Threatening Indian Democratic System_ Case of Anti-Defection Law

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  roundtableindia.co.in  Santosh Kumar Published on 09 September 2016 Santosh Kumar  Abstract Once touted as one of the most vibrant democracies based on modern principles, Indiandemocracy has gradually slipped to a chaotic governance system. For the mainstream Indian political parties, this may be due to the past legacy of British laws resulting insharp differences between caste, region and religion as the divisive principles. However,the Indian constitution was built on modern principles to unite the diverse peoples forsolving problems of the poverty stricken population. But as the historically subjugated  population started asserting their political rights guaranteed by the Constitution, theanti-defection law with fundamentally undemocratic principles was allowed to overtakethis vibrant democracy. Western political philosophers would be surprised to know that the individual parliamentary member does not have a right to dissent within the parliament, and members may lose their house membership in case they vote against thewishes of their respective parties within the house. This paper provides detailed evaluation of the anti-defection law and how it is against the fundamental principles of modern democracy. The primary target of this paper is the political science student,however, it should be of interest to a broad readership including those interested in lawand governance. Keywords: Anti-defection law, Constitution, Politics, Democracy, Parliament, Political  party Threatening Indian democratic system: Case of Anti-Defection Lawabout:reader?url=http://roundtableindia.co.in/index.php?option=com_c...1 of 1924-03-2017 10:06 PM  Introduction Schedule X of the Constitution of India, containing the anti-defection law, was enactedafter three and half decades of India's experience with parliamentary democracy. Duringthe initial 15 years of Indian parliamentary democracy, the first Prime Minister Mr. JLNehru led the government with Congress party majority. The phenomenon of defection became more apparent from the 4th Lok Sabha, that is, from 1967 onward. As per thedebates of Rajya Sabha during the discussion of the bill, it was explained that the defectionphenomenon really happened when the Congress Party suffered reverses - in some of theStates in the elections, resulting in the reduced majority of the Congress Party in the Lok Sabha. (Rajya Sabha debate 1985)Post Nehru era, multiple factions within the Congress party started to emerge along withmore representation of opposition parties. Further, India experienced the mosttumultuous period of Emergency which tested the strength of Indian constitution andparliament. The 70s era marked floor crossing as a common problem facing all parties, wherein any member changes his/her stance abruptly just before the voting inside the Threatening Indian democratic system: Case of Anti-Defection Lawabout:reader?url=http://roundtableindia.co.in/index.php?option=com_c...2 of 1924-03-2017 10:06 PM  parliament, probably many times due to monetary allurement. After many cases of floorcrossing on crucial voting, the term Aaya Ram Gaya Ram was coined to describe thisphenomenon in the mass media.Mrs. Indira Gandhi introduced the constitution amendment bill against defection in May 1973; but the proposal could not be passed in the next two years. Finally, the bill wasovertaken by imposition of Emergency, the biggest threat to the Indian democratic system,and it was given a decent burial. (India Today 2015).The anti-defection law, also known as 'dal badal kanoon', was passed by parliament in1985, in the aftermath of Mrs. Indira Gandhi's assassination, by Mr. Rajiv Gandhi'sCongress government who enjoyed three-fourths majority in parliament. The law wasamended once by the 91st Amendment in 2003 under Atal Bihari Vajpayee's NDA Govt. Functioning of the law  The 52nd amendment, containing the anti-defection law, of the Constitution added theTenth Schedule which laid down the process by which legislators may be disqualified ongrounds of defection. An elected member of parliament (MP) or state legislature (MLA) isconsidered to have defected, in case he either voluntarily resigned from his party ordisobeyed the directives, in the form of whip issued by the party, on a vote. Hence, theelected members must not vote or abstain on any issue in the parliament against theparty's whip. This whip issuance needs profound probing in terms of freedom of expression and liberty.Independent members, elected without any party ticket, are also disqualified if they joineda political party after election. A nominated member can be disqualified if the person joinsany political party after the expiry of six months from the date of nomination.  Exceptions The law also made a few exceptions. The law initially permitted splitting of parties with afaction claiming minimum one third members as a separate group, but that has now beenoutlawed with the constitutional amendment in 2003. Also, a party could be merged withminimum two third members into another political party. The members may decide to join the newly formed party or function as a separate group. Further, any member electedas speaker or chairman can resign from his party, and rejoin the party after demitting thatpost.  Authority The law states that only the presiding officer i.e., Chairman or the Speaker of a House, can Threatening Indian democratic system: Case of Anti-Defection Lawabout:reader?url=http://roundtableindia.co.in/index.php?option=com_c...3 of 1924-03-2017 10:06 PM  make decisions on disqualification of a member under this Schedule, and his/her decisionis final. If a question arises on the presiding officer on the subject of disqualification, thenthe decision shall be made by a newly elected presiding officer. The law states that thePresiding Officer's decision is final and not subject to judicial review. The Supreme Courtstruck down this condition partly and held that no judicial intervention shall be made untilthe presiding officer gives his order. However, the final decision can be appealed in theHigh Courts and Supreme Court. The Intent of Law   Assuming the right intent of lawmakers, the legislation was aimed ●  To reduce the power of money used for alluring elected member to make or break agovernment and strengthen parliamentary democracy by prohibiting floor-crossing. ●  To bring stability to the government & political parties; and not let the government heldat ransom on few elected members. ●  To make elected members more responsible to the group of voters who have voted dueto loyalty to the party. ●  To make the elected member loyal to the political party, on whose party symbol theperson got elected to the house.However, with hindsight, outlawing party defections invites observers to speculate aboutthe framers' intentions. Was it to produce competitive party systems or to consolidatepower within existing parties? (Kenneth Janda 2009). The author may like to believe thatthe law was proposed with some wrong intentions, and besides that it has led tounintended consequences including an autocratic party system, quelling of dissent andmaking of false leaders. Let us analyze why the anti-defection law, even though looking sopromising and attractive, can compromise the democratic system. Making of Undemocratic System  Freedom to vote The first casualty caused due to this law is prohibition of elected members to vote withinthe house as per their choice, conviction and conscience. Freedom to vote or abstain from voting as per conscience is very much part of the constitutional right under Powers,Privileges and Immunities of Parliament granted to the members of parliament. Article 105(2) of Constitution of India has the following provision: No member of Parliament shall be liable to any proceedings in any court in respect of anything said orany vote given by him in Parliament or any committee thereof, and no person shall be soliable in respect of the publication by or under the authority of either House of Parliament Threatening Indian democratic system: Case of Anti-Defection Lawabout:reader?url=http://roundtableindia.co.in/index.php?option=com_c...4 of 1924-03-2017 10:06 PM
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