91st Amendment Act (2003) and Anti-Defection Law

The Anti-Defection Law, introduced through the 91st Amendment Act of 2003, aims to curb the negative impact of political defections by limiting the size of ministerial councils and barring defectors from holding public offices. This law strengthens parliamentary democracy by addressing the unethical practice of political defection driven by the lure of office or material benefits. However, despite these measures, recent trends have exposed significant loopholes, highlighting the need for further reforms.

Key Provisions of the 91st Amendment Act

Several provisions were made to limit the size of the Council of Ministers, to debar defectors from holding public offices, and to strengthen the anti-defection law through the 91st Constitutional Amendment Act 2003. 

• Some of the Provisions of the act are as follows:

Significant Loopholes and Challenges in the Anti-Defection Law Framework

Ineffectiveness in Preventing Defections: Despite these laws, there has been a continued trend of legislators defecting, which has led to the collapse of elected governments in various states like Goa (2017), Karnataka (2018 and 2019), Maharashtra (2019) and Madhya Pradesh (2020). 

• This situation underlines the ineffectiveness of the Tenth Schedule and its subsequent amendments in arresting this trend​​.
• Role of the Speaker: A major loophole in the anti-defection law is the role of the Speaker as the final adjudicator in cases of party defections. 
• • The law does not set a time limit for the Speaker to make a decision, which can lead to delays or biassed decisions, as the Speaker often belongs to a political party.  
  • For instance, In the case of the Shiv Sena split in the Maharashtra Assembly, the Supreme Court directed the Speaker to rule “within a reasonable time,” but the decision has been delayed for over a year​​.
• Recent Developments: The Election Commission of India recently recognized a party formed by a group of MLAs defecting from the Maharashtra state legislative assembly as the original party. 
  • This decision raises questions about the interpretation and application of the anti-defection law in modern political scenarios​​.
• Criticisms and Calls for Reform: Critics argue that the law restricts legislators from acting independently, thereby undermining the principles of parliamentary democracy. 
  • It binds legislators to their party’s position on various issues, reducing their accountability to their constituencies. 
  • Additionally, it consolidates control under party leadership rather than encouraging ideological cohesion​​.
• Need for Amendments and Judicial Interpretation: The provisions of the Tenth Schedule do not specify a time frame for decision-making in defection cases, leading to uncertainty. 
  • The Supreme Court has recommended that Speakers ideally resolve defection petitions within three months, although this is not legally obligatory. 
  • Additionally, there have been contrasting interpretations of the law by Indian courts, creating further uncertainty.

Suggestions Related to the Anti-defection Law

• Relieving Chairman/Speaker from Adjudicating Powers: Granting the Chairman/Speaker final authority in defection cases challenges the separation of powers. 
  • Transferring this responsibility to the higher judiciary or the Election Commission, as suggested by the 2nd ARC report, could mitigate defection issues.
• Restricting the Scope of Anti-defection Law: To safeguard representative democracy, consider narrowing the scope of the anti-defection law to instances where government defeat could result in a loss of confidence, thus preventing its detrimental impact.
• Independent Tribunal: The Supreme Court of India has recommended that Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases quickly and impartially.
• Enhancing Intra-Party Democracy: To address government stability concerns stemming from party defections, parties should focus on bolstering their internal democratic processes.
• Regulating Political Parties: Legislation governing political parties in India is crucial, encompassing provisions such as bringing parties under RTI and reinforcing intra-party democracy.
• Time frame: The Supreme Court has held that the Speaker of the Legislative Assembly should decide on a petition seeking disqualification of a member under the Tenth Schedule within a period of three months.

Global Application of Anti-Defection Laws

Anti-defection laws are not exclusive to India but are observed in several countries such as Bangladesh, Kenya, South Africa, and Singapore.

• Bangladesh’s Constitutional Provision (Article 70): In Bangladesh, Article 70 of the Constitution mandates that a member vacate their seat if they resign or vote against their party’s directives. 
• Disputes are referred to the Election Commission by the Speaker.
• Kenya’s Anti-Defection Regulation (Section 40): Kenya’s Constitution, under Section 40, requires a member who resigns from their party to vacate their seat. 
• The Speaker decides, and the member has the option to appeal to the High Court.
• Singapore’s Anti-Defection Provisions (Article 46 and 48): In Singapore, Article 46 necessitates a member to vacate their seat upon resignation or expulsion from their party. 
• Article 48 empowers Parliament to decide on any matter related to a member’s disqualification.
• South Africa’s Anti-Defection Clause (Section 47): South Africa’s Constitution, through Section 47, stipulates that a member loses parliamentary membership if they cease to be a member of the party that nominated them.

Articles Related to Anti-defection Law

Conclusion

Although the Anti-Defection Law was enacted to prevent governmental instability, it has faced criticism for being discriminatory and restricting the freedom of speech of elected representatives. 

• Ensuring government stability requires strengthening the internal democracy of political parties. 
• Therefore, there is a pressing need for a more refined and effective legislation that fosters a truly representative democracy while addressing the current law’s shortcomings.

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