Critically examine the implications of the following developments upon separation of powers between legislative and executive in India – (1) Anti-defection law (2) 91st Amendment of the Constitution.

May 16, 2022 February 21, 2024

The doctrine of separation of power implies that each pillar of democracy – the executive, legislature and the judiciary – perform separate functions and act as separate entities. It forms a part of the basic structure of the constitution even though it is not specifically mentioned in its text.

Anti-defection law – Passed in 1985, it created The Tenth Schedule and deems an MP or MLA as defected if he/she voluntarily resigned from the party or disobeyed the directives of the party leadership on a vote, that is, they may not vote on any issue in contravention to the party’s whip. The implications are:
1. The law has been criticized as subverting the democratic rights of elected MPs and impinging on the rights of free speech of the legislators though the SC has ruled otherwise (Kihoto Hollohon vs Zachillhu And Others (1992) case),
2. It seems to impinge on the autonomy and independent decision making ability of the legislature,
3. The debates have become party centric rather than issue centric.
This has affected the voting behaviour of MPs and MLAs even on issues not related to the stability of the government as they are generally unable to express their actual belief or the interests of their constituents. Therefore, a case may be made for restricting the law to confidence and no-confidence motions. The Dinesh Goswami Committee on electoral reforms (1990) recommended this change.

The 91st Amendment to the Constitution (2003) firstly, capped the upper level of Ministers to 15% of the strength of the “popular house of the legislature” and secondly tightened the anti-defection provisions of the Tenth Schedule, enacted earlier in 1985, by making it mandatory for all those switching political sides, whether singly or in groups, to resign their legislative membership and they now had to seek re-election if they defect. Now at least 2/3rd of the party members had to leave the party so that it did not qualify as defection. Thus, it tipped the scale further in favour of the executive as the MPs (legislature) now have to tow the party line which is mostly dictated by the senior ministers who are usually the part of the executive.
However, there have been instances wherein after the declaration of election results, winning candidates have resigned from their membership of the House as well as the party from which they got elected. Immediately, they have joined the political party which has formed the government and have again contested from that political party, which appears to be a fraud and goes against the spirit of the democracy. It has also led to the practice of states appointing parliamentary secretaries to assist council of ministers to somehow bypass the barrier of 15% set by the Amendment.

So, all in all, we can say that these laws, have somewhat suppressed the existing intra party democracy, and these developments have undermined the parliamentary feature of executive being a part of and accountable to legislature [Art 74(1)]. The members of legislature needs to be effectively empowered and ensured sufficient independence to hold government accountable irrespective of their party affiliations because the legislators in assembly are representatives of the people more than the being the representatives of their party.