Relaxing the Anti-defection Act

The Constitution (Fifty-second Amendment) Act, 1985 was enacted to add the Tenth Schedule to the Indian Constitution. 10th Schedule was added in order to stop the unfair practice of political defections by parliamentarians and legislators from one party to another after elections. It makes the Members of Parliament and State legislatures liable for disqualification if after election they join another political party leaving the political party on whose ticket they got elected, or violate the party whip to vote in a certain way in the House.  The objective of the Anti-defection law is to safeguard the foundations of our democracy and the principles that sustain it.

Why it is criticized?

Initially, while the law punished individual members for the acts of defection, it allowed 1/3rd members of a legislative party to form a separate group or join another political party. The 1/3rd members continued to be the members of the House. This was referred to in the tenth Schedule in terms of “honest dissent”. This implies that those 1/3rd members broke away from the legislative party not for monetary considerations or perks but rather did so by deep ideological or policy differences. This had resulted in the conversion of individual defections into mass scale defections. This aberration was corrected through the Constitution (91st Amendment) Act, 2003. It did away with paragraph 3 from the 10th Schedule that permitted one-third of the parliamentarians/legislators to split from their original party. But it has left untouched paragraph 4 which allows 2/3 of the parliamentarians/legislators to join with an existing political party or form a new political party.

What are the consequences?

The law imposes morality against a legislator’s right to vote as per his conscience, convictions, common sense & priorities of the constituency that he represents. The mandatory provision to vote as per the Whip’s instructions has altered the fundamental character of the Westminster model of parliamentary democracy. The framers of our Constitution would never have wished to empower political parties with the legislative powers rather than the individual legislators.

Lawmaking in India has been made as a bureaucratic function rather than a transparent consultative process, which takes into account the views of all stakeholders. On top of it, party whip’s instruction on which way to vote for each and every bill has made a mockery of fundamental tenets of the constitution if not the basic structure. This discourages lawmakers to seriously think, research about the legislation that is before the consideration of the house. Instead it makes them to focus all their energies on procedural matters.

 What is the way forward?

Anti defection law should be changed in such a way that it empowers the individual legislators and at the same time takes care of political stability and public probity. It needs certain amendments to make it relevant to our democratic process today.

Whips should be issued only for those legislative items that threaten the stability of the government, like Confidence Motion, No-confidence Motion, Adjournment Motion, Money Bill or other financial matters. In this case, if a legislator acts in contrary to the direction issued by the party then he should be disqualified, otherwise he should be empowered to take his own stand based on his conscience, common sense and conviction. This little change will ensure that the government achieves cross-party consensus on legislations and reach out to the individual legislators rather than their party leaderships.