Introduction
The exodus of the elected representatives of people from the ruling party thereby letting down the popular mandate is not an unconventional political sight. In fact, nearly 438 defections occurred within the period between March 1967 and February 1968.
The sanction on defections was not in place since the beginning of India’s democratic journey. It was only in the year 1985 after, when Prime Minister Rajiv Gandhi came to power he tried to prevent precisely these kinds of occurrences from happening, by bringing in the Anti-Defection Law in 1985 which disqualifies the members of parliament and state legislature on the ground of defection. For this purpose, it lead to amendment in Article 101, 102, 190 and 191, followed by the addition of the tenth schedule to the constitution, which is often referred to as the anti-defection law. Later, the 91st amendment act of 2003 made one change in the provision of the tenth schedule. It omitted an exception provision i.e., disqualification on the ground of defection not to apply in case of split.
Time and again the phrase “Aya Ram Gaya Ram” and the stipulations of the Anti-Defection Law have been evoked in discussions, If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. More recently the political turmoil in Karnataka followed by Madhya Pradesh where MLAs have resigned in an aid to defenestrate the stable government has brought to light a new method of destabilizing the government.
Interestingly, the new modus operandi avoids ensuing consequences especially for parties that have less number of candidates e.g. 4/6 members of TDP joined BJP in Rajya Sabha. In this light, more precisely in the absence of light on this subject, the abyss in the law flings large a question, whether the law has failed to achieve its purpose and whether there’s a dire need to reconsider it? Even a practicing defectioner would say yes after losing the majority mandate.
Backdrop Of The Act
It must be noted that during the period of 1967-71, out of the overall 4000 seats, instances of defection transpired on 2000 seats.
When Anti-defection law was passed, it provided a stability to the body politic and certainly made defections little difficult but not impossible. Essentially, the provisions of Tenth Schedule give recognition to the role of political parties in the political process inter alia other offences and other things. The purpose of the Tenth Schedule is to prevent the breach of faith of the electorate. When a constituency returns a candidate, it does so on considerations based on the ideologies of the political party he represents and it is only logical that where the candidate, after being elected, leaves that party or acts contrary to its policies, he should be recalled for betrayal of the faith of the electorate. It is common in Modern Parliamentary democracies that a member once elected has no responsibility to his constituency and he continues to sit in Parliament till the next election arrives and then he goes to the electorate asking for their votes. Sad truth is that every member defects in good faith and statistically rarely a politician has been convicted of corruption, major criminal actions and defections in the past 50 years.
Intrinsic Flaws
The fact that defections are still rampant bears testimony to the contention that the Anti-Defection Law has been found to be inefficient. The immorality of defections, counter-defections and the act of usurping the mandate has destabilized the governments a lot of times, the law after 2003 amendment did not cease defections but with the constitutional loophole, by reducing majority, it gave an impetus to form a new government. This indirect way circumvents the legitimate elections thereby making electoral system vulnerable.
The 2/3 requisite mark for merger and split is like a constitutional safety valve favoring defection for small parties and in smaller states. Firstly, it gives an upper hand to the parties with large number of seats to make merges with small parties, having less number of seats. Secondly, this is particularly puzzling in context of small states as the case of Goa, where from the total of 15 elected members of the Congress party, 10 defected to BJP without evoking disqualification because of the 2/3rd threshold.
Another ambiguous means of disqualification is when a member does not vote in accordance with the political party, not condoned within 15 days, will be disqualified. This provision is like a two-way wedge: firstly, if this provision is removed then votes can be swayed by corruption. Secondly, it puts the members into a bracket of obedience restricting the legislator’s freedom to oppose the wrong acts of the party.This method exemplified when few members of the BJP were disqualified when they didn’t vote for a specific person for the post of the Speaker, thereby flouting the whip. Meaning thereby, his conviction is ever threatened by his freedom of speech. In a case[17] the Supreme Court reiterated that even signing a letter to the governor supporting the opposite party was equivalent to defection.
