Answer

Defection, often termed as “political horse-trading,” refers to an elected representative abandoning the party on whose ticket they were elected. To curb this, the Tenth Schedule was inserted into the Constitution by the 52nd Amendment Act, 1985, laying down the Anti-Defection Law (ADL). Despite this, recent episodes, especially in Maharashtra (2022) and Telangana (2023) have raised concerns about its efficacy.

Implications of Defections in State Legislatures

• Undermining Democratic Mandate: Voters elect MLAs based on the political party’s ideology and manifesto. Defection distorts this democratic choice.
  For example: In Maharashtra, Shiv Sena’s split led to a government contrary to the original electoral mandate.
• Political Instability: Defections can result in a change in government and governance instability. Governments formed through defections tend to be fragile and short-lived.
  For example: Karnataka (2019) and Madhya Pradesh (2020) witnessed government changes triggered by defections.
• Erosion of Public trust: Frequent defections can erode public trust in political institutions. Voters may perceive their representatives as self-serving and opportunistic, leading to cynicism about the political process.
• Rise of Money and Muscle Power: Allegations of MLAs being offered inducements to switch parties reduce trust in the political process. Poses a serious ethical and moral challenge to parliamentary democracy.
  For example: A record 251 (46%) of the 543 newly elected members in the 2024 Lok Sabha polls have criminal cases, with 27 having been convicted, according to an analysis by the Association for Democratic Reforms (ADR).
• Erosion of Inner-Party Democracy: Frequent splits or shifts discourage open debate within parties and promote personality-based politics.
• Judicial Overload: Delays in decisions by Speakers often lead to prolonged court cases, burdening the judiciary.

Effectiveness of the Anti-Defection Law (Tenth Schedule)

Positive Contributions

• Prevents Opportunistic Defections: It has largely put an end to “Aya Ram, Gaya Ram” politics by disqualifying individuals who defect for personal gain.
• Strengthens Party Discipline: It enforces party discipline by discouraging elected representatives from undermining the party’s ideology or leadership through defections.
• Upholds the Mandate of the Voter: Voters often elect candidates based on the party’s ideology and manifesto, not just the individual. Prevents betrayal of the electoral mandate and avoids backdoor entry of ideologically opposite parties.
• Provides Legal Mechanism for Disqualification: Clearly defines situations under which a legislator can be disqualified for defection (e.g., voluntary resignation, voting/abstaining against party whip without permission).
• Deterrent value: Acts as a moral and legal deterrent, especially for individual MLAs.
  

Limitations and Loopholes

• Stifling Dissent: Legislators must follow the party whip even against personal or ethical beliefs, limiting accountability to voters and stifling internal dissent.
• Delays in Disqualification Decisions: The law does not prescribe a clear time limit for the Speaker to act.
  For example: In Maharashtra, disqualification petitions were pending for over a year, allowing the rebel faction to function freely and even some defectors being sworn oath as ministers.
• Lack of Independent Authority: The Speaker, often from the ruling party, acts as the adjudicating authority. This creates a conflict of interest while taking final decision in case of defections.
  For example: Supreme Court in Kihoto Hollohan v. Zachillhu (1992) upheld the Speaker’s authority but allowed judicial review, weakening immediate enforcement.
• Ambiguity on “Split” and “Merger” Provisions: Loopholes like the two-thirds rule or engineered resignations allow groups of MLAs/MPs to defect without falling under the anti-defection provisions.
  For example: The “merger” clause (2/3rd members joining another party) is still being used strategically, as in Telangana.
• Judicial Overreach or Delayed Intervention: Judiciary can only intervene after the Speaker’s decision, causing delays and reducing effectiveness of the legislation.
  For example: In 2020, the Court had asked Parliament to amend the Constitution to strip Legislative Assembly Speakers of their exclusive power to decide upon whether legislators should be disqualified or not under the Tenth Schedule which frames the anti-defection law.
• Lack of Intra-Party Democracy: The law incentivizes parties to control and discipline members, discouraging dissent and debate within the party.
  For example:  As recommended by NCRWC (2002), to encourage mechanisms within parties that allow healthy dissent, transparent decision-making, and accountability.

Way Forward

• Time-bound Disqualification Process: Enactment of a law or amendment to mandate a decision within 90 days.
  For example: Supreme Court in Keisham Meghachandra v. Speaker (2020) recommended that while courts cannot dictate the outcome of a disqualification petition, they can direct the Speaker to decide within a reasonable period.
• Independent Tribunal: Shift disqualification authority from the Speaker to an independent body such as the Election Commission or a judicial tribunal.
  For example: in Meghachandra Case (2020), the Supreme Court suggested that an independent tribunal can be appointed which  will substitute the Speaker to deal with matters of disqualifications under the Tenth Schedule. 
• Stronger Penalties for Defectors: Bar defectors from holding ministerial positions or contesting elections for a period.
• Reforms in the Tenth Schedule: Revisit the merger clause; create safeguards to prevent collective defections.
• Political and Electoral Reforms: Strengthening internal party democracy, candidate selection transparency, and voter awareness.
  For example: Educate voters on the impact of defections and importance of political accountability. Use of Right to Information (RTI) and civil society watchdogs to track disqualification petitions and outcomes.

The anti-defection law was a landmark reform to ensure political stability and ethical conduct of the legislators. To address recent misuses, comprehensive reforms procedural, legal, and political are required. The law must evolve to protect both the letter and spirit of democracy in India.

DOWNLOAD PDF