Anti-Defection Law: A Pious Superfluity
Image Credits: wikipedia.org
It was during the post-1967 era that the expression “Aaya Ram, Gaya Ram” came to be used recurrently in the political discourse to mock the frequent floor crossing by the legislators. Not just the stability of government but the rising problem of corruption was associated with the malaise of defection. Initially, defection was a major irritant mainly after the election to state legislative assemblies. Later it was reported in the case of members of Parliament also. To counter this menace, a constitutional amendment bill was proposed in 1973 that got lapsed on account of dissolution of the Lok sabha. A similar attempt was again defeated in 1978. It was only during the Rajeev Gandhi prime-ministership that the 52nd constitutional amendment act, 1985 was enacted that added the tenth schedule to the Indian constitution which exclusively deals with anti-defection. Political defection, however, is not unique to India and is witnessed in other advanced democracies like the US and UK as well. But what distinguishes India from other countries is the increased rate of floor-crossing often in the form that makes anti-defection law a mute observer. The paramount consideration behind the addition of the tenth schedule was to ensure the stability of the democratically elected government at the center as well as in states. However, the tenth-schedule has not lived up to the expectation. Rather our political leadership has always been intelligent enough in exploiting the loopholes present in the law. The way the elected government has been toppled in Karnataka (15 MLAs resigned in 2019), Madhya Pradesh (21 MLAs resigned in 2020), and more recently Puducherry (2021) defeats the entire purpose of the anti-defection law. No law in India can prevent an MP/MLA from resigning their post. Anti-defection law states that a legislator shall be disqualified from being a member of the house if he/she voluntarily gives up the membership of his political party on whose ticket he/she was elected. The elected representatives (belonging to the ruling party) do not defect now–rather they broker a quid pro quo deal with the opposition party to thwart the ruling party via tendering their resignation, thereby reducing the total strength of the house and thus automatically making the opposition party a majority wielder. All this is done to grab the ministerial post in the new government, even though under the garb of so-called personal discretion and on the pretext of having not been able to serve the people through their earlier party. This is exactly what had happened in Madhya Pradesh, Karnataka, and poll-bound Puducherry. One of the noticeable patterns in both Karnataka and Madhya Pradesh was that the total number of resignations was effectuated in such a way that the ruling party (Congress) in the state lost its majority and the opposition party (BJP) became majority wielder on account of reduced strength of the house. The rebel MLAs who resigned in Karnataka and Madhya Pradesh contested by-election on the BJP ticket. Why do members take risks even if they could be defeated in the by-election? They could be defeated, but an analysis of previous by-election results shows that the majority of them who tendered their resignation and contested the by-election won the election. 12 out of 15 MLAs in Karnataka won the by-election and 10 out of them were accommodated in the council of ministers. Likewise, 19 out of 28 seats were won by BJP in the by-election of Madhya Pradesh after Jyotiraditya Scindia and his team tendered their resignation. It is not easy to defeat such rebel MLAs even if their image is tarnished by such resignation, as the rival candidate had not anticipated resignation and consequently he did not remain prepared fully to effectively challenge the rebel MLAs who often enjoys the support of the ruling party at the center (currently BJP) on whose ticket they contest the by-elections. Further, even if they lose the by-election they could be made minister for six months at least as the resignation is not defection. This explains the resignation path over defection. If all these conditions fail to materialize then the resigning-candidate can be compensated for by material and other official benefits. All these things get their way because in India only defection is punished, not resignation. But what is happening in the current political scenario is that all the immoral and unethical practices that were sought to be penalized via defection law are being done by the virtue of resignation. This practice has become frequent during the last five years and this seems to be in continuance with other disturbing trends like the enactment of a bill through voice votes even if opposition demands division (farm laws and Karnataka's bill on cow-slaughter), coloring ordinary legislative bill as money bill or finance bill (electoral bond, retrospective validation of foreign political contribution) to bypass Rajya Sabha, or changing the meaning of constitutional expressions (the way special status of Jammu & Kashmir was revoked by changing the meaning of “constituent assembly” of Jammu & Kashmir).
