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Defection and Horse Trading: Questions Around Legitimacy of Government

India, the world’s largest democracy, has suffered from ‘Aaya Ram, Gaya Ram‘ politics since the 1960s. Despite an Act in place, the malaise of defection is still rampant in Indian politics.

The political turmoil that unfolded in Maharashtra a few months back brought the issue of defection to the centre-stage of political discussion.

What is Defection?

In politics, a person is said to have defected when they change their political party while being a member of a legislative body. A member can defect for several reasons—disagreement with their party; for political or economic benefits, etc.

Causes of Defection

According to Subhash Kashyap, the politics of defection in India have historical, institutional and motivational origin (Kashyap, 1970). He provides a long list of reasons behind the politic of defection in India.

First reason is the party system prevailing in India. During his times, INC was the ‘one-dominant’ party around, today it is BJP, this one-party dominance party system is an important reason. Adding to it is the lack of ideological orientation and polarisation among the parties.

He also gives importance to the low level of popular involvement in the activities of the political parties, causing a virtual indifference of the people to the acts of defection by their representatives.

Conflict of personalities and temptation of office also induce defection. Moreover, the huge gap between the emoluments and status of a minister and an ordinary legislator is the major reason for the ‘temptation’.

Lastly, existence of powerful lobbies and pressure groups commanding more loyalty than the political parties.

Ramifications of Defection on Democracy

Unprincipled defection is a malaise in democracy. It weakens democracy in several ways. A duly-elected government may collapse if its members defect to any other party, betraying the mandate of the public.

There is a constant threat of losing majority, adversely impacting the functioning of a government. The government is more concerned about maintaining government than working for the welfare of the people.

Defection also leads to horse-trading, i.e., the phenomenon when a political party tries to acquire members from the opposition parties to gain a majority in government. It happens, especially when there is a hung assembly.

Anti-defection Law

To curb the malaise of defection, the Rajiv Gandhi government passed the 52nd Constitutional Amendment in 1985, which added the tenth schedule to the Constitution. Popularly known as the Anti-defection Act, it lays down the provisions for the disqualification of elected members on the ground of defection.

Background

The era of coalition government ushered in India in the late 1960s. Defection and horse-trading spiked to an alarming level. Several state governments were toppled during this time by party-hopping MLAs. In this background, the Anti-defection law took shape.

Provisions of the Act

A member can be disqualified on the below-mentioned grounds:

  • When an elected member voluntarily gives up their party membership

The Supreme Court has interpreted the term “voluntarily gives up” in a broad manner. Thus, even the conduct of an MLA can indicate whether they have left their party. Speaking against the party in public may be seen as giving up the membership.

  • When a legislator violates the instructions issued by their party

Abstaining from voting or casting a vote contrary to the instructions issued by the party is deemed a defection.

  • When an independently elected member joins a political party.
  • When a nominated member joins any political party after the passage of six months.

Image courtesy: Insights on India

‘Merger’ is allowed

However, there is an exception when the defectors are exempted from disqualification—when they defect in a group.

According to the 1985 Act, when one-third of the elected members of a party joined another party, it was considered a ‘merger’ and not a defection.

The 91st Amendment Act, 2003, however, increased the threshold to two-thirds of the elected members of a party. It also limited the size of the Council of Ministers to debar defectors from holding public offices.

Presiding Officer as the sole authority

All decisions regarding disqualification are to be adjudicated by the speaker or the chairperson of the House.

No time frame to adjudicate the matter has been mentioned. Decisions by the speaker are open to judicial review.

Loopholes in the Anti-Defection law

As per the Act, when two-thirds of the elected members of a party join another party, it is deemed a merger. However, this may create confusion if no actual merger has taken place between the original parties.

On the other hand, the Act does not recognise a split.

The speaker has broad discretion in matters relating to the disqualification of a defecting member. The speaker generally belongs to the majority party. In such scenario, the decisions taken by him/her may not be neutral. To add to that, the act does not specify any time period to settle defection cases. Cases often drag on for years.

The power given to speaker was challenged in ‘Kihoto Hollohan vs Zachillhu And Others’ (1992) for being a violation of the basic doctrine. But the Supreme Court of India upheld the powers given to the Speaker. Although the dissenting Judges said that the tenure of the speaker is dependent on continuous support of the majority in the house and is not capable of being an independent adjudicatory authority. They suggested establishment of an independent adjudicatory machinery to resolve such disputes.

Image courtesy: Insights on India

What are the remedies?

Several bodies have suggested various reforms to the Anti-defection Act.

The National Commission to Review the Working of the Constitution (NCRWC) suggests that the disqualification of legislators should be decided by the President (in the case of MPs) and Governors (in the case of MLAs) as per the advice of the Election Commission.

The Supreme Court of India has highlighted the need for an independent authority, such as a separate tribunal headed by a retired judge of the SC.

Is the Anti-defection Law desirable?

There is a debate about whether anti-defection laws are desirable in a democracy. Many scholars lament that anti-defection laws undermine representative democracy as well as the democratic freedom of legislators.

Arguments against Anti-defection law

Undermines representative democracy: Compulsion to act on party lines makes a legislator more accountable to the party than the public. This tears down the very essence of representative democracy. The public gets relegated to the secondary position.

Legislative control over the executive loosens: Without freedom to dissent, Parliament loses its power to exercise control over the executive. In the USA or UK, a member of the ruling party can vote against the proposal of the government, if the MP’s conscience goes against it. However, Indian lawmakers have been denied this right. The Act strengthens the power of the executive by shielding it from Parliament’s oversight.

Restricts debate and discussion: When members are “whipped” to act in a certain way, no scope of independent debate and discussion is left. Deliberative democracy is sacrificed at the altar of stability.

Arguments in favour of Anti-defection law

Maintains stability: The Anti-defection law sets a high bar for a defection to be deemed a merger. This has helped in checking the frequency of toppling of governments. Thus, governments can focus on the welfare of the people rather than being concerned about maintaining majority.

Prevents horse-trading: This Act restricts the selling or buying of votes.

In sync with the electoral mandate: Anti-defection law ensures that the mandate of the people is not mocked by money and muscle power.

Step Forward

Experience has shown that an anti-defection law is important to curtail the malpractices in Indian politics. However, the need of the hour is to reform the Act to strike a balance between the stability of governments and the freedom of speech and expression of the legislators.

Rational use of Anti-defection law: The main purpose of the Anti-defection law is to maintain the stability of the government. Therefore, the law should be applied only to those votes that determine the stability of the government, such as, the annual budget or no-confidence motion.

Promoting intra-party democracy: The 170th Law Commission Report emphasized on promoting intra-party democracy. Parties cannot be dictatorships internally and democratic in their functioning outside.

Conclusion

Ivor Jennings very early said that ‘frequent resignation involve frequent party splits and party splits lead to short and weak governments, which in turn lead to distrust of the democratic system’ (Kamath, 1985). Defection due to the lure of political post or money is a blot on any democracy. Stringent measures to check such malpractices are crucial. At the same time, democratic ethos, such as open deliberations, should not be undermined for the sake of stability.

Works Cited

Kamath, P. (1985). Politics of Defection in India in the 1980s. Asian Survey, 1049.

Kashyap, S. (1970). The Politics of Defection: The Changing Contours of the Political Power Structure in State Politics in India. Asian Survey.

References

Posted in Indian Politics Current Affairs

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