The Anti-Defection Law – Steering to Subvert People’s Mandate

The Constitution of India empowers the citizens to confer the authority in the hands of elected representatives to make laws and hence it is the moral and ethical responsibility of the elected leader to fulfill the demands of the electorate and abide by democratic principles. The public representative has a fundamental role in our political system and is responsible for discharging his duty through public institutions. The public institutions and offices are often been treated as a private asset by elected representative. Considering a public office for personal politics that leads to political defections is unfortunate for our constitutional democracy.

The word ‘defection’ means conscious abandonment of allegiance or duty and is often been used in politics. A ‘defector’ is a person who gives up his association with a party and moves to another one in exchange for allegiance which is illegitimate for the first party. Political defection is a situation in which a member of a party gives up his membership of the original party and moves to another party due to a party feud or in exchange of some benefit. Political defections have been a part of India’s electoral politics and are exercised by public representatives for their private gains and party politics leading to betrayal of people’s mandate and unstable governments both at states and centre.

Obsession with power, exploiting public offices for monetary gains and political vendetta are some of the reasons of political defection. Often MPs and MLAs are seen changing sides soon after elections. During 1960s and 70s the situation became grave with frequent cases of horse-trading, switching parties coming from several states. In 1967, Gaya Lal became the Member of Legislative Assembly from Pataudi Vidhan Sabha, Haryana as an independent candidate. Thereafter, he joined Indian National Congress (INC), later on defecting to United Front and again counter-defecting to INC, changing party thrice within fifteen days. After 1967 he contested under several political parties like Akhil Bhartiya Arya Sabha in 1972, Bhartiya Lok Dal in 1974 and won again as a Janata Party candidate in 1977. His frequent floor-crossing led to the use of the term ‘Aya Ram Gaya Ram’ frequently being used for political defections since then. His son Udai Bhan also used similar practices of switching parties and faced charges under Anti-Defection Law in 2004.

Similar practices of party-switching immediately after and before elections became a norm in earlier decades which resulted in making a mockery of public mandate. Politicians could easily switch sides supporting the better bidder. Who give politicians the right to sell the votes of the people to the higher bidder? Is it not manipulation of people’s vote and trust by their representative to gain power? The defection problem is a malaise for any liberal democracy and safeguarding it is a basic duty of the authorities and citizens. The Anti-Defection Law came as a remedial measure to deter political defection but how far is it successful in stopping politicians in changing teams and stabilize democratically elected government?

The Anti-Defection Law came as 52^nd Constitutional Amendment Act in 1985 adding 10^th Schedule to the Constitution of India. The provisions of the law are as follows:

A member of the house could be disqualified:

1. If a member of a house belonging to a political party voluntarily gives up the membership of his political party.
2. Votes, or does not vote in the legislature, contrary to the directions of his political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
3. If an independent candidate joins a political party after the election.
4. If a nominated member joins a party six months after he becomes a member of the legislature.

Power to Disqualify:

1. The Chairman or the Speaker of the House takes the decision to disqualify a member.
2. If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.

Exception in case of Merger:

1. A person shall not be disqualified if his original political party merges with another, and he and other members of the old political party become members of the new political party or he and other members do not accept the merger and opt to function as a separate group.
2. This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.

The above provisions stand unaltered after the 2003 amendment. The law proved to be an inhibitor for party-hopping politicians. Since its inception it has played a part in maintaining stable governments even if there is no clear majority of a particular party in elections. Multiple parties have formed alliance to form government at both centre and state levels. A member could not be influenced to change sides curbing the dishonest intentions of politicians. But before taking a holistic view we have to analyse that how far the law has been effective in hindering the politicians for defection and how successful the law has been in disqualification of defaulters.

The numbers in the above data might not be on the higher side compared to instances of defections, toppling government in states and centre or anti-party activities by politicians. The less number of disqualifications of the members could be seen as a result of how members of the houses and parties exploit certain loopholes of the law to fulfill their political desire and backing of presiding officer due to his or her political affiliations. We can trace several example of this in recent past. Last year 10 of 15 MLAs of Congress (2/3 of their strength in Assembly) merged with BJP increasing their strength to 27. The Karnataka Political Crisis of last year in which 16 MLAs supporting Congress-JDS coalition resigned after 14 months of their rule paved the way for BJP forming the government again. In a recent political turmoil of Madhya Pradesh the rule of CM Kamal Nath plunged into crisis with the resignation of 22 rebel MLAs after the movement of Jyotiraditya Scindia into BJP. BJP formed the government in Madhya Pradesh with its current strength of 107 MLAs surpassing majority mark of 104 needed after resignation of the MLAs.

All of these instances compel us to think what induces the elected members to give-up their posts and disobey people’s mandate? The Anti-Defection Law doesn’t disqualify these members because they have voluntarily resigned from their office not from the political party, no one can anticipate whether they would switch party after resignation or not which in case of Madhya Pradesh would not deter them according to law if desired to do so. The two-third merger rule has been exploited in case of Goa. In several of such instances BJP was successful in reducing the majority mark to form government in states and itself forming governments.

The Anti-Defection Law in current form is under the umbrella of doubts. The speaker of the house is the presiding officer to whom resignations are tendered and decide about disqualification of the member. The office of the speaker is questioned because he is chosen from a political party and sometimes not unbiased. No judicial scrutiny of disqualification until the judgement of speaker could lead to exploitation of speaker’s office by the speaker. According to Dinesh Goswami Committee on Electoral Reforms 1990, the issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission. Even in country like Bangladesh, Article 70 of the Bangladesh Constitution says a member shall vacate his seat if he resigns from or votes against the directions given by his party. The dispute is referred by the Speaker to the Election Commission. There is no time-limit for the speaker to give the verdict on disqualification after defection or resignation of a member which leads to further delay in judgement. There are instances in Telangana and Andhra Pradesh where opposition members have gradually joined ruling party in small groups until the 2/3^rd majority of the party MLAs joined the regime with pending action by the presiding officer.  The Law Commission 170^th Report 1999, states that ‘the provisions which exempt splits and mergers from disqualification to be deleted’, which in case of Goa seems relevant.

A member stands disqualified if he or she disobeys party’s whip, what if a party introduces an unconstitutional act? How does one stop himself of questioning such laws in a democracy? The law protects the party in such cases and makes an elected representative vulnerable in the hands of party bosses. The members have to follow both ethical and unethical orders of the party in order to safeguard his office. This provision hinders the representative to work as per his conscience and degrades values of legislature. The most fundamental issue here is to protect the trust established between people and their representative and instances toppling governments would surely reduce the democratic values. Measures such as preventing MLAs and MPS to contest any state and parliamentary elections for ten years who joins another party after resignation would deter them. The assets of family members of defecting politicians should be scrutinized. Governor and the President of India should make the final verdict on the advice of Election Commission regarding disqualification of MLAs and MPs respectively within a time-frame. A constant check by Election Commission on the accounts of political parties may help in keeping an eye on black money involvement. Rather than protecting political parties the Anti-Defection Law should be moulded to safeguard legislature and democracy. The objective of the law should not be distorted by lawmakers themselves and subvert people’s mandate. In a constitutional and liberal democracy a law should protect primarily the interest of its citizens.

Aman Sharma is a student pursuing Public Administration from Jamia Millia Islamia.