Other Defects of Anti-Defection Law
One of the provisions of the Tenth Schedule states that a member shall be disqualified from being an MP/MLA if he/she votes or abstain from voting in the House contrary to any direction issued by his party’s whip without obtaining prior permission of the party and such an act has not been condoned by the party within 15 days. This provision has robbed the members of their discretion. The political freedom and the individual conscience of the legislators have been dwarfed against the dictatorship of the party. Since legislators do not have their personal voice, the quality of debate on the floor of the house has been negatively affected and the ruling party at the center or in states get the bill passed with limited and restricted discussions. Moreover, the whip provision is not only applicable to significant motions like no-confidence motion but even for trivial ordinary motions and resolutions. This provision has significantly weakened the separation of power doctrine as the whip directives make the legislator depend on the ‘mercy’ of the executive. The haplessness of anti-defection law has shown that it has created a democracy of political parties in India rather than a democracy of debate and discussion. Thus, the cardinal feature of parliamentary democracy- ensuring the responsibility of elected government- has been threatened, since not only the ruling party’s MPs/MLAs but also opposition’s MPs/MLAs have been bound by the whip that significantly throttles their freedom of speech and expression in the house.
Grey Areas in the Tenth Schedule
In Rajasthan last year, as many as 19 MLAs were issued a show-cause notice by the speaker on the ground of defection, this episode exposes grey areas in the law. The chief whip of the Rajasthan Congress party asked the speaker to disqualify Sachin Pilot and his rebel MLAs camp as they “deliberately absented” themselves from the meeting of the Congress legislative party disregarding the whip. But the dilemma is whether the whip applies inside the house or outside the house also. Further, in Manipur, as many as eight Congress MLAs switched their side in 2017 and joined BJP which was ruling in the state. The Congress party asked the speaker to disqualify the eight MLAs but he did not disqualify them for three years as there is no time frame given in the constitution under which the speaker has to take the decision. In one of the judgments in 2020, the honorable Supreme Court opined that the speaker could not keep such a disqualification petition pending for more than three months but even then the speaker of Manipur did not act. Ultimately the apex court had to take a decision and it removed one minister (a defected member) from the ministerial post and barred him from entering the legislative assembly. This episode shows the partisan role of the speaker when a member of the opposition party defects to the ruling party. Apart from the speaker, the governor also acts in partisan interest. When Jyotiraditya Scindia rebelled against the Kamal Nath government, the governor of Madhya Pradesh was keen enough in seeking the confidence vote of the then Congress government but when Ashok Gehlot asked Mr. Kalraj Mishra to convene the assembly so that he could prove his majority, the governor did not convene the assembly as he knew that BJP (73 seats) was not in a position of forming the government even if Sachin Pilot camp would have resigned. This is the testimony of the governor’s calculated stand during a political crisis in order to favor the ruling party at the center. Apart from the governor and speaker, the Supreme Court has also been the cause behind the exacerbation of the tenth schedule. In the Nebam Rebia case, it said that the speaker cannot act on a disqualification petition when a resolution for his own removal is pending in the house and the members against whom disqualification petition is being considered can cast vote on such resolution. Thus, inviting filing of removal petition against the speaker by the members whose disqualification is to be considered by the speaker.
Rajasthan Crisis Explained: Anti-Defection Law /Image Credits: rediff.com
Plugging the Loopholes
While there are several limitations apart from the role of governor and speaker, the question that requires urgent attention is how to plug the loopholes being exploited by our astute political leaders? Some common opinions in this regard are as follows. The role of the whip should be codified precisely. It should only be used for substantive matters like the no-confidence motion as this would give members some space to register their dissent within the party thereby removing the specter of resignation. Subhash C Kashyap says that speakers should be relieved of all duties assigned to them under anti-defection laws and this should be vested in the high court and the supreme court. Alternatively, some experts say that we can think of having an appropriate person being selected by all parties unanimously before each general election as presiding officer. It is suggested that a defected member or who has tendered their resignation should not be given ministerial or any public office for six months or even a year after re-election. Rajeev Dhawan (senior advocate) takes a radical stand and says that there should be no such motion called confidence motion after the formation of the government, only no-confidence motion should be allowed. No amendment in anti-defection laws would be meaningful, however, without a strong review of the functioning and working of the political party in India.
Arnav Anand Gupta (Guest Writer)
BA Honours Political Science, First Year, Hindu College
Email ID: email@example.com
Arnav likes to ponder upon the current developments in international- relations and try to keep a close tab on the recent events of geopolitical significance.