Ravi S. Naik v. Union of India, 1994, the SC interpreted Voluntarily gives up the membership of his political party and suggested that it had a wider connotation and did not merely mean resignation.

With the judgement given by the court in G. Vishwanathan v. Speaker of Tamil Nadu Legislative assembly, 1996, the apex court clarified that even if the joins another political party after being expelled from his old political party, it will fall under the ambit of Voluntarily gives up the membership of his political party.

With these provisions, there are certain exceptions also,

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 a 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 the office.

Using exception (a), the congress party was successful in forming the government after the result of the election to the Rajasthan Legislative Assembly in 2018.

The solitary respite available to the presiding officer is Article 212 of the Indian Constitution, it explicitly averts judicial review into the proceeding of the house. This aforementioned article has been cited numerously in the cases of defection.

Just as everything has an inherent nature of duality, so is the case with this legislation,

Merits
  1. Loyalty to the mandate
    The legislation to a certain extent ensures that the elected representative stays loyal to the mandate given to them by their constituents and that they do not steal the mandate for personal gains.

  2. Stability
    Due to this legislation toppling the ruling dispensation becomes an uphill task, as legislators are prevented from switching sides.

  3. Scope for punitive measures
    The legislation provides a scope to reprimand the elected representatives who have defected from one party to another.

Demerits
  1. Silences internal dissent

    An elected representative belonging to a political party having complaints against the policies of his party will be diffident in expressing the same as there exists a scope for him to be reprimanded.
     
  2. Partisan role of the presiding officer

    Over the years it has been observed that the presiding officer who, not necessarily, but in most cases has a political affiliation fails to perform his duties impartially.

    Such legislations are imperative for a democracy to run on all four wheels, the law in question has been a subject of review on multiple occasions elaborated as under:
    1. Dinesh Goswami Committee, 1990


      It suggested three changes:
      1. The disqualification provision should specifically be limited to defying the party whip in motions of confidence, money bill, vote of thanks to the President.
         
      2. Instead of the speaker, the authority of disqualifying the elected representative should be vested with the governor and/or the president who will act on the counsel of the Election Commission.
         
      3. Nominated members should incur disqualification if they join any political party at any time.
         
    2. The constitution review committee, 2002

      The defectors should also be debarred to hold any public office of a minister or any other remunerative political post for at least the duration of the remaining term of the existing legislature or until, the next fresh elections whichever is earlier. The vote cast by a defector to topple a government should be treated as invalid. Further, the power to decide questions as to disqualification on ground of defection should vest in the Election Commission instead of in the Chairman or Speaker of the House concerned.
On a concluding note, it is high time the legislation either reviews or implements the recommendations given by the various committees because repealing the legislation is not a plausible option, as transparency and impartiality are the hallmarks of any robust institution. It is time that the legislature restores its sanctity.

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