Introduction:

Defection is defined as “a member of a political party
abandoning his or her commitment to that party” or, more simply,
“when an elected representative joins another party without resigning from
his or her current party in exchange for rewards.”

Defection is the institutional malaise, and switching parties
is state-neutral, party-neutral, and politics-neutral.

The Anti-Defection Law was enacted in 1985 as part of the
52nd Amendment to the Indian Constitution, which added the Tenth Schedule.

The law’s principal goal was to counteract “the evil of
political defections,” which could occur as a result of a payment for
office or other comparable factors.

Both Parliament and state legislatures are subject to the
statute.

However, there are a number of concerns with how this law
operates.

Body:

Some sitting MLAs in the Manipur administration recently
switched to the opposition, causing political uncertainty in the state. This
defection politics in Manipur is not unusual; defections have also occurred
recently in Karnataka, Madhya Pradesh, Arunachal Pradesh, and Uttarakhand.

Background:

Political defections by members of the legislature have
influenced the Indian political system for a long time. The political system
became more unstable and chaotic as a result of this predicament.

In 1985, the 52nd constitution amendment act on
anti-defection was passed, and the 10th Schedule was inserted to the Indian
Constitution to combat the evil of political defections.

The 91st Constitution Amendment Act of 2003 was adopted with
the goal of reducing the size of the Council of Ministers, prohibiting
defectors from holding public office, and strengthening anti-defection
legislation.

Current Anti-defection legislation has the following
flaws:

Anti-defection legislation has failed to prevent “horse
trading” and defection, resulting in the overthrow of governments due to
the machinations of corrupt legislators.

For example, in Karnataka, 17 members of the coalition
government resigned, resulting in a government change. Later, the 17 MLAs ran
for the party that established the new administration.

Individual defections are prohibited by law, but bulk
defections are not.

For example, the Congress administration in Madhya Pradesh
lost its majority due to MLA resignations.

Against the genuine spirit of representative democracy:
The anti-defection law aims to maintain government stability by preventing
legislators from switching sides.

This statute, however, prohibits legislators from voting in
accordance with their conscience, judgment, and the interests of their
constituents.

Impairs legislative supervision of government: The
anti-defection statute obstructs the legislature’s oversight duty over the
government by guaranteeing that members vote based on party leadership
decisions.

In other words, if parliamentarians are unable to vote on
legislation independently, they will be unable to serve as an effective check
on the administration.

In effect, the Anti-Defection Law weakens the separation of
powers between the Executive and the Legislature, concentrating power in the
hands of the executives.

The presiding officer of the House has the authority to
disqualify parliamentarians on the basis of defection by the Presiding Officer
of a legislature in response to a petition from any other member of the House.

However, there are other cases in which presiding officials
serve the entrenched interests of a ruling political party or government.

Furthermore, the statute makes no provision for the Presiding
Officer to make a decision on a disqualification plea within a specific time
frame.

As a result, the ruling is sometimes reliant on the presiding
officer’s whims and fancies.

Has an impact on debate and discussion: In India, the
Anti-Defection Law has created a democracy based on parties and numbers rather
than debate and discussion.

It makes no distinction between dissent and defection in this
way, weakening Parliamentary debates on any measure.

Speaker’s Authority ruling by the Supreme Court:

The Supreme Court’s recent judgment on the Speaker as the
adjudicating authority under the anti-defection law has two major implications.

The first is that Parliament should appoint a “permanent
tribunal” or external mechanism to make speedy and impartial verdicts on
defection cases in place of the Speaker.

Few would argue with the Court’s assessment that initial
concerns and misgivings regarding Speakers’ impartiality had been realized.

The second is its remarkable finding that a major question
referred to a Constitution Bench by another Bench in 2016 was superfluous.

The question before a bigger Bench is whether courts have the
authority to order Speakers to decide disqualification petitions within a set
time frame.

The issue arose because numerous presiding officers have
permitted defectors to increase the strength of ruling parties and even be
sworn in as Ministers simply by refusing to hear accusations against them.

Defections in large numbers have occurred in some states
shortly after elections.

Speakers have been intentionally breaking the law, believing
that no court would question the delay in disposing of disqualification cases
as long as the matter was ongoing before a Constitution Bench. This has aided
the ruling party, which is generally the one that helped them get to the Chair.

It is past time for Parliament to reconsider whether
disqualification petitions should be entrusted to a Speaker as a quasi-judicial
authority while the Speaker remains a de jure or de facto member of a political
party.

Restriction on the Speaker’s discretion: According to a
recent Supreme Court ruling, the Speaker must make a decision on
disqualification within three months of receiving the application. It cannot be
the Speaker’s decision to take no action.

Steps to take:

The Speaker’s decision to exclude a legislator is based on
the Speaker’s institution.

In many states, the Speaker’s partisan position has ensured
that turncoat politicians remain genuine members of the House.

Various commissions, including the National Commission to
Review the Workings of the Constitution (NCRWC), have recommended that, on the
advice of the Election Commission, the President (in the case of MPs) or the
Governor (in the case of MLAs) make the decision to disqualify a member rather
than the Presiding Officer.

Independent disqualification committee: In the Hollohan
decision, Justice Verma stated that the Speaker’s tenure is contingent on the
continued support of the House majority, and hence he does not meet the
criteria of such independent adjudicatory authority.

Furthermore, his selection as the only arbitrator in the case
breaches a fundamental characteristic of the basic feature.

As a result, an impartial body to deal with incidents of
defection is required.

Conclusion:

This is an opportune opportunity to follow the advise of eminent
constitutional experts and revise the anti-defection law to provide an
autonomous body the power to dismiss turncoats.

The court has thus established a window for judicial
involvement in circumstances when Speakers refuse to act, as “failure to
exercise jurisdiction” is now a recognized stage at which the court might
interfere.

This bodes well for the text and spirit implementation of the
legislation prohibiting desertion.

In light of Speakers’ partisan behavior, the report recommends that
Parliament change the Constitution to create a permanent tribunal to hear
issues under the 10th Schedule.