Are your representatives really representing you?: A comment on the anti-defection laws in India

India follows a democratic system where citizens elect representatives to form a governing body such as the parliament. Representatives stand in elections and citizens vote to choose their representatives. The presence of strong and legitimate opposition is a sine qua non to check any arbitrariness and misuse of power. Indian democracy stands on the principle of a multi-party system to encourage the need for a legitimate opposition. However, too many political parties can ultimately prove to be a bane for the healthy sustenance of Indian democracy. While it is true that multiple parties can make a strong opposition that can promote democratic debates and discussions over vital national issues, too many parties with no real ideological or visionary difference can dismantle the very fabric of representative democracy. The presence of a variety of options with not much fundamental difference leads to members switching allegiance to a different political party. Such a change is termed as defection.

The menace of defection is not new to Indian Politics. It has been riffing ever since the ‘aaya ram gaya ram’ politics of the 1970s when as many as 142 MPs and 1900 MLAs changed their political parties.[1] India has a total of 2293 registered parties, of which only 7 hold the national outreach.[2] These multiple parties have led to no single party preferences by the voters. Such verdicts lead to uncertainty and nasty negotiations between the parties and the winning candidates. Now and then, we hear about elected representatives being herded off to a luxury hotel as captives to prevent them from breaking allegiance to the party. This kind of drama has become more prominent in state-level elections where no single party holds a clear majority. While this created the much-needed political diversity, it also created havoc with representatives, devoid of any conscience, solely driven by their greed, switching political parties, thus eroding the very legitimacy of the electoral process. We have seen such political drama recently in Madhya Pradesh, where 22 ruling MLAs rebelled against the Chief Minister after Jyotiraditya Scindia’s resignation and risked losing their seats and membership to the party.[3] Later there was a change of government in the state. In another scenario, we see MPs switching allegiance not because of greed but for the lack of any meaningful discourse in the party. In the Rajasthan political crisis, the then Deputy Chief Minister Sachin Pilot, along with some 30 MLAs, rebelled against petty party politics.[4] As a result, Pilot, along with his supporting MLAs, was sacked of their power positions and membership in the party. Chief Minister Gehlot later asked the governor to call a special assembly for a floor test. In such cases, the governor, has no option but to act on the advice of the CM and his council of ministers. The SC reiterated this in Nabam Rebia,[5]case where it was held that the governor is bound to summon the assembly for a floor test on the recommendation of the cabinet.

The main reason why this practice has been flourishing is that our representatives have been successful in working through the loopholes in the law. The constitution, on its inception, did not have an anti-defection law. The law was enacted only in 1985 in the form of the Tenth Schedule of the constitution. The anti-defection law in India sets provisions for disqualification on the grounds of defection to another political party. But the law has also been time and again applied in cases where an MP or MLA votes against the party policy on certain key issues. The latest case being the appeal for disqualification YSRC MP Raghurama Krishnan Raju for commenting against the party president on certain issues.[6] Even the Supreme Court has time and again held that members are deemed to have voluntarily given up their membership if they oppose their party on certain issues.

These kinds of laws lead to situations similar to that of Madhya Pradesh and Rajasthan. It leads to mass defection as individual legislators do not have the freedom to digress from or question the party view when there is a lack of democratic discussions inside political parties about issues of national importance. Thus, the law indirectly puts a representative’s loyalty towards the party before the people of his or her constituency and eventually fails to promote dissent and independent thinking. This eventually leads to candidates showing more loyalty to the party leadership to save their position of power instead of working and vouching for the people of their constituencies. Parties in power have been using this law to further their political motive. In cases of an alliance between two ideological opponents, it is binding upon individual MLAs to remain true to their constituency who had sent them to the House because they opposed a certain party. However, the parties often use the law to hold the party higher than the well-being of the people. A perfect example would be the Citizenship Amendment Act (CAA), which has been passed in haste without any serious discussion because the party member who might even have certain reservations did not come forward because the Anti -defection laws prevent any sort of dissent by the MPs within the political party. Thus, the public’s faith in democracy and their representatives is what loses in this entire drama.

