Anti-Defection Law- Liberate the Legislator

Tenth Schedule—

The Constitution (Fifty-second Amendment) Act, 1985 added the Tenth Schedule to the Indian Constitution to curb the growing tendency of political defections by parliamentarians and legislators from one party to another after elections.

The evil of political defections has been a matter of political concern and if it is not combated it is likely to undermine the very foundations of our democracy and the principles that sustain it

Disqualification— Members of Parliament and State legislatures are liable for disqualification if they leave the political party on whose symbol they got elected and join another, or violate the party whip to vote a certain way in the House.

The one-third bar—

Honest Dissent: While penalising individual acts of defection, it recognised the principle of splits whereby if one-third of the members of a legislative party broke away and formed a separate group or joined another political party, they could continue as members of the legislature (individual defections have turned into a mass-scale malady)

Constitution (Ninety-first Amendment) Act, 2003:

The National Democratic Alliance government of Atal Bihari Vajpayee sought to address this aberration by omitting paragraph three from the Tenth Schedule that allowed one-third of the parliamentarians/legislators to split from their parent party— raised the wholesale defection bar from one-third to two-thirds

Left paragraph four in place, which allows two-thirds of the members of a parliamentary/legislative party to merge with an existing political party or form a new political party

Injustice to a legislator's right to vote:

Legislators have become mere hostages of whip-driven tyranny (actual power residing in the political party)—Unable to vote according to his conscience, convictions, common sense and constituency concerns

The party whip— Directs its members which way to vote practically on each and every bill (enforced adherence - a member invariably ends up voting for a bill if he/she is on the Treasury benches and against a bill if he/she is in the Opposition; parliamentarians sometimes voting against a legislative instrument which they had supported previously, depending on whether their party occupies the Opposition or Treasury benches)

Disincentivises lawmakers from seriously thinking, researching or even striving for best practices to incorporate into legislation that is before the House for consideration and focus their energies on procedural matters

Absence of a sunset clause— If a bad law is enacted, it remains on the statute books for at least a century

Recent Trend: The usage of House majorities to get even Private Members- Bills defeated at the introduction stage thus, restricting whatever little space individual members have left for legislative activity

Increasing Moral Deviations & Anti-Defection Policies:

Criminalisation of politics, disrespect to parliamentary conventions, parliamentary disruptions and improper conduct of members, has added to the glaring legislative paralysis.

The intention behind bringing in Anti-Defection law was to curb political defections, promote party discipline and bring stability in the structures of political parties; on the contrary, it has led to the following:

oCurbs the Right to Dissent & Freedom of Conscience

oBan on retail defections & legalisation of wholesale defections

Empowering the Legislator

For the empowerment of the individual to coexist with the imperatives of political stability and public probity— The Tenth Schedule needs certain adaptations and further strengthening so as to be of greater relevance to our democratic process today.

Tweaks that can help:

The disqualification of a member of a House could be made compulsory only on the grounds that if he votes or abstains from voting in the House with regard to-

Confidence Motion,

No-confidence Motion,

Adjournment Motion,

Money Bill

or financial matters contrary to the direction issued in this behalf by the party to which he belongs to (as enumerated in Articles 113 to 116 (both inclusive) and Articles 203 to 206 (both inclusive))

These little changes possesses the potential to free up the legislative space and ensure that every government strives not only for cross-party consensus on legislation but reaches out to individual lawmakers rather than just their leaderships (deepen participatory law-making)