Illicit Affairs: Defection and the Government

THIRD PLACE ARTICLE: The author, Rakshitha Shetty is a second year student at St. Joseph's College of Law, Bengaluru.

The Anti-defection Law aims to curb horse-trading and defection of elected officials from their parties to ensure stability of governments. But even after the law was instituted, defection seems to be a growing trend. It is important to reflect on these patterns and figure out why the law cannot materialize it's intent.

"We hang the petty thieves and appoint the great ones to public office." -Aesop

On 17th of December, 2018, Ashok Gehlot and Sachin Pilot were sworn in to lead the Congress majority government in Rajasthan. A year and half later, Sachin Pilot, who was the Deputy Chief Minister of the state, along with 18 other MLA'S from the Rajasthan Assembly defected from their party and were sent disqualification notices by the Speaker under the Anti-defection Law in the 10th Schedule of the Indian Constitution. This was followed by a series of exchange of arguments over the decisions of the Speaker between the two camps while the people of Rajasthan remain deprived of a stable government in times where they are plagued by a pandemic. In light of these events, it becomes imperative to re-analyze the operation and potency of this law.

India's common law system mimics that of Great Britain and it's trail of commonwealth countries and yet the Anti-Defection law is something that's quite idiosyncratic to the Indian structure. This can be attributed to the multi-party system in addition to the high corruption index in the country, where money dilutes everything.

Defection in the country is as old as the democratic process itself. In a country as diverse as India in all aspects and ways of life, it becomes particularly hard for one party to get enough majority to form a government. A coalition therefore not only ensures that a functioning government is formed but also in ways is like a subunit of the country, representing different beliefs inter-knit into tapestries of political organizations. But these coalitions are fragile and can be easily manipulated to fall apart. One such way is defection. But a one party majority is not immune to the virus of defection either. As coalitions gained traction and became the new norm, defection followed suit.

Political and constitutional academics grew particularly concerned when Gaya Lal, an MLA in Haryana, changed his party allegiance three times in the same day leading to the popularisation of the expression "Aaya Ram, Gaya Ram" to indicate the flimsiness of political fidelity. This was followed by Y.B Chavan's Committee report released in the same year that helped define and comprehend defection as a voluntary act of relinquishing allegiance to the party from which a member of the house was elected. The bill was then introduced with two failed attempts being made during the terms of Indira Gandhi and Morarji Desai before the third time proved to be a charm in this case as Rajiv Gandhi managed to get it passed as the Tenth Schedule of the Indian Constitution. The intended agenda was to make it undesirable for legislators to defect from party lines so that stability of government and its coalitions are not hampered. Under the law, "voluntary giving up" or voting or abstaining from voting contrary to the directions of the political party would be grounds for disqualification, unless two-thirds of them decide to merge with another party which would be an exception to this schedule.

When a member or members of the house choose to resign which is not the same as "voluntarily giving up" from their elected party, they lose their seat in the House but can be eligible to contest for by-elections which are consequent to such defections. A member can be disqualified by the Speaker who acts as a quasi-judicial entity. In case of defection, it takes months for the Speaker to entertain and scrutinize resignations and disqualification notices filed by these members. Amidst all the resort politics and legislators engaging in horse-trading and being auctioned off, a mockery is made of the democratic process and the state is stunted without a government. Despite the discouragement that the law foisted on the legislators in terms of losing their seats, it has had no result in dampening the spirits of avaricious politicians. The lack of accountability and proportionate repercussions for their unprincipled opportunism renders the law ineffective. While the parties are distressed over the lack of loyalty showcased that could put Brutus to shame, who really suffers from this metaphorical stabbing? At a surface glance the likely answer seems to be the party that couldn't maintain majority but the true victim is the electorate whose mandate was rendered valueless.

It is now established that the Presiding Officer of the House gives the last verdict and has the absolute power to decide the fate of legislators that defect. Sometimes after the election results are announced, party officials scramble to form a government and claim majority, where some aim to retain their legislators and some aim to entice legislators to defect party lines and weaken their prospects. In this pandemonium, a member of the house who is seen to be conducting himself in contrast to his party's wishes can be disqualified by the Speaker on the request of the Party Whip. Upon disqualification, he will not only lose his seat in this house but also face the ramifications of not being able to become a legislator again for a certain period of time. But a legislator who is elected into the house might resign before he is disqualified for disobeying party instructions or displaying conduct that signifies such an intent. If this resignation is accepted by the Speaker, then the member can do as he pleases and stand in the by-elections if he wishes to do so. Recently, the Supreme Court has ruled that the Speaker would not have the power to bar even disqualified members from getting re-elected.

This makes it quite evident that the anti-defection law does not do much to discourage resignations or even disqualifications and this is where the law has a discernable chink in its armor. It also gives the Speaker a colossal amount of power, where his decisions ultimately determine the future of what in the moment is a government hanging by a thread. The Presiding Officer often tends to delay making decisions in the matter as there is no provision in the 10th Schedule that stresses on it to be done within any specified amount of time. This resulted in disqualification remaining pending for long periods of time. Since the Speaker is a member of a party, making him the "sole and final arbiter" will lead to a biased conclusion. The Supreme Court is of the opinion that these matters should be adjudicated by a non-parliamentary mechanism but an amendment to this accord is yet to be made.

Then what is it that this law in effect manages to accomplish? When a whip is issued, all legislators from the party are expected to fall in line with the party's policies while voting in the House. This is done to ensure that they get the anticipated amount of votes to shape the decisions made in the House. This stops the members from voting according to their conscience or even in compliance with the demands and needs of their constituents. In such circumstances they not only lose confidence with their vote bank but it also proves to be detrimental to the interests of the people. If a legislator wishes to disobey party orders, a complaint can be filed to the Speaker, effectively disqualifying him from holding his seat in the House. The anti-defection law therefore infringes on the legislator's freedom of speech which is a fundamental right guaranteed by the Indian Constitution and the right to dissent which is an essence of a democracy like ours.

Looking at the law under the current political lens it has become apparent that in the 35 years since the law breathed life, there has been an egregious number of cases of defection while on the other hand parties who gain majority in the polls manage to pass bills with little to no discussions owing to vote security that the law shelters them with. These Bills are poorly deliberated on and parliamentary officials get away with passing illegitimate policies with disastrous consequences. This can be remedied with a revision of the law to remove the dissent clause or restrict it to matters of official importance. In this way, constituents can identify and vote for candidates that reflect their voices rather than basing it on party affiliations. Public apathy can encourage unethical political tactics, making our right to vote freely the only thing that can stifle defection. Additionally if these amendments are realized, it could have the potential to change the shape of Indian politics and bring some much needed sanguinity to it.