Anti-Defection Laws Described: From Drama To Dillemma
Mr Suvidutt Sundaram
Jul 25, 2020
“May we never confuse honest dissent with disloyal subversion.”
– Dwight D. Eisenhower
1. GRASS LOOKS GREENER ON THE OTHER SIDE
The phenomenon of floor-crossing and minority governments in the era of coalition is not atypical to India but has been witnessed all over the world. Political instability after the government formation is a challenge to any democratic set up. Delinquency of defection happens when lawmakers of a political party are often lured by the rival party with plum public posts or by throwing money at them. It begins with dissent and results in disloyalty. One of the major criticisms meted out against the anti-defection law has been that it barely differentiates between dissent (member speaking against its own party) and defection (member joining another party).
In the British parliament, Member of Parliament (s) who rebel lose party membership but not their seat in parliament. Strangely in America, Congressmen typically vote against their own party. For instance, Senator John McCain differed with President Trump and his colleague Republicans as much as 17 percent of the time during votes in the Senate. India, as a matter of fact, adopted Westminster model that works mainly on a two-party system or a limited number of parties.
Astonishingly, a dramatic example of defection was Gaya Lal, a Haryana politician who served in the state assembly in the 1960s. In 1967, Lal switched parties three times within the same day, shuttling between the Congress and the Janata party. The anti-defection law had botched twice to get through in the Parliament i.e. in 1973 and in 1979. To counter the menace of corruption-driven defections and ensure political stability, in 1985, shortly after Prime Minister Rajiv Gandhi came to power, he introduced the 52nd Constitutional (Amendment) Act, 1985 in the Parliament, and got it passed adding Tenth Schedule to the Constitution known as the Anti Defection Law. Ever since the passing of this legislation it has remained controversial.
2. RECENT EPISODE
Defection by lawmakers have become ubiquitous in Indian political landscape for the last few years from the legislative assemblies of Manipur to Madhya Pradesh and from Goa to Karnataka and now recently it was appeared in the Rajasthan assembly.
In Rajasthan, Ashok Gehlot government has moved disqualification petition against 19 of its Members of Legislative Assembly (MLAs) including the deputy Chief Minister Sachin Pilot. While all these MLAs are still a part of the Congress party since they have neither resigned from the party nor joined another party, it remains to be seen whether their disqualification based on the grounds of missing the Congress Legislature Party (CLP) meetings, conspiring to unseat the elected government in Rajasthan, antagonistic demeanour and remaining unreachable as listed by the Gehlot government, could be effected. The Congress party’s move to disqualify Sachin Pilot and 18 other dissident MLAs under the anti-defection provisions laid down in the constitution, was challenged before the Rajasthan High Court and the judgment of the same would be pronounced on 24thJuly, 2020.
3. DEFECTION, EXCEPTION AND INTERPRETATION
It is the Speaker of the House – in Parliament and the state assemblies – who can disqualify Members for defection. A person is disqualified as a member of the house belonging to a political party when he/ she: (a) voluntarily gives up membership of his or her original political party; (b) votes or abstains from voting in such house contrary to directions issued by his/ her political party, without obtaining prior permission from the party and such act of the member is not forgiven by the party within 15 days. In short, defection happens if a member switch parties or vote/ abstain on an issue against their party’s directions (also called the ‘party whip’).
The Tenth Schedule of the Constitution of India lists two exceptions where disqualification is not attracted even as the member defects to another party: (a) When the original political party of the member merges with another party. A merger can happen only when two-third members of the concerned party agree to it; (b) The member gets elected as the presiding officer (speaker/chairman) of the house and voluntarily gives up membership of his/ her political party to work independently and impartially or re-joins such party after he/ she ceases to hold such office.
The question over whether the disqualification of a member of a house is warranted, is referred to the presiding officer of the house and his/her decision is final. Earlier there was a provision that stated, “No court shall have jurisdiction in matters connected with the disqualification of a member of a House under this schedule,” entailing that there will be a bar on the member, against whom defection charges have been made, to move to a court. However, in Kihoto Hollohon vs. Zachillu [1992 Supp (2) SCC 651], the Supreme Court in a majority decision delivered by Mr. Venkatachaliah, J. applying the test of doctrine of severability, repealed paragraph 7 of the Tenth Schedule and declared it to be unconstitutional. It stated that the presiding officer of a house deciding on disqualification works as a tribunal, which is subjected to judicial review.
4. DOWNSIDES AND DESIDERATA
Essentially, the anti-defection law is to curtail defections, yet it shall not come in the way of democratic realignment of parties in the House by way of merger of two or more parties or a split in an existing party. The anti-defection law aims to sanitise public life, but it has not been able to avert defection in toto.
Several reasons are attributed for why many democracies have not adopted an anti-defection law. Present anti-defection law, in effect, attenuates the separation of powers between the Executive and the Legislature – and centralises power in the hands of the cabinet.
A conceivable suggestion is permitting members to vote against their party whip during important events such as no-confidence motions, and on all other matters, members ought to be given full independence to vote as they choose. If Members are able to vote on laws independently, they would act as an effectual check on the government and would be personally accountable to their constituents for their vote. Over time, this will lead parties to field candidates with firmer credibility at the grassroots, rather than those merely loyal to the party superiors.
Under the status quo, no law can reasonably impede a lawmaker from resigning. An amended anti-defection law can also counter the scourge of mass resignations from the House. Besides, amendment shall be done so as to forbid a resigning Member from being re-elected during the by-election that follows immediately after their resignation. If a Member resigns, they should only become eligible to contest in the following general election or state election; not the by-election that results from their resignation.
To conclude, defection laws have produced a democracy of digits and arithmetic, rather than a democracy of debate and deliberations. From drama to dilemma, we have come a long way taking the wrong road. Thus, change is long overdue.