Further, another loophole that the parties workaround to fulfill their agenda is the power given to the Speaker of the house under the anti-defection laws. The Kilhoto Hollohan[7] case has upheld the constitutionality of the anti-defection law. However, what is more relevant in the present times is the minority judgement in this case. Justice LN Sharma and JS Verma declared the anti-defection law as unconstitutional on the ground of unfettered power being vested in the hands of the Speaker. The law reeks of biases as the Speaker is a part of the party holding majority in the house. They largely depend on the ruling party throughout the term. Thus, expecting them to maintain impartiality in the decision making for the disqualification of a defector is futile. In the past few years, we have seen various such cases that have proved the concern in the minority judgment right. Recently in Rajasthan, the Speaker sent disqualification notices to Sachin Pilot and other dissenting MLAs for refusal to attend party meetings. The power to challenge the Speaker’s decision is limited as it can only be questioned in the writ jurisdiction of the Supreme Court on the ground of being ultra-vires or malafied. Even with such a stark presence of biases in the law, a constitution bench of the Apex Court in the case of Rajendra Singh Rana v. Swami Prasad Maurya,[8] held that it is the Speaker who has to decide the question of disqualification with reference to the date it was incurred.

The anti-defection law has been a complete failure to curb the menace of defection. The law also debars any disqualified member from holding any public office for the duration of their disqualification to the time they contest an election to the house. But, just like the loopholes in any other provision under this law, this provision can only be applied if any legislator changes the political party after being elected. But the politicians have found the way around this law too. Legislators first resign from the MLA/MP and then join another political party. We have seen in Madhya Pradesh recently, where all the defectors were welcomed in the cabinet without being elected via due process. This only happens because we have no particular law to prevent the entry of such unelected defectors. Such incidents are a huge deception to the people of the country who exercise their faith in a representative democracy. It undermines the power of the electoral process. Defectors change their party association, which ultimately allows a different party to form the government, which was rejected by the voters in the election.

The present-day anti-defection law comes under scrutiny, every time a case of defection emerges in the country. It is particularly because the law undermines the representative democracy in the country. The current anti-defection law should be amended to forbid the defecting member from being re-elected in the by-elections. A member, on resignations, must only become eligible to contest in the upcoming general elections and not the by-elections that are conducted due to their resignations. Furthermore, there must be some genuine cases of resignation owing to dissent. Thus, the independence of lawmakers in the House should be promoted. Thus, if the members are allowed to defy party whip, they would be able to dissent on certain issues independently without any fear of resignation from the party or the house. It would enliven democratic dialogue.

Moreover, the present-day legal system also lacks provisions to protect legislatures from the whims and fancies of the political leadership that could again lead to resignation. The Representation of People’s Act must be amended to make the selection of representatives in the political party more democratic. The Speaker being the final adjudicating authority for the disqualification process, is outright unconstitutional. The President or the Governor[9] , along with some retired judges,[10] should form a tribunal to decide the disqualification based on the enquiry of the Election Commissioner.

[1] https://www.prsindia.org/theprsblog/politics-defection

[2] India now has 2,293 political parties, 149 registered between February & March, Economic Times March 17, 2019 https://economictimes.indiatimes.com/news/elections/lok-sabha/india/india-now-has-2293-political-parties-149-registered-between-february-march/articleshow/68451605.cms.

[3] Jyotiraditya Scindia, 22 MLAs quit Congress, leave Madhya Pradesh govt on brink of collapse, First Post, March 10, 2020 https://www.firstpost.com/politics/jyotiraditya-scindia-22-mlas-quit-congress-leave-madhya-pradesh-government-on-brink-of-collapse-8137101.html.

[4] Rajasthan political crisis | Sachin Pilot camp moves High Court challenging Speaker’s notice on disqualification, The Hindu, July 16, 2020 https://www.thehindu.com/news/national/other-states/sachin-pilot-camp-moves-rajasthan-hc-challenging-speakers-notice-on-disqualification/article32102452.ece.

[5] Nabam Rebia v. Deputy Speaker, (2016) 8 SCC 1.

[6] Srinivas Rao, YSRC appeals to LS speaker, seeks disqualification of rebel party MP, Hindustan Times July 3, 2020 https://www.hindustantimes.com/india-news/ysrc-appeals-to-lok-sabha-speaker-seeks-to-disqualify-rebel-party-mp/story-xtU7iG5WAh7uENREtKcqOK.html.

[7] Kilhoto Hollohan v. Zachillhu and others, (1992) SCR 1 686.

[8] Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 27.

[9] Law Commission of India, Reforms of Electoral Laws, Report No. 170, (1999).

[10] Keisham Meghachandra Singh v. The Hon’ble Speaker Manipur (2020) SCC OnLine SC 617.


ABOUT THE AUTHOR

Anushka Singh

photograph

Anushka is a second-year student at West Bengal National University of Juridical Sciences, Kolkata.

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