The anti-defection law has played a crucial role in political stability, but there are gaps which need to be addressed to make it more effective and impartial.

• History: Earlier legislators could switch political parties after the elections leading to the fall of governments and the formation of new ones without fresh elections. This came to be known as “Aaya Ram, gaya Ram” (Ram came, Ram went).
  • Shifting Loyalty: Sometimes these legislators did this in exchange for financial gains or ministerial positions. However, this eroded the trust of people in the said legislator and in democracy.

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Anti-Defection Law

• To counter this issue the Indian Parliament enacted the anti-defection law through the 52nd Amendment to the Constitution, which introduced the Tenth Schedule.
  • This law established the grounds for disqualifying Members of Parliament and State Legislatures due to defection.
  • A member could be disqualified for voluntarily resigning from their political party or for disobeying the party whip during critical votes, such as confidence motions or budget approvals.
• Importance: The law aimed to provide stability to governments and ensure that elected representatives remained loyal to the party’s mandate under which they were elected.

Challenges / Loopholes

• Spilt or Defection?: There was provision in the Act that permitted a party to split if at least one-third of its members defected, often resulting in mass defections. 
  • Solution: The 91st Amendment in 2003 addressed this issue by stipulating that at least two-thirds of a party’s members must agree to a “merger” to avoid disqualification.
• Who Decides the Disqualification?: Speaker is the adjudicating authority in cases involving MPs being disqualified for violating the anti-defection law.
  • Issues Regarding Delay in Deciding Defection Cases: In some instances, Speakers via his/her discretionary powers have taken several months, or even years, to render a decision. This delay allows defectors to continue holding their positions, thereby subverting the purpose of the law. 
• Party Whips Leading to Lack of Democratic Practices: Another issue is the lack of transparency in the issuance and communication of party whips. Whips are crucial tools used by political parties to maintain discipline among members, particularly during important votes. 
  • Certain parties, such as dynasty-led parties, do not adhere to democratic decision-making processes, failing to ensure that all voices are heard.
  • Moreover, members can grapple with their own conscience regarding decisions made by the party, which can further complicate their actions and commitments.
• Is Judicial Review Available?: Although the decisions of the Speaker or Chairperson can be reviewed by the judiciary, courts have generally been hesitant to intervene in defection cases, emphasising the need to respect legislative autonomy.

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Way Forward

• Defined Time Frame for Decision-Making: There is a need to address a timeline in defection cases. A four-week timeframe should be established for resolving defection cases so that discretionary power is not misused. 
  • If a decision is not made within this period, the defecting members should be automatically disqualified from their positions.
  • This amendment to the Tenth Schedule of the Constitution would ensure timely resolutions, prevent arbitrary decisions, and uphold the integrity of the legislative process by reducing political bias and misuse of power.
• Transparency in Issuing Party Whips: To address this, political parties should establish a framework for communicating whips, such as through newspaper publications or electronic communication. 
  • Keisham Meghachandra Singh vs. The Hon’ble Speaker of the Manipur Legislative Assembly and Ors. (2020): In the Keisham Meghachandra Singh case, the Supreme Court suggested replacing the Speaker’s role in anti-defection cases with an independent tribunal or a body appointed by the Election Commission of India. Because there is a possibility that an anti-defection case may have been handled incorrectly or that a member did not receive timely information.
• Accountability and Transparency of Speaker: However, the importance of the Speaker or Chairperson’s office in a democracy cannot be understated, as they play a vital role in upholding parliamentary integrity and ensuring impartiality. Rather than sidelining this institution, reforms should focus on enhancing its accountability and transparency.

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Conclusion

The anti-defection law is crucial for maintaining electoral integrity and preventing instability, but its implementation has revealed significant gaps. Amendments to the Tenth Schedule of the Indian Constitution should be prioritised to enhance the law’s effectiveness, especially in light of the “One Nation, One Election” initiative.

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