Anti-defection laws find their origins in the late 1960s when an MP from Haryana, Gaya Lal changed his party thrice in a fortnight. This entire episode centred around the changing of political affiliations gave birth to a new infamous term “Aya Ram, Gaya Ram.” This led to the demand for legislation to stop this undemocratic act which was finally quenched with the addition of the Schedule X in the Constitution through the 52nd Amendment in 1985 by the Rajiv Gandhi-led government. The main aim of the legislation was to check the immoral and unethical change of political affiliations after getting elected on a certain party ticket. However, this was not the first time such a law was introduced in the Indian political sphere, there have been at least two attempts before the 52nd Amendment Act. In the 1970s, there were a large number of incessant floor crossings by legislators which caused ruckus and chaos and led to the formation of a Commission. The commission was led by the then Home Minister YB Chavan[1] even after opposition from the Lok Sabha. On the basis of this commission, the 32nd Amendment Act was introduced to keep a check on defections. But the bill lapsed when the Lok Sabha was dissolved. Later the 48th Amendment Act was introduced which met the same fate[2]. Hence, India got an Anti-defection Law after a lot of misses. This article seeks to analyse how far has it brought about the intended change.
Table of Contents
The Failure of Defection Laws
If we see the picture today, it is everything but encouraging. Defections have been incessant in the State Legislatures. These defections have been in return of material benefits and ministerial positions. The party that benefits from it, most of the time, is able to form a government in the State with the help of defected legislators who mostly get appointed as members of the cabinet. Recently, we witnessed the dissolution of the Legislature of Puducherry due to defections. This is not an isolated case however. In March last year, the Kamal Nath led Congress government lasted a year before failing the floor test because 22 MLAs defected from the Congress party and joined the Bharatiya Janata Party. This led to the formation of BJP government in the state. The same has happened in Karnataka, Goa, and even some of the north eastern states in India.
Even after an Anti-Defection law, we witness elected legislators switching to other parties. This is a betrayal to the voters who vote for a candidate of a certain party but the candidate later switches the party. The elected candidates are bound by the manifesto and the policy and programme of the party during their tenure. If in the midst of the tenure, they change their views and dissociate from the party, they owe it both to the party and electorate to resign their seats and contest elections afresh. Not to do so is to betray and deprive both the party and the electorate of a representative of their choice. That is against the grain of democracy[3].
Reasons behind Failure
As mentioned above, the Schedule X has failed to prevent the defections. There are many reasons for the failure of this law. If we delve into the details of Schedule X, we find that it punishes the legislator on an individual level and not the political party which has lured the legislator for the defection. Political parties who are at the heart of our politics are not accountable if we go by the provisions of the law[4]. They benefit from defections and are often accused of enticing MLAs of rival parties to switch loyalties. Further, the legislators have found out ways of escaping the anti-defection law. For example, the punishment for a legislator who defects is disqualification from the house and he/she would be ineligible to hold ministerial position for six months. The legislators have started resigning from the house instead of defecting. This means that they could be re-elected in the by-polls and then conveniently hold the ministerial position that the enticing political party assured them of. This power to resign from the house is guaranteed to every legislator under Section 190 (3) (b) of the Schedule X.
Further, there is a provision which states about merger of political parties. Here, if two-thirds of the elected legislators of a certain political party move to another political party, it will not be considered a defection and the defecting legislators will not be punished or disqualified from the house. This provision has become a problem. Now, the enticing political party tries to get two-thirds of legislators of the other party to their camp. This has resulted in a problem called mass defections[5] which further led to the destabilisation of the governments. The recent example of such a case was witnessed in Rajasthan where more than two-third legislators of Bahujan Samajwadi Party joined the Congress. However, it is true that it is hard for the parties to get two-thirds of legislators to their side but in states where the strength of the legislatures is small, it is not a difficult task. Schedule X was added to the Constitution to enhance the stability of the governments. But with the coming of an era of mass defections, it has failed to improve the stability of the elected governments.
A new development has been sought out especially by the Bharatiya Janata Party. They take help of the chartered planes and resorts. While the floor test is being conducted, the members of the house are taken from a chartered plane to a resort. More often than not they are taken to a state which is ruled by them so that the defecting legislators not only enjoy the five-star hotels but also the police protection. This gives them an opportunity to miss the voting which leads to the toppling of the government. This has happened in states like Uttarakhand where the Congress legislators were accompanied by leaders of the BJP and they were taken away in a chartered flight to Delhi. This led to the imposition of the President’s Rule in the state, which was later set aside. In the meantime, the Speaker of the house had disqualified the legislators who did not show up during the floor test. Harish Rawat was reinstated to the office as the chief minister of the state. Similarly, defecting legislators in Karnataka were flown to Maharashtra (then ruled by the BJP; in July 2019) in a chartered plane, and taken to a resort. The coalition government consisting of the Congress and the Janata Dal (Secular) floundered and lost majority. The resignations become a tool to reduce the strength of the house and then topple governments[6]. The same was witnessed in Puducherry recently.
https://legalreadings.com/theories-of-punishment-and-their-justification/
The other important provision that has been a cause of concern in the anti-defection law is the role of speaker of the house. The Speaker has been made the sole arbiter on the case of defections or resignations. It is the Speaker of the house that will decide if the legislator has defected, and the same is the case for resignation. This is because the Speaker is considered to be impartial. But with defections taking place, the position of the Speaker has been highly politicised[7] and corrupted. The Speaker acts on the wishes of the ruling political party in the House because, more often than not, he is one of them. Recently, during the political crisis in Rajasthan, where the Rajasthan Congress government was divided in two camps led by Sachin Pilot and Ashok Gehlot respectively, the Speaker of the House, C P Joshi acted on the dictates of the Chief Minister Ashok Gehlot. The Speaker of the House tries to save the government by misusing the powers that are entrusted to him by the 10th Schedule. Although it is true that the decision of the Speaker is within the ambit of judicial review.
