The Failure Of The Anti-Defection Law Of India

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After the 2019 Maharashtra legislative assembly elections, a political coalition of Maha Vikas Agardi was formed with Shiv Sena’s Uddhav Thackeray as the Chief Minister. In a dramatic turn of events in 2022, several MLAs of Shiv Sena including the senior member Eknath Shinde moved to Gujarat, implicitly hinting at their support for BJP which gave rise to one of the most tensed conundrums in the political framework of Indian electoral democracy.

To quote Suzanne Collins, “For there to be betrayal, there would have to have been trust first” befits the Maharashtrian political crisis where Shiv Sena's rebel MLAs tried to break intra-party democracy, harmony and trust within the members. In political terms, this act is termed as “Floor crossing” or "Defection."

Defection is a popular or a rather notorious activity among politicians. It occurs when an elected representative leaves the party on whose symbol s/he was elected on and joins another party for political or economical gains. Additionally, a politician can defect if they have ideological disagreements with the party, believe it has grown corrupt, or both. The losing party can pay a legislator to cross the floor in order to gain a majority.

India’s democratic fabric has been tainted by such defection cases since 1967, when several Congress legislators defected from their party and created a turbulence in Indian politics. “Aaya ram, gaya ram” got popular when Gaya lal, a Haryana MLA shifted his loyalty thrice in a single day which triggered several more defections in a span of few weeks resulting in the dissolution of the Haryana legislative assembly and fresh elections were held in 1968. This later became a subject of mockery and shame.

It was in this backdrop, anti-defection law was introduced in 1985 inorder to curb this political evil. However the recent developments in Maharashtra raises the question of whether the anti-defection law transforms the picture of Indian politics for the better or is it just another toothless law?

ANTI-DEFECTION LAW AND ITS LOOPHOLES

Anti-defection law was introduced through the 52nd Amendment in the 10th schedule to ensure that a party member does not violate the mandate of the party and in case he does so, he will lose his membership of the house except in the case of merger of political parties which is if the said merger is with two-third of the member of the legislative party who consented to merge with another political party.

Anti-defection law was made with great enthusiasm and hailed as a strong step to put an end to unethical practices but unfortunately, it has been criticized for increased corruption and horse trading.

It’s vesting of the decision-making authority in the presiding officer who often belongs to the ruling party in the house and has an inclination towards his/her own party cannot be trusted for a fair, just and impartial decision. Most of the time the presiding officer lacks the legal or technical knowledge and experience to decide on the case. Making the presiding officer the absolute authority of the house on the decision of defection cases and not an independent body like judiciary or election commission is unconstitutional because it renders judicial review to nullity.

Also, the point to be noted here is that there is no time frame given in the law for the presiding officer to take a final decision on the cases of disqualification arising out of defection which often acts as the biggest loophole in the law.

The critics have also questioned the law on how it doesn't specify the difference between dissent and defection. A legislator might not agree with every ideology of the party and should have a right to dissent and exercise his own conscience especially if he belongs to the marginalised or minority section of the society. It's not just irrational but also extremely unfair. The system being more opaque provides a favourable environment for corrupt political parties to get away easily.

WAYS FORWARD

While the anti-defection law was declared as the “first step towards cleaning a public life” by Rajiv Gandhi, there is no denying the fact that the anti-defection law has also failed to prevent defection and cannot be held as an ultimate law for cleaning the unethical political system with given loopholes.

Although, there are lacunae in the anti-defection law, adopting several strategies would help in filling the gaps. For instance, making the system more transparent by bringing parties under RTI as RTI will bring more transparency on the money that's moving unofficially within parties which is later used for horse trading and also promoting intra party democracy and harmony among political parties can decrease corruption and defection to an extent.

The U.F. steering committee meeting in 1997 favoured an amendment which would rule out the dissolution of the lok sabha and the state assemblies before the completion of their term. The committee believed this would discourage defection.

The authority on deciding defection cases should fall on independent bodies like judiciary or election commission instead of the speaker and should have a fixed time for decision. Speakers when elected must resign from the party they belong to for more non-partisan judgement on defection cases. Another suggestion can be that all the disqualified members shall neither be entitled to contest elections nor would they hold public office for 5 years from the date of their disqualification. Transparency on funding and expenditure of parties or state funding of elections can help make law more effective. Establishing punishment for the political parties who get accused of corruption or horse trading will make the law more stringent.

Therefore, re-examining the anti-defection law is the immediate need of the hour to allow it to serve its true purpose.

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By Nikita

Nikita is a 1st-year student in the Political Science department of Hindu College.

Email- nkt60930@gmail.com.