INTRODUCTION

An election is one of the important components of a democratic system of governance. It takes place between political parties with different and diverse ideologies. Free and Fair competition between these political parties is a part and parcel of the wrestle for power to govern the country. Political parties and their recognition and practice of different ideologies are an indication of a vibrant democracy. However, anti-defection is a serious issue that is a matter of concern for the party system as it gradually hampers the idea of democracy in a country. The Anti-Defection law in India deals with situations of defection in Parliament or state legislatures by

1. Members of a political party
2. Independent members
3. Nominated members

A situation of defection is observed when a member of a political party leaves his party and joins hands with other parties. This practice of defection has been a root cause of instability and uncertainty in Indian politics. Mere changing of political parties by a party member is never a cause of defection. Every individual has the right to serve the political party they deem fit to their ideology. A member is only disqualified if:

•   If he or she voluntarily gives up the membership of a political party or joins any other political party after the election, votes or abstains from any crucial voting contrary to the directive circulated by his/her respective political party.
•   A nominated member if he/she joins any political party after six months from the date he/she takes his seat.

The Chairman or the speaker of the house has absolute power in dealing with cases that include the disqualification of members who have defected under the law. Though there is legislation about anti-defection, it had only mere success because of its heavy loopholes which didn’t allow it to achieve the best it can.

 WHY IS IT IN NEWS?

It was recently in news because of the BRS MLA Poaching case. On October 26th, 2022, A Telangana legislative assembly member has filed an FIR claiming that he was offered an amount of Rs. 100 crores besides contract work for the central government by three people for not contesting as a BR candidate. He claimed that he was also threatened by those people who threatened that they would slap false criminal charges against him if he doesn’t agree to them. A registered FIR was filed under sections 120B, 171B, 171E, and 506 of the Indian Penal Code read with Section 34 of the IPC and Section 8 of the Prevention of Corruption Act, 1988. A writ petition was filed before the Telangana High Court praying for the transfer of the investigation to CBI by the Bharatiya Janata Party.

The Telangana High Court on November 15, allowed the investigation team constituted by the state government. On November 21, The Supreme quashed the orders by the High Court and directed the CBI to probe into the matter afresh. Earlier the top court cautioned the Central Bureau of Investigation (CBI) to not begin the investigation into the alleged controversy before the maintainability of the appeal is adjudicated on its merits. The bench has adjourned the matters in the week commencing from July 31.

EVOLUTION OF ANTI-DEFECTION LAW IN INDIA

Indian politics has been a breeding ground for political instability in the country. The infamous “Aaya Ram, Gaya Ram” slogan was coined because of the continuous defection by the legislators in the 1960s. There are several instances in Indian Political history where defections by the legislators. According to the Chavan Committee Report (1969), there were several instances after the Fourth General Elections of change of party allegiance by legislators in several states. In the two decades between the First and Fourth General Elections, there were about 542 incidents, and at least 438 defections took place in only these 12 months (March 1967 – February 1968). Of the 376 elected Independents, 157 joined different parties during this time. The fact that 116 of the 210 parliamentarians from different States who defected were included in the Councils of Ministers that they contributed to forming shows that the temptation of office played a significant role in their decisions to do so.

A private members resolution moved in the Fourth Lok Sabha by Venkatasubbaiah for steps for bringing forward legislation to curd unlawful defections in India. The resolution was passed by Lok Sabha on 8th December 1967 unanimously. A committee on defections was set up by the government under the chairmanship of the then Union Home Minister, Shri Y.B. Chavan which submitted its report in 1969.

The Constitution (Thirty-second Amendment) Bill, 1973

The Y.B. Chavans committee was ineffective in providing an adequate solution to the problem of defection in India. A motion for reference of the bill to a Joint Committee of the Houses of Parliament was adopted in the year 1973 after the introduction of the Constitution (Thirty-second Amendment) Bill, 1973 in the Lok Sabha. After the dissolution of the Lok Sabha in 1977, the Joint Committee became inoperative.

The Constitution (Forty-Eighth Amendment) Bill, 1978

On the 28th of August 1978, the constitution (fourth-eighth Amendment) Bill was proposed in Lok Sabha. This was met with strong opposition from both ruling and opposition parties, as the members had not been consulted on the provisions of the Bill, despite the Statement of Objects and Reasons claiming that it had been “examined in consultation with the leaders of political parties.” In light of the opposition, the Minister withdrew the motion for introducing the Bill.

