weakness of anti defection law
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Baffling is the political turmoil in Karnataka. The eventful roller coaster ride of political events is over with the fall of the Congress-JD(S) government and the crowning of Yediyurappa as Chief Minister. Still, the issue of disqualification of the defected MLAs looms large, pending the decision of the Speaker. For the legal community and politicians alike, the Karnataka issue has thrown open concerns over anti-defection laws.
With the framing of Constitution, we adopted the Westminster System of representative democracy followed in Britain in the formation of our Legislatures. The leader who enjoys the majority support of the Legislature is chosen as the head of the government. This is in essence the concept of representative democracy contemplated by the framers of the Constitution.
The loyalty of the legislators to the constituency is given primacy. It is curious to note that when the Constitution was originally adopted, the party system was not recognised by the Constituent Assembly. It was only in 1985 that the anti-defection law was engrafted into the Constitution with the insertion of the Tenth Schedule.
In a way, the Anti-Defection Law was subject to scathing attack by Constitution experts and law men, as it was an invasion on the free speech guaranteed to legislators. The legislators are supposed to take part in the law making process with empirical data collected from their constituencies about the various issues of the electorate which needs legislative intervention. But the legislation so mooted must also be in alignment with the larger national interest.
The Anti-Defection Law of 1985
During late 1970s, our country witnessed nefarious floor crossing by legislators in total disregard of the democratic wishes of the electorate who returned them. This engaged the attention of all the political parties in the Parliament, resulting in adopting a unanimous resolution for the constitution of a Committee to study and report on the issue of defection.
Based on the recommendations of the Committee, the 32nd Constitution Amendment Bill was introduced for disqualifying defected legislators from holding ministerial births. This Amendment Bill lapsed with the dissolution of Lok Sabha. This attempt was followed by the 48th Constitution Amendment Bill with the same tenor and terms of the lapsed Bill. At last in 1985, when Rajiv Gandhi became Prime Minister with a brutal majority, the Tenth Schedule was knitted into the Constitution along with the anti-defection law.
Anti-Defection Law in other Countries
A survey of Parliamentary practices and conventions prevailing in other democracies in the world would point out that anti-defection laws are in its infancy stage. Among the Commonwealth countries, anti-defection law is prevalent in 23 nations. The anti-defection law in Bangladesh, Kenya, South Africa and Singapore disqualifies a legislator on his ceasing to be member of the party or when he is expelled.
The perceptible presence of anti-defection laws in countries where democracy is in a growing stage indicate that the legislators in those countries are less informed on the principles of democracy, but are more rapacious on gaining more political and monetary ascendancy.
But the political ambience in developed democracies poses a picture of legislators with democratic values and freedom of speech equally combined in themselves. The freedom to dissent with the policy of the political party to which a legislator owes allegiance is ensured by the “collective conscience” of the electorate, to which alone the legislators are primarily responsible.
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