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Anti defection law and the Indian voter

Legally SpeakingAnti defection law and the Indian voter

Prior to 1985, the shaky foundations of state governments was riddled by the Aayaram-Gayaram brand of politics where elected legislators thought nothing of switching allegiance for personal or political benefit.


Defections  have haunted Indian polity for over severaldecades.  Between 1967 and 1972, from amongst 4,000 members of the Lok Sabha and the State and Union Territory Legislative Assemblies, there were nearly 2,000 cases of defection back and forth.  By late March 1971,nearly half of the legislators had changed party affiliations and severalmore than once. Defections have invariably been amply rewarded and demonstrate forces at play,which are beyond and de hors ideological dissent.With the increase in coalition governments, the frequency of new alliances began,not on ideological basis, but purely as power sharing arrangements.

Random defections by legislators motivated by the lure of positions of power and authorityconstitute a fraudon the electorate and a breach their commitment to the voter while seeking election.Post electoral victory, there is little, if no accountability vis-à-vis the voter, and the moment opportunity presents, the practice of horse tradingbegins,as defectors are usually rewarded with positions or perquisites, exposing the dark side of our democracy, and the ethical limits of representation in our representative democracy.

Prior to 1985, the shaky foundations of State governments wasriddled by the AayaramGayaram brand of politics where elected legislators thought nothing of switching allegiance for personal or political benefit.

In its original form (1985), the Tenth Schedule of the Indian Constitution dealt with both splits and mergers but in 2004, the provision on ‘splits’ was omitted and what remained was protection to legislators whose original political party merged with another party with not less than 2/3rd of members of the legislative party agreeing to the merger.

Under the Tenth Schedule, the Speaker acts as an arbiter to determine whether a split or merger was taking place under Clause 6 and to determine whether defection had taken place or not. Unlike the United Kingdom, in India,Speakers do not resign from their party upon  being elected to the post. Even prior to the coming into force of the Tenth Schedule,Speakers were known to get embroiled in controversies with allegations of partisan behaviour of Speakers. Evenin interpreting and applying the anti-defection law, the conduct of Speakers is invariably called into question. Verdicts by Speakerson defectionswhich should be prompt, often take days to months,exposing the un-workability of the anti – defection law in the absence of any timelines.

There have been consistent questions raised on the efficacy of the Anti-Defection Law since its introduction.Recently in January 2020, while referring a matter relating to Manipur legislators to a Constitution Bench, the Supreme Court recommended that the Tenth Schedule needs serious re-working. Theneed for a re-think on whether disqualification petitions ought to be entrusted to theSpeaker as a quasi-judicial authority,given that de facto or de jure the Speaker owes allegiance to the ruling partyand that there isa need to decide defection matters swiftly, independently and impartially.

Manipur has been a hotbed of Tenth Schedule challenges. In 1992,inKihotoHollohan, while considering a constitutional challenge tothe Tenth Schedule, the two dissenting Judges of the Supreme Court had reminded us that the framers of the Constitution had consciously kept the office of the Speaker away from election disputes and questions of disqualification and, that by making the Speaker the final arbiter of disputes or defection, likelihood of bias could not be ruled out. Yet our law makers chose to ignore past incidents where the role and conduct of Speakers had been subjected to no confidence motions and the office of the Speaker has repeatedly been dragged to court.

Whether it is Telangana (2016), Arunachal Pradesh (2016), Telangana (2018 & 2019), Sikkim (2019) or Goa (2019), the Tenth Schedule and the disqualification rules framed by different legislatures have not proved to be a hindrance to our elected representatives in either bringing down a government or defecting and reaping the benefits of such actions. Since then, Courts have been approached repeatedly to complain about the conduct of Speakers, who have added elasticity to the limits of the Tenth Schedule where there should have been none.

While Courts are cautious to intervene, judicial inroads into the functioning of the Tenth Schedule have increased,though limited to grounds such as lack of jurisdiction, illegality, mala fides, failure to give hearing and perversity.  Yet the pattern and manner in which governments are shaken or brought down remains the same, irrespectiveof who is at the helm at the Centre.The loser is the voter who finds his elected representative/s enjoying the perks of the post in a luxurious resort and also otherwise rewarded for bringing down governments. The Anti-Defection Law in its current form has proved to be woefully inadequate and ineffective in achieving the key objective of preventing political instability and ridding the polity of quid-pro-quo deals.

When the Constitution was framed, there was a belief that our constitutional functionaries should have the powers and be bound with conventions as were prevalent in the United Kingdom. While such noble thoughts defined the spirit in which the Constitution was framed, the reality is different and the spirit of the Constitution is not given due respect by those who have taken an oath to bear true faith and allegiance to the Constitution.

While framing the Constitution, concerns were also raised about the independence of Governors appointed at the pleasure of the President and apprehensions were voiced that the Centre might try and do mischief via such functionaries in the provinces. Governors were to be ornamental heads, yet the prophesy of mischief by the Centrehas been repeatedly witnessed over the past many decades in the wanton destruction of State governments, which are not aligned to the political party holding power at the Centre.

Whether it be the office of the Governor, Speaker or the President, these cannot be instruments of de-establishing democratically elected governments. As our constitutional functionaries let matters slip between the cracks, governments don’t just fall but are brought down, leading to cynicism in the hearts of citizens who having participated in the electoral process find the spirit of the Constitution violated and their franchise wasted.

Addressing the Constitutent Assembly in May 1949, Dr. Ambedkar believed that we (India) will have to depend upon the goodwill of functionaries under the Constitution. Yet the human element in exercise of unregulated discretionary powers and mere reliance on the supposed good sense of constitutional functionaries has not proved adequate to deal with defection,the bane of electoral politics.

As we await the outcome of the Rajasthan imbroglio of dissent and rehabilitation of a section of the Congress, Prof Shibban Lal Saxena’s words in the Constitutent Assembly come to mind – “Democratic trends are like a wild beast.  Say what you will, democracy goes by the whims and fancies of parties and the masses.  There must be some such machinery which will keep this wild beast under control.” It is time for Parliament to have a hard relook at the 10th Schedule and reframe it with guidelinesand timelines for the Speakers and the Governors, so as to ensure stability and efficiency in governance —a right which is fundamental to the voter.

Ketaki Goswami is an advocate practicing at the Delhi High Court and Supreme Court, Sr. Adv. Siddharth Luthra has served as the Additional Solicitor General (ASG) of India. He practices at the Supreme Court and Delhi High Court.

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