By Khushi Sheoran
Abstract
There’s a popular phrase “Aaya Ram Gaya Ram” and let’s just say Nitish Kumar is the modern-day embodiment of it. Are there laws to stop elected politicians like him? Yes, an anti-defection law exists in our Constitution. Then why doesn’t it apply to Nitish Kumar and many other politicians like him? This is exactly what will be answered and analysed in this article. They say, “Every law has a loophole” and these very loopholes are helping such corrupt politicians. This article is going to delve right into these loopholes and recommend some possible solutions for the same.
History
During the 1960s and 1970s, defection saw its peak when Haryana MLA – Gaya Lal, switched his party thrice in one day. This extreme situation gave rise to the popular phrase “Aaya Ram, Gaya Ram”. This gave rise to the 52nd constitutional amendment which added the 10th Schedule in 1985. This in turn created a solid legislative framework to combat defection in India.
Tenth Schedule of the Indian Constitution
Clause 2 of the 10th Schedule gives the following grounds for disqualification on grounds of defection:
- Voluntary resignation i.e. when an MP or MLA voluntarily gives up his political party membership or if he votes or abstains contrary to his party’s stance.
- If the elected MP or MLA joins another political party. After being elected to the house, if an independent member joins a political party, it is void.
- Nominated members are only eligible to join a party within 6 months if they join beyond this, they are automatically disqualified.
- The designated authority to make decisions about disqualification is the Speaker or the Chairman of the House, and their choices are subject to judicial scrutiny.
Criticism
The anti-defection law has received an extensive amount of criticism along with several challenges despite its well-meaning goals. Firstly, it undermines representative democracy as it takes away independence and is a hindrance to the rights of the elected members. As mentioned above, the speaker is the adjudicating authority. This power has been in controversy because of the speaker’s biased behaviour in various incidents. Hence, there has been a significant demand to establish an independent body.
Thirdly, when the court is approached with a case relating to anti-defection, it calls for immediate action. However, this process is often delayed. This is one such situation where “Justice delayed is Justice denied”. There are also certain exceptions and loopholes which allow misuse of the law. For example – Clause 4 of the 10th schedule discusses circumstances under which the law permits mergers and splits, which can be taken advantage of to avoid disqualification. For example, a party cannot be disqualified if two-thirds of its members choose to combine with another party.
Notable Cases
The anti-defection law’s advantages and disadvantages have been brought to light by many well-known incidents. Legal difficulties did not lead to Nitish Kumar, the Chief Minister of Bihar, losing his position as a result of his party’s alliance swap. This is one noteworthy example because he is known for changing his party at the last moment and even in the current election voters were skeptical about the same. This episode served as a reminder of the need for stronger legal safeguards and more precise definitions to avoid legal abuse.
Let’s start with everyone’s favourite vacation spot – Goa. In the recently elected Goan Assembly, eight of the eleven MLAs from the Indian National Congress defected to the Bharatiya Janata Party. This exceeds the two-thirds of members needed to qualify for the merger provision’s exemption.
The nearby state of Maharashtra is no less with the Shiv Sena, Nationalist Congress Party and Indian National Congress forming a coalition government and then 40 out of the 55 MLAs leaving the coalition. The state’s administration was subsequently created by the MLAs who had left the coalition by teaming up with the main opposition party, the Bharatiya Janata Party. Even though over two-thirds of Shiv Sena MLAs left the previous coalition, they never joined another political party. Since then, both the party sections identify as the original Shiv Sena. The Election Commission prohibited both party groups from using the original party’s election emblem and name in an interim order.
Madhya Pradesh is another state where the government fell in March 2020 as a result of the resignations of 22 Indian National Congress MLAs from the legislature. Later, several of these MLAs ran for and were elected to office in by-elections using BJP tickets.
Another incident was the historic resignation of 17 MLAs in Karnataka running from INC & Janata Dal in the year 2019. The Speaker rejected their resignation but the government still failed to garner the majority due to the assentation of the MLAs from voting. The Supreme Court maintained the disqualification but permitted them to run later in bye-elections. This was a sheer injustice to the voters and raised a major concern for India’s democratic function.
These examples point out that even though the law was made 40 years ago, it still falters in its application and implementation.
Defection In Other Countries
Most major countries around the world have experienced defection but still don’t have a law about it. Most Asian & African countries like Bangladesh, Kenya and South Africa have anti-defection laws; on the contrary, major nations like the USA & UK don’t have them.
SOUTH AFRICA: The provision regarding floor-crossing which is also known as schedule 6 item 23A in the South African constitution permitted members of the National Assembly or Provincial Legislatures to change their political affiliations without losing their constitutional seats. Nevertheless, this was deleted in 2009 due to public outcry. Similar legislations against defections are seen in countries such as Kenya and Bangladesh.
BANGLADESH: Article 70 of the Constitution of Bangladesh bans parliamentarians from voting against their party’s wishes. In addition, they can’t quit their parties without any legitimate reason just like the constitution says no elected official shall be allowed to shift allegiance at will.
UNITED KINGDOM: Although there isn’t a legal anti-defection statute in the UK, political pressure and party discipline are used to discourage behaviours that have been observed amongst politicians recently about switching their affiliation for personal gain or other reasons. The public often reacts negatively towards those who decamp hence eroding confidence in politicians by extension.
GERMANY: Germany is a country with political processes similar to anti-defection laws in Europe. Political culture and internal party regulations, however, demand strict adherence to the principle of party loyalty even if there is no formal law on anti-defection statutes. Party loyalty is a requirement of members of the Bundestag (German Federal Parliament) which can have serious political consequences including losing support from the party, loss of committee seats and future candidacies. The German Basic Law (Grundgesetz), in conjunction with party discipline, provides a stable structure that effectively minimizes desertion.
USA: The United States also lacks federal anti-defection laws. This is because the political system allows elected officials to change parties without any legal consequences. Nonetheless, some political strategies like committee assignments, campaign contributions, and endorsements are often used to enforce party loyalty within certain contexts. Instead, public and political reactions may be strong against such prominent defections. Such was the case when Arlen Specter left the Republican Party for the Democrats in 2009; it had far-reaching implications for his political career. The absence of anti-defection laws in the US demonstrates how much value is placed on individual freedom as opposed to complete obedience to one’s organization.
Suggestions For Reform
Due to several incidents where the law was unable to serve its purpose, this section of the article explores suggestions that might improve the functioning of the law. The creation of an Independent Adjudicatory Body might be an important step as it will reduce doubts regarding the speaker’s role’s objectivity in deciding disqualification cases. Timely court Review is another solution. Preventing political instability and preserving the law’s deterrent effect can be accomplished by ensuring prompt court review and settlement of defection cases.
There is an alarming need for clearer definitions in the Anti-defection law. By giving mergers, splits and voluntary resignations more precise definitions and rules, we may plug any gaps that may remain. Strengthening party democracy can be a natural way of checking defection. Moreover, persuading members of political parties to practice internal democracy can help lower the number of defections caused by discontent with the party’s programs or leadership.
Conclusion
The 10th schedule of the Constitution necessarily requires a positive reform to ensure political stability. While one can argue that the anti-defection law undermines the rights of the elected members, the rights of the population at large and upholding the tenets of democracy is a much greater right in comparison. The real purpose of politics is to be a representative of the people and not a representative of one’s own needs.
About the Author
Khushi Sheoran is a law student at Jindal Global Law School. She is a public speaker, environmentalist and international relations enthusiast. Her areas of interest include International Law, Constitutional Law, Gender & Sexuality, Corporate Law and ESG.
IMAGE BY: GyanChakra
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