Politics

The Politics of Wholesale Defection 

The recent political development in Goa wherein two thirds of the Congress Legislative Party merged with the ruling BJP to manipulate numbers, by abusing the lacunae in the Anti-defection Law, has led to the debate on re-visiting the Tenth Schedule of the Constitution.

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The unbridled somersaults by elected peoples' representatives in Goa perturbs every concerned citizen in the state. It is in the event of the recent political development though -- wherein the lacuna in the Anti-defection Law was absolutely abused and manipulated -- that stakeholders have once again started to express their concern about the ineffectiveness of the law. Frequent defections made a mockery of the party system and made the electoral system vulnerable to frequent and unnecessary elections which inevitably cost a significant amount to the exchequer, thus necessitating the framing of an adequate anti-defection law. The anti-defection law is contained in the 10th Schedule of the Constitution. It was enacted by Parliament in 1985 and came into effect on March 1, 1985.

The purpose of the Tenth Schedule is to prevent the breach of faith of the electorate. The underlying sentiment being that a constituency sends a candidate to the Legislature on considerations based on the ideologies of the political party he represents and it is only logical that if the candidate, after being elected, leaves that party or acts contrary to its policies, he should be recalled for betrayal of the faith of the electorate. The 91st Amendment to the law in January 2004 recognises a “merger” that requires at least two-third members of a party to join another party or form a new party without falling prey to the anti-defection law. This loophole ensures that the law could easily be manipulated and distorted by members, as in the case of Goa. Formerly, the law recognised a “split” in a legislature party if at least one-third members ganged up to form a new group or joined another party to bolster their numbers.

Increasing political dishonesty and rampant corruption disallowed the law meant to discourage political defections, to evolve properly and thus became a tool in the hands of self-centred politicians to abuse its loopholes for their own benefit.  Contitutional experts opine that the decades-old law which is in itself defective has only led to grave constitutional crises in several states, and subsequent judicial interventions only offered partial solutions. Therefore it is vital to amend the law by effectively plugging all loopholes to combat this menace inorder to safeguard the democratic values. At the heart of the crisis, say experts, is the role of the Speaker who must be an impartial arbiter, but in several instances, the conduct of speakers who allow themselves to be used for gain of their party or leader, is a cause of concern

In an article, Rajya Sabha MP Vijay Sai Reddy, who is known to have introduced several private member bills of significance, wrote that the law is too sweeping a solution to "what was essentially a problem of morality. If a legislator defied the party on which he was voted, surely it was the elector who should punish him and not the party. The anti-defection law essentially removed the conscience of the elected representative and was thus a blow against democracy and constitutionalism. It also took away the agency and freedom of the legislator." He further wrote that the Tenth Schedule is actually to check the Aaya Ram Gaya Ram culture and not exactly about the principles of the law.

Nevertheless, a report of the Law Commission made the following observation about the Tenth Schedule: “The experience of the country with the Tenth Schedule since its introduction has not been happy. It has led to innumerable abuses and undesirable practices. While the idea of disqualifications on the basis of defection was a right one, the provision relating to ‘split’ has been abused beyond recall.” Furthermore, the Law Commission of India in 2015 under the chairmanship of Justice Ajit Prakash Shah had recommended a suitable amendment to the Tenth Schedule which would have the effect of vesting the power to decide on questions of disqualification on the ground of defection, with the President or the Governor (as the case may be) who shall act on the advice of the Election Commission.

A constitutional amendment vesting the power to decide matters relating to disqualification on the ground of defection with the President/Governor acting on the advice of the Election Commission would also help in preserving the integrity of the Speaker’s office, it stated. Hence, Paragraph 6 of the Tenth Schedule should be amended to read: “Decision on questions as to disqualification on ground of defection. (1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the: (a) President, in case of disqualification of a member of either House of Parliament; (b) Governor, in case of disqualification of a member of a House of the Legislature of a State.

Before giving any decision on any such question, the President or the Governor, as the case may be, shall obtain the opinion of the Election Commission and shall act according to such opinion. Provided that no member of a House shall be disqualified under this Schedule, unless he has been given a reasonable opportunity of being heard by the Commission in the matter, it stated. The commission had undertaken an extensive study to suggest electoral reforms, held various rounds of discussions with the stakeholders and analysed in-depth the issues involved. After detailed deliberations, the Commission had come up with the above recommendations. Unfortunately, these recommendations were not followed by legislative action.

Moreover, parliamentary affairs experts while acknowledging its  merits opine that the law certainly has been able to curb the evil of defection to a great extent, but on the same note express concern over the alarming trend of legislators defecting in groups to another party in search of greener pastures, like we saw in Goa. This calls for revisiting the law all over again, to ensure that the Gaya Lals (Gaya Lal was the Congress legislator from Haryana, who changed his party three times in one day leading to coining the phrase Aaya Ram, Gaya Ram) who owe no loyalty to the party or to the voters -- are refrained from abusing the loopholes in the law.