The Calcutta High Court has given West Bengal Assembly Speaker a deadline to pass an order in the defection case involving 3 MLAs.

Anti-defection law and its purpose:

=> These laws were introduced as the Tenth Schedule via the 52nd Amendment Act, 1985 after multiple incidents like Aaya Ram, Gaya Ram. It sets the provisions for disqualification of elected members on the grounds of defection to another political party.

=> Purpose of the Law: To bring stability to governments by discouraging legislators from changing parties. It ensures that the Party ideologies prevail over individual interests in Indian Parliamentary Democracy.

What constitutes Defection?

=> The law covers 3 kinds of scenarios as grounds for disqualification. Legislators elected on the ticket of one political party “voluntarily give up” membership of that party or vote in the legislature against the party’s wishes.

=> A legislator’s speech and conduct inside and outside the legislature can lead to deciding to voluntarily give up membership. When an MP/MLA who has been elected as an independent joins a party later.

=> In the case of Nominated legislators, the law specifies that they can join a political party within 6 months of being appointed to the House, and not after such time.

=> As per the 1985 Act, a 'defection' by one-third of the elected members of a political party was considered a 'merger'. But the 91st Constitutional Amendment Act, 2003, changed this.

=> Now at least two-thirds of the members of a party have to be in favour of a "merger" for it to have validity in the eyes of the law.

Who is the Deciding Authority?

=> Violation of the law in any of the aforementioned scenarios can lead to a legislator being penalised for defection.

=> The Presiding Officers of the Legislature (Speaker, Chairman) are the deciding authorities in such cases.

=> The Supreme Court has held legislators can challenge their decisions before the higher judiciary.

Key Controversies surrounding Defection Laws:

=> No time frame was provided for Presiding Officer to decide in Law

There have been many instances when a Speaker has not determined the case of a defecting MLA until the end of the legislature term. There have also been instances of defecting MLAs becoming ministers while a defection petition against them has been pending before the Speaker. Last year, the Supreme Court dismissed a minister in Manipur when the Speaker did not decide the defection petition against him even after 3 years. The court held that ideally, Speakers should take a decision on a defection petition within 3 months.

=> Lost individualism of MLAs/MPs

The anti-defection law punishes individual MPs/MLAs for leaving one party for another. But it allows a group of MP/MLAs (2/3rd of elected) to join (i.e. merge with) another political party without inviting the penalty for defection.

=> No onus on Accepting Parties

It does not penalise political parties for encouraging or accepting defecting legislators.

=> Failed to ensure the stability of governments

Parties often have to sequester MLAs in resorts to prevent them from changing their allegiance or getting poached by a rival party. Recent examples are Rajasthan (2020), Maharashtra (2019), Karnataka (2019 and 2018), and Tamil Nadu (2017). Parties have also been able to use the anti-defection law to their advantage. In 2019 in Goa, 10 of the 15 Congress MLAs merged their legislature party with the BJP. In the same year, in Rajasthan, six BSP MLAs merged their party with the Congress (the case being heard in the Supreme Court), and In Sikkim, 10 of the 15 MLAs of the Sikkim Democratic Front have joined the BJP.

Suggestions to improve the law:

=> Some commentators have said the law has failed and recommended its removal. Former Vice President Hamid Ansari has suggested that it must apply only to save governments in no-confidence motions. The Election Commission has suggested it should be the deciding authority in defection cases.

=> Others have argued that the President and Governor should hear defection petitions.

=> Last year, the Supreme Court said Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.