Passage Based Questions: Legal Aptitude - 16 | Passage Based Questions for CLAT Preparation PDF Download

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Two key arguments have been used to justify an anti-defection law. One justification offered for the law is that it intends to combat political defections fuelled by political corruption and bribery. In the years preceding the passage of the anti-defection law, it was noted that legislators were often given the lure of executive office, or promised personal benefits, in order to encourage them to defect from their party. A Committee formed under the chairmanship of the then Home Minister YB Chavan (1969) to examine the need for an anti-defection law, noted that out of 210 defecting legislators of various states in India, 116 were given ministerial positions in the new government which they helped from. It recommended that for defections that were fuelled by monetary gains or by the lure for political office, the defectors should not only be barred from office, but should also be barred from standing in future elections for a prescribed time period.
Others have argued that defections flout the voters’ mandate. This argument is based on recognition of the role of political parties in the parliamentary system. The argument is that most candidates are elected on the basis of the party which gives them a ticket. The party also arranges for election expenses of the candidate and the candidate fights the election based on the manifesto of the party. Therefore, when a member defects from the party, he betrays the fundamental trust based on which people elected him to power.
The anti-defection law provides for disqualification of a legislator if he votes contrary to the party whip. As a result, members are compelled to obey the party whip, in order to avoid losing their seat in the House. The law raises questions on the role of a legislator. One, it restrains legislators from expressing their conscience in the House. Two, it breaks the link of accountability between the voter and the elected representative. Three, it disturbs the balance of power between the executive and the legislature, by constraining the ability of a member to hold the government accountable. Four, it leads to major decisions in the House being taken by a few party leaders and empowers party leaders to compel legislators to vote as per their instructions.
While the anti-defection law was introduced to curb political defections and ensure stability of government, it restrains legislators from effectively carrying out their functions. In a parliamentary system, legislators are expected to exercise their independent judgement while determining their position on an issue. The choice of the member may be based on a combination of public interest, constituency interests, and party affiliations. This fundamental freedom of choice could be undermined if the member is mandated to vote along the party line on every Bill or motion. Even if the member has an opinion that differs from his party leadership, he does not have the freedom to vote as per his choice.

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Parliament has the power to amend the Constitution. To check against the misuse of this power, a higher threshold of support is required to amend the Constitution as compared to a simple law. A Constitution Amendment Bill needs the support of more than half the members in each House of Parliament, and at least two-thirds of the members present and voting. Additionally, ratification by more than half the states is required for amendments that affect powers of the states and the Judiciary. A recent example of this is the Constitution (101st Amendment) Act, 2016 that enabled introduction of the Goods and Service Tax.
The Supreme Court has held that Parliament’s power to amend the Constitution is limited, that is, Parliament cannot amend the ‘basic structure’ of the Constitution.  Note that this ‘basic structure’ principle is not expressly mentioned in the Constitution. The Judiciary has used its power of interpretation to identify fundamental aspects of the Constitution that cannot amended. These include ‘supremacy of the Constitution’, ‘separation of powers’, ‘judicial review’ and ‘judicial independence’ (this is an open list to which the Judiciary may add new aspects).
It may be argued that when the Constitution does not expressly limit the power of Parliament to amend it, such limitations may not be imposed through judicial interpretation. On the other hand, it may be argued that this interpretation is a protection against excessive use by a government with a large majority; for example, this limitation prevents a government holding substantial majority from extending the term of Parliament indefinitely.