Indian Defection Laws vs. Defection Laws in other Countries

Synopsis:

This article will be covering the following subject matters.

  1. The comparison between the Anti-defection laws in India and in other nations
  2. The system of anti-defection in the countries around the world, the various relative and relevant laws to check upon the same.
  3. The Provision for Recall, the Provision for Curing the Splinter Party, The Provision for resignation, etc.
  4. An analysis of some major factors that influence the defection systems in some major countries around the world.

This article explores the magnitude of such regulation. The question that why and how often legislators are seen switching parties; why some scholars favour banning party switching; how this phenomenon has been studied; why politicians have legislated in contradiction of party defections; and the consequences of such bans for political parties and party systems which often brings up the question of floor tests. 

It has been appropriately supposed that democratic and egalitarian form of government in any nation is one of the most operative as well as effective forms of political and the administrative system that the human ingenuity has so far formulated to ensure that the rules made for the people end up being positive and useful for their own benefit and betterment. But, in a democracy, the existence and thereby the survival of political parties is indispensable - be it in the form of multi-party system like India and that of France or in the form of a bi-party system like that of Great Britain and the United States of America. Nonetheless political parties have extra-constitutional existence, they leapt up and emerged as a private accretion of personagesand individuals but as thetime went by, they have now become institutions of the stateor agencies of the government through which self-determining sovereign power is exercised by the people.

Quoting Nigel Nicholson herein, "The party systemreduces multiple points of view to two or three, and makes opinion inside and outside Parliament more manageable."  A political party fuses minor alterations and differences to the point where they can be disregarded, and gives supervisionand formulates guidelines on major policy and procedural issues in such a way that guidance is usually indistinguishable from the decision itself. A party makes and promotes vague aspirations to be articulate, coherent, effective and also communicative. In this sense, its function is considered to be so valuable, so exceptional and irreplaceable, that it is almost impossible to perceive anydemocratic society without it."

Nevertheless, the rule of the mainstream majority is the primarycomponent of democracy and every so often it turn out to betough for the political parties to reach, the numbers and the same results into political bargaining or horse-trading and in the same sense political defection has grown synonymous to party democracy in almost all the major democratic systems of the world.

However, in the developed nations, the ideologies of ethics, morality, culture and philosophy have been so cavernousand deep rooted in the awareness of both the voters and over and above their elected representatives. The practice of constitutionalism has thus made the coordination of governance so picture-perfect that contemplations like the covetousness for power, greed for money and obsession for the public office – all these find little place in the cognizance of the political representatives in these countries. Therefore, the need for anunambiguous and specific law to limit defection has not arisen in the developed democracies as it has become indispensable in India and often gets to the feet of the politicians and even the citizens of the nation in one way or the other. But then again, it can't be said that nothingness of the precise Anti-Defection Laws in other democracies of the world, excluding those like Sri Lanka and Pakistan etc. which have got their own defection lawsprecedingthat of India do not by themselves stand as a guarantee or an assurance that there have been no defections of members of the political parties in those countries.

If one might discuss about the system of anti-defection in the countries around the world, there are relative and relevant laws to check upon the same. The most commonly used provision is the Provision for Recall. It is a conjoint acquaintance that in contemporary parliamentary democracies, a member, just the once elected has zero accountability and responsibility to his constituents and he endures the same thereby continuing to sit in parliament till the arrival of the next elections and then he or she  goes to the electorates asking for the votes.

Then, there are provisions of placing curbs over the splinter parties in many nations. There are patternsand precedents in the Constitution of other nations of comestiblesand provisions made against the bourgeoning of parties and also against uncommitted candidates. At onceit must be said conversely, that these are not countries where the pure majority system in elections applies as in the case of the United Kingdom, France or Turkey, but in the countries where there is moreovera "one party rule" like the former USSR, Yugoslavia or the present Russia or a miscellaneous system as in previous West Germany where partial seats are occupied in the single-member constituencies and the  rest are disseminated in the form of supplementary seats bestowing to the voting system of the parties or the list system of comparativedemonstration as for instance, in Austria, Denmark, Greece and Italy.

Another Provision of Resignation is also relevant in this regard. In Nigeria, the political parties have formulated the arrangement of procuring undated letters of resignation from the candidates, approvingand authorising the leader to place them in the hands of the Speaker in case the Member of Parliament crosses the floor. But, in India, Under Article-103(3)(b) resignation becomes effective only when it is conveyed or delivered by the member himself or transmitted through duly authorised agent to the Chairman or the Speaker.

In Thankamma Vs. Speaker[1],the hon'ble High Court of Travancore hadverbatim stated that "the resignation under this provision must be a voluntary, act of the Member and the Civil Court has jurisdiction to enquire whether the letter of resignation was void on the ground that it was forged or obtained by force or fraud and direct the Speaker to allow the Member to take his seat upon declaration that he has not lost his seat by the alleged resignation. On the same ground, the Court can also declare that the advance resignation has become void by virtue of its withdrawal and revocation of power granted by him to the Leader."

As one gradually moves forward, there are certain factors that affect major instances of defection in the countries around the world. If one may talk about the United States, The position of a Legislator in the United States is up to some extent peculiar. While the legislator mightstick broadly to the viewpoint of the party on whose ticket he is nominated and elected, on specific applications and legislative proceduresapproaching before him/her, he/she is more or lessfree from inflexible party whips. It is therefore true to say and it has been said on many occasions that each congressman or a Senator in the U.S. is a legal commandment unto himself. Party lines get distorted over every major parliamentary action and party associations are no controller to his decision or action as replicated in his voting.

Talking about France, when the Constitution of the Fourth Republic was drafted, it seemed to conform to the profound historical traditions of the nation, and in effect represented a compromise among the principal political forces in France. The rapporteur of the Constitution, Paul Caste - Floret (MEP), summed up the debate by declaring before the Constituent Assembly that the Presidential regime might lead to dictatorship, while the Assembly administration would attend and serve revolutionary commitments. The only solution was a sense of balance between the Legislature and the executive.

Concluding, it can be said that the anti-defection laws in India are much liberal and easy going as opposed to the systems prevailing in the developed nations which often creates issues and chaotic situations in the political administration of the Country. The Nations like that of United States of America and United Kingdom etc. are on a different pathway as to the contemplation of the defection laws in this regard.

[1] 1952, Travancore - Cochin 161

 

Tags :
Shreya Saxena 
on 03 April 2020
Published in Others
Views : 325
Other Articles by - Shreya Saxena
Report Abuse









×

  LAWyersclubindia Menu

CrPC MASTERCLASS     |    x