West Bengal Assembly Speaker Biman Banerjee has dismissed the petition filed by Leader of the Opposition Suvendu Adhikari seeking Mukul Roy’s disqualification as an MLA under the anti-defection law for switching sides after elections. 

• Mukul Roy, a former BJP national vice-president, had defected to the ruling TMC in June last year. 
• Roy would now continue as a BJP legislator in the House in the wake of the ruling. 

The High Court ruling:

The high court had asked the Speaker to take a decision on the petition for Roy’s disqualification as a member of the House by October 7. 

• In case of failure, the court said that it would take a call on the matter. 
• Even the Supreme Court had expressed hope that the Speaker will take a decision on the disqualification plea soon. 

What is the anti-defection law?

The anti-defection law was included in the Constitution as the Tenth Schedule in 1985 by the 52nd Amendment Act to combat the “evil of political defections”. 

• The main purpose was to preserve the stability of governments and insulate them from defections of legislators from the treasury benches. 
• The law stated that: any Member of Parliament (MP) or that of a State legislature (MLA) would be disqualified from their office if they voted on any motion contrary to the directions issued by their party.

Key features of The Tenth Schedule:

• It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
• The law applies to both Parliament and state assemblies.

It describe the conditions under which a member be disqualified. These are:

If a member of a house belonging to a political party-

1. Voluntarily gives up the membership of his political party, or
2. Votes, or does not vote in the legislature, contrary to the directions of his political party.
3. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
4. If an independent candidate joins a political party after the election.
5. If a nominated member joins a party after the six months of becoming the member of the legislature.

Exception:

The legislators may change their party without the risk of disqualification in certain circumstances:

• If a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
• In this case, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

Range of the provision:

The provision of anti-defection law was not limited to confidence motions or money bills (which are quasi-confidence motions).

• It applies to all votes in the House, on every Bill and every other issue. 
• It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government. 
• Therefore, an MP (or MLA) has absolutely no freedom to vote their judgement on any issue. They have to blindly follow the direction of the party. 
• This provision goes against the concept of representative democracy.

Eroding legislatures:

An important consequence of the anti-defection law is the hollowing out of our legislatures.

• If an MP has no freedom to take decisions on policy and legislative proposals, what would be the incentive to put in the effort to understand the different policy choices and their outcomes? 
• The core role of an MP to examine and decide on policy, Bills and budgets is side-lined. 
• Instead, the MP becomes just another number to be tallied by the party on any vote that it supports or opposes.

Accountability and anti-defection law:

 While introducing the draft Constitution, Dr. B.R. Ambedkar outlined the differences between the presidential and parliamentary forms of government. 

• He said that the presidential form (such as in the United States) had higher stability but lower accountability as the President is elected for four years, and cannot be removed except for proven misdemeanour.
• In the parliamentary form, the government is accountable on a daily basis through questions and motions, and can be removed any time it loses the support of the majority of members of the Lok Sabha. 
• The drafting committee believed that India needed a government that was accountable, even at the cost of stability. 

The anti-defection bill weakens the accountability mechanism.

Inducing instability:

The anti-defection law does not even provide stability. The political system has found ways to topple governments. 

• This includes the methods used in Puducherry this week — of reducing the total membership through resignations. 

• The Constitution was amended to ensure that any person disqualified for defecting cannot get a ministerial position unless they are re-elected; the way around this has been to resign rather than vote against the party.
• In other instances, the Speaker — usually from the ruling party — has delayed taking a decision on the disqualification. 
• The Supreme Court has tried to plug this by ruling that the Speaker has to take the decision in three months, but it is not clear what would happen if a Speaker does not do so. 

Onus is on parties:

The problem arises from the attempt to find a legal solution to what is essentially a political problem. 

• If stability of government is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal systems. 
• If they attract members on the basis of ideology, and they have systems for people to rise within the party hierarchy on their capabilities (rather than inheritance), there would be a greater exit barrier. 
• These characteristics seem absent in many of the political parties, and we have seen a large number of defections despite the anti-defection law.

Conclusion:

To sum up, the anti-defection law has been detrimental to the functioning of our legislatures as deliberative bodies which hold the executive to account on behalf of citizens. It has turned them into fora to endorse the decision of the government on Bills and budgets.

Source: The Hindu