The Constitution did not recognize political party since inception because the framers of our constitution did not foresee giving rein of legislators to the parties. Absurdly, the act has given immense powers in the hands of party leaders causing proliferation of despotic methods of functioning, thereby besmirching the very idea of dialogue and discourse. While a certain amount of party coherence is important, it would be against the democratic notions of discussion if party members are threatened to adhere to the whip. The broader question here is where actually does the allegiance of a legislator lie more; towards the party or towards the constituency who has chosen him to represent them?
At this point, a reference must be made to what happened in Manipur in 2017 where Thounaojam S. Singh defected alongwith 7 more MLAs and no action ensued but after Supreme Courts intervention he was disqualified. The, earlier, inaction of the speaker in this case speaks bounty of the partiality that even people, who are supposed to be neutral, are afflicted with.
The Apex court pointed out, “It is time that Parliament has to rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto”. Mr. K.P. Unnikrishnan, a member of Congress party in the Lok Sabha, had said that “by making the speaker the sole repository of all the judgement, you are allowing them to play havoc.” Expecting the speaker to be away from bias is too utopic. While everyone must agree that righteousness and integrity are quintessential virtues that a lawmaker must possess, it seems that the predilection for money and power has been victorious over the ethics.
Keeping a check on Unfaithful practices:
Maintaining the purity of the electoral process however, requires a multi-pronged approach, which includes removing the influence of money and criminal elements in politics, expediting the disposal of election petitions and criminal prosecutions, introducing internal democracy and financial transparency in the functioning of the political parties, strengthening the Election Commission of India (hereinafter “ECI”), and regulating opinion polls and paid news.
It is true that the election process is quite often turned into a farce when a large number of independent candidates choose to contest. Often some of them are put up by one of the main contenders to split the votes of his opponent. The reforms suggested by the Law Commission to improve the electoral system are unlikely to achieve their objectives. But that does not mean that nothing can be done.
There is also another reason why the leaders of the political parties are indifferent, perhaps even hostile to any proposals for reforming the current electoral system. Most of them have come to their present positions by actively making use of the system as obtains now and have a vested interest in its perpetuation. They are not likely to have any enthusiasm for reforming it. Going by the earlier record, it is doubtful if even political and social scientists in universities and the research institutes will take advantage of the opportunity to consider in depth the issues involved.
To ameliorate discipline and loyalty, the construct of ‘split’ and ‘merger’ should be done away with so that the member once elected adheres till the dissolution of the house, this was the sole objective of the anti-defection law. The Dinesh Goswami Committee on Electoral Reforms suggested that a member should be disqualified when he refrains from voting or votes against the party to which he belongs when such a vote impacts the existence of a government in itself i.e., during the motion of no confidence or motion of vote of confidence. Along with it, there is an urgent need of more room for intra party dissent on key issues.
Comparative analysis
Many other countries have anti defection law like Bangladesh, Kenya, South Africa, etc. but Corruption is much more likely to flourish where democratic foundations are weak and, as we have seen in many countries, where undemocratic and populist politicians can use it to their advantage. Sadly this holds true for India. Not directly but indirectly the horse trading is carried out. In America, Congressmen have often voted against their own party throughout history. Senator John McCain differed with President Trump and his fellow Republicans as much as 17 percent of the time during votes in the Senate The flip side of the argument is that some believe that removing anti-defection law would field candidates with stronger credibility at the grassroots, rather than those susceptible to monies. The notion of what is defection should be amended a bit to provide for purposeful discussions and to take away the immense powers that has been given in the hands of party high commands.
Conclusion
While discontent with the functioning or policies of the party can be a valid reason behind legislator’s resignation, this doesn’t seem to be the case as far as the recent instances of political turmoil are concerned. It also becomes relevant to consider why no ruler – politician or senior civil servant – has been convicted of corruption or of any other crime in the past 50 years. The commission needs to ponder whether this is because (i) our politicians are all angels or (ii) whether the laws on the statute book are inadequate and yet another law is needed or (iii) whether there is something drastically wrong with our law enforcement agencies, including courts.
This article is written by Deepika Kacholia and Shantanu Anand of RMLNLU, Lucknow.
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