ABSTRACT
Anti-Defection Law (ADL), in the Tenth Schedule of the Indian Constitution, had been brought into being by the 52nd Amendment Act of 1985 to stop the vice of political defections and provide stability in governance. Judicial review especially in historic cases such as Kihoto Hollohan v. Zachillhu and Keisham Meghachandra Singh, has made an effort to introduce constitutional protections, however, continuous stalling and political judgments require wholesome reforms, such as the creation of an independent tribunal and application of stringent timelines to make decisions.
INTRODUCTION
Political defections, which could be described as the willful neglect of loyalty or duty, are a danger to the very longevity of the government as well as the soundness of the party system, thereby breaking the will of the people. The defects were rampant in the 1960s and 1970s in India, which was marked by the absence of control over venality and a high frequency of government collapses. To this the Constitution (Fifty-Second Amendment) Act, 1985 came up with the Tenth Schedule so that legislators could not shift parties due to political or personal motives.
The ADL is meant to prevent those who leave due to the temptation of office or material benefits, keep the party stable and ensure that there is a sense of discipline as the party whip enforces adoption of the party line during voting. The act has however come under heavy criticism of blurring the line between legitimate parliamentary dissent and defection, thus suppressing freedom of expression among house members. This indeterminacy, and the structure of the implementation, which gives almost absolute adjudicatory authority to the Speaker (or Chairman) of the House, have led to the law being subject to manipulation and partisan influence. Its further development in the form of judicial dilemmas and law interpretation requires an economic and legal rethink to deal with its inherent shortcomings.
KEYWORDS
Public Choice Theory, Game Theory, Anti-Defection Law, Judicial review.
Economic Analysis of Defection and Rationality:
The economic theories such as Public Choice Theory can be used to study the efficiency and effectiveness of the ADL. The school of thought is defined as the science of politics without romance because it analyzes group decision making processes on the basis of individual preferences and incentives in shaping the public policies. The Speaker, under the Public Choice Theory, is considered to be a rational man who tries to maximize utility, and therefore will act in their interest, which is often for the will of their political party. This partisan rational decision-making is causing a slow disqualification process, or biased decision-making, which leaves no serious penalties other than ethical implications.
Strategic interactions can be analyzed with the help of Game Theory and especially the Prisoner Dilemma model and the idea of repeated games. The recurrent cases of defections, which are sometimes not noticed at all or indefinitely postponed by the Speaker, support a scenario of repetition game theory, in which the defectors are all too conscious of no consequences of their actions.
The Parliamentary Dissent Crisis:
Paragraph 2(1)(b) of the Tenth Sschedule mixes up the justifiable dissent and defection. In the Indian system of parliament, where individual decision-making is rooted in debate and discussion, this clause works well to inhibit the individual decision-making of a parliamentarian, obliging him or her to follow the directives of the party whip faithfully. This limitation has been associated with a radical decline in the degree and scope of legislative discussion.
The Speaking Judge and Judicial Intervention:
Under the Tenth Schedule Paragraph 6, the ADL deals with the authority of making disqualification decisions on the Speaker or Chairman. But since the Speaker is an elected member of a majority party and is still a member of the party, this concentration of power has been a source of disrepute to the office with overt examples of overt partisanship.
In the recent case of Telangana, the Supreme Court pointed to the over seven-month time lag of the Speaker in providing notices on disqualification petitions against defectioning MLAs, saying it was comparable to operation successful, patient died.
The principal case that regulates judicial inquiry is that of Kihito Hollohan v. Zachillhu 1992 SCR (1) 686, 1992 SCC SUPL. (2) 651. The Supreme Court in its decision to maintain the constitutionality of the Tenth Schedule confirmed that the Speaker is a Tribunal in making disqualification decisions. As a result, the review of the decision of the Speaker by the Court is possible based on Articles 136, 226, and 227 of the Constitution on the reasons of mistakes in jurisdiction, mala fides, violation of natural justice, and perversity. More importantly, the Kihoto ruling expressly stated that judicial review may not be invoked at any point before the decision has been made by the Speaker, prohibiting quia timet activity.
In Keisham Meghachandra Singh v. The Hon’ble Speaker Manipur Legislative Assembly & Ors. AIRONLINE 2020 SC 54, (2020) 2 SCALE 329 the Supreme Court dealt with the failure of the Speaker to act fairly and promptly. Justice Nariman wondered whether it was practical to expect impartiality on the part of a speaker based on party loyalty, and proposed that the jurisdiction be vested in a disinterested body. Most importantly, the Court stipulated that the disqualification petitions unless under extraordinary circumstances should be ruled upon within a time span of three months of the filing date so that disqualification is prompt and fair. The Supreme Court has carried on using the power to issue directions to speakers to determine petitions within a fixed time limit declaring that it is not powerless where a speaker chooses to delay decisions and can impose compliance under Article 142.
Loopholes and Structural Deficiencies
There are structural loopholes in the law. The merger exception (Paragraph 4) that affords protection to the members against disqualification in case two-thirds of the legislative party decides to merge with another political party allows a wholesale defection to circumvent the law.
The nexus between corruption and voting also leads to the structural deficiencies. Although the ADL attempted to combat corruption in the House floor, bribery members could not be prosecuted on the basis of voting in bad faith, ruled the Supreme Court in the P.V. Narasimha Rao v. According to the ADL, state judgment is a poor panacea to the malaise of cash-for-votes.
CONCLUSION
The Political realities and the institutional design have destroyed the Anti-Defection Law concept which was developed in order to enhance the Indian parliamentary democracy through stabilizing governments and preventing unethical defections. Basic legal and administrative changes are needed to correct these vices. Based on the suggestions made by different committees and judicial commentaries, the urgent actions are:
To retain the right of the legislative member to conscientious dissent on non-essential matters, it is only necessary to restrict the application of disqualification following defiance of the party whip (Paragraph 2(1)(b)) to issues that threaten the stability of the government, e.g., motions of confidence or no-confidence.
Through a policy that will maintain the balance between stability and accountability, one will have the ability to make the ADL serve the constitutional purpose, and the Tenth Schedule will not turn meaningless, which will help preserve the democratic spirit of the legislature.
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WRITTEN BY Manisha Kunwar