The Constitution (Fifty-second Amendment) Bill, 1985 (Anti-defection Law)

The Government introduced the Constitution (Fifty-second Amendment) Bill in the Lok Sabha on 24 January 1985, which, if passed, would amend Articles 101, 102, 190, and 191 of the Constitution as well as add the Tenth Schedule. This Bill was approved by the Lok Sabha and Rajya Sabha on 30 and 31 January 1985 respectively and came into force on 1 March 1985. The Members of Lok Sabha (Disqualification on ground of Defection) Rules, 1985, designed to implement the provisions of the Tenth Schedule, came into effect on 18 March 1986.

The constitutionality of the Tenth Schedule was challenged in the Supreme Court in the year 1992 in a landmark case of Kihoto Hollohan v. Zachillhu and others, 1992 In 2003, the 91st Amendment was passed to make the anti-defection law more effective to deal with regular defection. It deleted the provisions that protected the legislators in case of a split in the party. It also mentioned that if any legislator is disqualified under Tenth Schedule would be disqualified from the executive and ministerial posts as well.

In Keisham Meghchandra v. The Hon’ble Speaker Manipur (2020), the court held that they need to set an external means to deal with defection cases. Justice Rohinton Nariman has suggested that the Constitution be amended to substitute the Speaker of the Lok Sabha and Legislative Assemblies, with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, to ensure that disputes concerning disqualification are decided swiftly and impartially. This would help in giving real teeth to the provisions of the Tenth Schedule of the Constitution, which are essential for the proper functioning of our democracy. The recent political crisis in Maharashtra has brought to the forefront the roles of the Governor and the Speaker, and the need to review the anti-defection law.

ANTI–DEFECTION LAWS AROUND THE WORLD

The majority’s rule is a fundamental part of democracy, and it can often be difficult for political parties to agree to negotiations or deals. Political defection has become a common occurrence in the majority of democratic countries.

In developed democracies, the ideologies of ethics, morality, culture, and philosophy have been so deeply ingrained in the public consciousness that the coordination of governance is nearly perfect. As a result, there is little need for an Anti-Defection Law like the one in India. However, this does not mean that defections of members of political parties do not occur in these countries.

• UNITED STATES OF AMERICA

The role of a Legislator in the United States is a bit unique when compared to other countries. They might have to generally adhere to the ideals of the political parties they represent when it comes to legislation and procedures, but they do have more freedom to take decisions independently when compared to Indian leaders. Party affiliations do not necessarily control how leaders vote as the party lines often get blurred when it comes to major legislative action.

• NIGERIA

The Constitution of Nigeria does not formally define what constitutes ‘defection’, however, Section 68(1)(g) of the 1999 Constitution outlines the conditions under which a Member of the Senate or the House of Representatives must vacate their seat in the House. This section states that if a Member whose election was sponsored by a political party becomes a member of another political party before the expiration of the period for which the House was elected, they must vacate their seat. This does not apply if the Member’s change of party is a result of a division in the political party, they were previously a member of or a merger of two or more political parties or factions by one of which they were previously sponsored. Given Nigeria’s young democracy, the issues of political defection are still largely unresolved and are yet to be fully addressed and tested by the Legislature.

• UNITED KINGDOM

In the United Kingdom, it is not uncommon for members of Parliament to switch their party affiliations. Between 1979 and 1983, 31 mainly Labour members left their party to join the Social Democratic Party (SDP). Between 1987 and 1992, three members left their party, two were expelled and two had their whips (MPs) withdrawn (temporarily). Likewise, between 1992 and 1997 four members left their parties, eight whips were withdrawn (temporarily) and two whips resigned (temporarily). Finally, between 1997 and 2001 two members left their party, and four whips were withdrawn or suspended (two temporarily). In May 1976, the Labour Party lost its majority in the House of Commons, partially due to one member changing party. No laws or Standing Orders exist which require members to register their party affiliations, nor are there any consequences if a member changes parties. They are not required to resign and, although seating in the House is governed by convention, an expelled member would normally be seated separately from the party. In the House of Lords, where members are appointed and hold their seats for life, the political balance is indirectly influenced only by elections, as the Government can appoint as many supporters as they wish. Approximately one-third of the members

CONCLUSION

In conclusion, India’s anti-defection laws have been in place for over three decades and have been instrumental in curbing the problem of political defection. The laws have been amended multiple times over the years and have been successful in maintaining the stability of India’s political system. They have also been effective in protecting the integrity of the electoral process and ensuring that elected representatives remain loyal to their respective parties. The laws placed in India regarding defection are much more liberal when compared to other systems prevailing in other democracies. The anti-defection laws are an important part of India’s democracy and should continue to be enforced to ensure the success of the country’s political system.