Opinion: Fighting The Toothless Tiger – Anti-Defection Law

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Yet another non-BJP government has fallen to machinations and midnight conspiracies and the focus is back on the anti-defection law and its purpose.

The case of Maharashtra is before the Supreme Court and is sub-judice, but it is important to understand how the verdict will impact the anti-defection law and the Tenth Schedule of the Constitution, and how it will make sitting ducks of elected representatives besides eroding the importance of elections.

In the late 1960s, the YB Chavan committee, tasked with tackling political defections, observed that “there can be no infallible deterrent for the kind of political defections that are rooted in political irresponsibility and opportunism and create instability besides bringing the functioning of democratic institutions into disrepute.”

Regardless, a law was framed to best ensure political stability along with the safeguarding of people’s interests.

Yet today, the anti-defection law has been reduced to a tool for the very political instability, irresponsibility and opportunism it aimed to avoid.

Karnataka, Arunachal Pradesh, Madhya Pradesh, Rajasthan, and now Maharashtra – the political upheavals in these states in the last few years tell a common story of failure to uphold the objective of the anti-defection law. Each case highlights a different grey area of the anti-defection law.

While the defections in all these states were unique in one way or the other, the thread that binds them is the role of external support to the defectors. It is hardly a surprise that between 2016 and 2020, 44.9% of the defected legislators of various states chose to re-contest elections by joining the Bharatiya Janata Party (BJP). The trend is uniform – the BJP either rules by winning elections, or, in case it fails, by toppling democratically and constitutionally elected governments with the (mis)use of political tools.

For the majority government at the Centre, the use of every tool – saam, daam dand, bhed – or, in a more contemporary setting, investigating agencies, pressure and inducement, comes easy as it circumvents the constitutional morality of respecting the people’s mandate and rule of law. The defections in Maharashtra, as in the other states, are fuelled less by the state government’s [alleged] ineffectiveness and more by the central government’s interference.

The Law As Intended

The defections resurrect several important constitutional, jurisprudential and political questions. The Tenth Schedule, read with Article 102 and 192 of the Indian Constitution, was enacted to prevent the “aaya ram, gaya ram” tendencies of political representatives.

The rationale was (and is) that most candidates are elected on the basis of their party. The party also arranges their election expenses, and they fight elections on the party’s manifesto. So, defection means playing with the fundamental trust of the people. With newer ways being devised to evade the law, the effectiveness of the Tenth Schedule requires a revaluation. In the meantime, though, the law has to be implemented in letter and spirit.

Reshaping the case of ‘Split’ as a ‘Merger’

Going by Paragraph 4 of the Tenth Schedule, defectors can escape disqualification only in the case of a merger. A merger refers to a situation where at least two-third MLAs of a political party either a) merge with another political party or b) form a new political party.

The Eknath Shinde camp claims the protection of Paragraph 4 without satisfying any of these conditions.

The defections in Maharashtra, as in the other states, are fuelled less by the state government’s [alleged] ineffectiveness and more by the central government’s interference.

It claims to be the “original Shiv Sena”, thereby eliminating the need to form a new political party.  It further claims to have “formed a coalition” with the BJP, also skirting the condition of “joining” other political party. So, on what ground can the Shinde faction claim protection under Para 4, when there has been no merger at all?

Attempts have also been made by the Eknath Shinde camp to showcase the entire episode as the party “choosing a new leader”. The choosing of a new leader in line with any party’s inner democracy requires certain legitimate actions such as calling for an election, tabling a resolution etc. In this case, there was no such democratic expression. It was more a case of horse-trading aimed at serving personal interests and causing political instability.

Additionally, the provisions under Para 3 with respect to a “split” were repealed as they had been reduced to a tool for causing political instability. About a decade later, the only difference is – what was done earlier by one-third members is now being done by luring away two-third members of a party.

People in India vote for political parties, not individuals. So, clarity on the law of merger is of utmost importance.

The curious case of Speaker and Governor

In Maharashtra, the post of speaker had been vacant since February 2022. The Deputy Speaker should have been authorized to decide on the disqualification of the rebel camp. However, the Supreme Court’s decision ordering the floor test tied the hands of the Deputy Speaker. The anti-defection law gives the presiding officer of the house the power to decide on disqualification. Ignoring this fundamental principle will have a long-term ripple effect as a precedent. While their disqualification verdict was awaited in the Supreme Court, the defectors went on to elect the Speaker of the house. Can a Speaker elected by disqualified members of the house be considered qualified? 

The issue of the Governor acting at the Centre’s bidding has been debated for long. In Maharashtra, the political involvement and tilt of the Governor’s office in the entire episode was brutally evident, from the protection given to the MLAs to the scrutiny of the government’s decisions beyond the permissible limit. In such a situation, ordering a floor test flies in the face of political neutrality and good faith.

Dangerous Precedent

The political drama in Maharashtra highlights the constitutional failure of non-partisan institutions in performing their duties and the failure of laws in achieving their desired objectives. The consequences of this failure are the cost we pay as a democratic polity.

Denying democratically elected legislators a complete term to show their mettle and depriving citizens of the opportunity to judge their work fundamentally strikes at the very core of a democracy. It makes for a brand of politics that is driven by self-interest than solidarity. It encourages the separation of politics from moral justification and halts the collective efforts towards protection of constitutional norms and social inclusivity.

There is an urgent need to ensure that the law meant to protect morality in politics does not become the very cause of moral hazard.

(Priyanka Chaturvedi is Member of Rajya Sabha and Deputy Leader Shiv Sena.)

Disclaimer: These are the personal opinions of the author.

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