In the Kihoto Hollohan case[8], the Supreme Court dealt chiefly on the issue of insertion of Schedule X. The issue was whether it violated the powers and privileges of the legislative houses and its members guaranteed under Article 105 of the Constitution of India, and whether barring jurisdiction of the high courts and the Supreme Court for holding disqualification proceedings violated the principle of judicial review, which is part of the basic structure of the Constitution that cannot be done away with. The Apex court, while reiterating that the power of judicial review cannot be taken away through an amendment had also laid down the position on when the decisions of the speaker can be challenged, and to what extent the courts can review such decisions. But in an unprecedented order, recently the Supreme Court took a suo moto cognisance when the Speaker failed to take a decision. In the Manipur State Assembly, the disqualification of Thounaojam Shyamkumar[9] was pending for a very long time. Shyamkumar had joined the Bharatiya Janata Party shortly after being voted to power on a Congress ticket during the 2017 Assembly polls. Witnessing that no decision was taken by the Speaker on the defection, the Supreme Court took suo moto cognisance and directed Shyamkumar to not enter the State Legislature until the Speaker takes a decision. Further, the court added that it was needless to say that he will not be allowed to hold any ministerial berth in the government. The Court lastly said that the Speaker has to take the decision in a reasonable time. This is the first time that the court has given such an order in the case of defection.
But the problem with the intervention of the courts is that it takes time[10]. For example, in the case of Sharad Yadav, the Rajya Sabha chairman had decided his disqualification in three months in 2017, and the case is still pending before the Delhi High Court. And most of the time, the defection cases are forgotten after the political crisis is averted and the camps have reconciled. Last month, no one appeared on behalf of the dissident Rajasthan Congress MLAs, that is the Sachin Pilot camp, who had approached the high court seeking protection from the anti-defection law.
Another problem with the anti-defection laws in India is that it makes the legislators accountable to the political parties and not their constituencies[11]. For example, if we look at the recent impeachment of 45th US President, Donald Trump, seven legislators of the Republican party in the Senate voted for his impeachment[12]. The house could not take any action against the legislators and even the party did not take any action though it could have. Another example is of the United Kingdom where recently 55 MPs of the Conservative Party voted against its own party’s proposal of a stricter lockdown. This gives the legislators freedom of speech and expression. In India context, such a vote, that is different from the stand of the party, would have led to disqualification. Further, due to anti-defection laws, the legislators make no effort to analyse the policy instruments or other bills that are introduced in the house. They merely become votes for their party. This is not in favour of the constituency from which the legislators get elected. This high accountability towards the political party is problematic in another sense that it is very broad. It also covers the Rajya Sabha MPs who have no authority to vote out the government[13]. This limits the freedom of the legislators to critically analyse the policies and bills presented before them. The analysis and the discussions that take place are aligned with the stand of the party and are not their conscious one.
Conclusion
If the purpose of the law is to increase the accountability of the legislators towards the electorate, some major reforms are needed in the anti-defection laws. There should be limits to the spending of a political party which is absent in the current set-up. The limits on the spending can put a stop on the unethical horse trading that takes place. Further, anti-defection laws should be scrutinised from a sense that they are accountable for their actions not only to their respective political party but also to their electorate. Reforms must be made to accommodate the freedom of speech of the legislators that can be used to better analyse the bill/policy instrument.
REFERENCES
[1] Chakhsu Roy, “Explained: The Limits of Anti-Defection”, The Indian Express, July 25, 2019.
[2] Anti-Defection Laws in India: Its flaws and its falls, available at: https://www.barandbench.com/columns/anti-defection-laws-in-india-its-flaws-and-its-falls (last visited 20 March 2021).
[3] P B Sawant, “Only by The People”, The Indian Express, Aug. 13, 2020.
[4] Rahul Kaushik, “An Overview of The Tenth Schedule”, The Economic Times, Oct. 27, 2020.
[5] With mass defection, Cong loses govt in Arunachal, available at: https://www.thehindubusinessline.com/news/national/with-mass-defection-cong-loses-govt-in-arunachal/article9115838.ece (last visited 25 March 2021).
[6] Mass Resignations Indicate External Influence, Speaker Should Reject Them, Say Experts, available at: https://thewire.in/politics/mass-resignations-mlas (last visited 24 March 2021).
[7] Feroze Varun Gandhi, “Political and Partisan”, The Hindu, Oct 18, 2017.
[8] 1992 SCC Supl. (2) 651.
[9] SC Restrains Manipur BJP Minister From Entering Legislative Assembly Till Further Orders, available at: https://www.livelaw.in/top-stories/sc-restrains-manipur-bjp-minister-from-entering-assembly-154032?infinitescroll=1 (last visited 26 March 2021).
[10] The Anti-Defection Law Continues to Damage Indian Democracy, available at: https://www.prsindia.org/media/articles-by-prs-team/anti-defection-law-continues-damage-indian-democracy (last visited 23 March 2021).
[11] The Absurdity of The Anti-Defection Law, available at: https://www.prsindia.org/media/articles-by-prs-team/absurdity-anti-defection-law (last visited 25 March 2021).
[12] Id.
[13] The Anti-Defection Law Continues to Damage Indian Democracy, available at: https://www.prsindia.org/media/articles-by-prs-team/anti-defection-law-continues-damage-indian-democracy (last visited 23 March 2021).
BY PRIYANSHI | RMLNLU, LUCKNOW