INTRODUCTION
Defection has long roots in the Indian political system and has plagued the democratic status of the country for ages. Again in 2021, the occurrences in Puducherry emphasize how ridiculous the anti-defection law can be. Several MLAs from the ruling party benches tendered their resignations, adhering to the typical protocol and reducing the count needed for a successful no-confidence vote. This formula has recently been observed in other States like Madhya Pradesh and Karnataka. In 2022, the government led by Uddhav Thackeray was overthrown and a new government, consisting of a faction of the Shiv Sena, took over. Eknath Shinde, the head of the splinter Sena group, was appointed as the Chief Minister of Mahaarashtra. The most recent case was seen in the 2024 election, with about 25% of BJP Lok sabha candidates defecting over the years to form the party.[1]
The Tenth Schedule of the Constitution, introduced in 1985, aimed to address the issue of political defections by enacting the anti-defection law. The primary goal was to maintain the stability of governments and protect them from legislators defecting from the ruling party. The regulation mandated that if a Member of Parliament (MP) or a State legislature (MLA).
ANALYSIS OF ANTI-DEFECTION LAWS IN INDIA
The act of switching political parties and betraying one’s party is not something new in Indian politics, from the infamous case of ‘Aaya Ram Gaya Ram’ where one party member had switched between parties 3 times within 9 hours to the recent trend of ‘resort politics’ and the overthrowing of state governments. The genesis of these laws happened in the 1960s when Goa experienced its first election after liberation.
“The provision was not limited to no-confidence motions or money bills (quasi-confidence motions). It applies to all votes in the House, on every Bill, and every other issue. It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government. Therefore, an MP (or MLA) has absolutely no freedom to vote their judgment on any issue. They have to blindly follow the direction of the party. This provision goes against the concept of representative democracy.
A representative has two broadly accepted roles, such as an MP in a democracy. One is that they are agents of the voters and are expected to vote according to the wishes and for the benefit of their constituents. The other is that their duty to their constituents is to exercise their judgment on various issues towards the broader public interest. In this, they deliberate with other MPs and find a reasonable way through complex issues. The anti-defection law turns the concept of a representative on its head. It makes the MP neither a delegate of the constituency nor a national legislator but converts them to be just an agent of the party.”[2]
Compared with other democratic countries. In India, the chain of responsibility has been disrupted by ensuring that lawmakers are answerable mainly to the political party. This lack of accountability leaves no room for democracy. In other words, it indicates that no one from the party with the most seats in the legislature, which automatically becomes the governing party, can criticize the government. Additionally, every legislator has a prepared justification for their voting decisions: they were obligated to adhere to the party’s interests. This eliminates the need for them to explain their stances on different issues to the voters who put them in office.
This in itself weakens the legislator as their core incentive does lie in passing bills or examining Instead they become pawns of the party they belong to.
The idea that the anti-defection law is necessary to penalize lawmakers who go against the wishes of the voters appears to have its shortcomings. If voters feel betrayed by the defectors, they can choose to vote them out in the upcoming election. Nonetheless, we have observed that numerous defectors in states like Karnataka and Madhya Pradesh have been re-elected in the by-polls conducted following their disqualification.
Voluntarily giving up membership of a party- Rule 2(1)(a) of the Tenth Schedule[3] mentions that a member of the House is disqualified from the party if he voluntarily gives up his membership of the political party. However, it is not very clear from this paragraph whether indulging in acts like working against the interests of the party, supporting a candidate of other parties in elections, etc., which, technically speaking do not amount to giving up the membership of the party may be considered as the member having voluntarily given up the membership of the party. [4] This basically serves as a loophole but it is important to note that the anti-defection laws make no distinction between dissent and defection, this law does not bind politicians to their political parties indefinitely. Under various circumstances, MLAs can change parties without fear of disqualification.[5] This law allows a party to merge with another party if two-thirds of its members approve of it. In such a situation, no member is accused of defection. In other situations, if a person was elected as the President or Chairman and was forced to resign from his party. As a result, he may rejoin the party after leaving office. As a result, these laws severely. Not to mention that these matters cannot come under judicial scrutiny under rule 7, In the Ravi S Naik v. Union of India[6] case it has been held that the rules relating to anti-defection laws are merely procedural and any violation of these, being a procedural irregularity, was immune from judicial scrutiny.
CONCLUSION
India introduced anti-defection laws in 1985 through the Tenth Schedule of the Constitution to prevent lawmakers from changing political parties and ensuring government stability. Nevertheless, there has been criticism against these laws for weakening the fundamental values of representative democracy. By putting party loyalty first and providing ways for defection, like giving up membership voluntarily, the laws diminish legislative accountability and encourage opportunistic politics. Furthermore, their effectiveness is further reduced by the lack of judicial supervision. Hence, it is essential to reassess these laws to maintain the integrity of India’s democratic system and promote the prioritization of public welfare by lawmakers over party directives.
Author(s) Name: Palak Mahendra (Symbiosis Law School Hyderabad)
References:
[1]Economic Times, ‘2024 elections: Over 25% of BJP’s Lok Sabha candidates are defectors'(2024) Economic Times <https://economictimes.indiatimes.com/news/elections/lok-sabha/india/2024-elections-over-25-of-bjps-lok-sabha-candidates-are-defectors/articleshow/110137691.cms?from=mdr> accessed 11 June 2024.
[2] PRS Team, ‘The Absurdity of the Anti-Defection Law’ (Year not provided) PRS India <https://prsindia.org/articles-by-prs-team/the-absurdity-of-the-anti-defection-law> accessed 11 June 2024.
[3]Indian Constitution 1950, Art 102(2) and 191(2)
[4] Title of Document or Report (2022) Lok Sabha Secretariat <https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/15072022_111659_1021205175.pdf> accessed 11 June 2024.
[5] Satyavan Saurabh, ‘Aaya Ram Gaya Ram has influenced Indian politics for a long time’ <https://e-pao.net/epSubPageSelector.asp?src=Aaya_Ram_Gaya_Ram_has_influenced_Indian_politics_for_long_time_By_Satyavan_Saurabh> accessed 11 June 2024.
[6] Ravi S Naik v Union of India ([1994]) AIR vol 1558, SCR (1) 754, SCC Supl.
