December 6, 2020

Need for Defection in Anti Defection

Anti- defection law was introduced with the aim to uphold the democratic ideals in the world’s largest democracy. It has become imperative to bring into force such a legislation because the count of defectors is mushrooming with each passing election year and the situation even worsened during 1967 Lok Sabha elections, when Gaya Lal changed his party for three times in a single day after popularizing the phrase “Aaya Ram Gaya Ram”.[1] This incident became the driving force to bring Anti-Defection law into the legal framework.

The legislation enforced against defection, disqualifies a legislator from holding office, if he either voluntarily gives up membership of his party or disobeys the directives of the party leadership on a vote.[2] This means that a legislator loses his membership if he votes against the party whip or abstain from voting. This legislation is brought into force to cause deterrence towards the practice of defection but the purpose is defeated. This is witnessed by the entire country in few recent political episodes and thus once again necessitated to initiate the discussion with regard to changes in the anti-defection law.

The political turbulence in Madhya Pradesh due to the resignation of senior Congress leader Jyotiraditya Scindia and 19 other leaders loyal to him reduced the tally of congress to 95 and total strength of house to 209 which led to the dissolution of the government because now in order to be in power Congress must hold at least 105 seats.[3] The resignation of Scindia was not just a result of lure for power and position but is more about self-esteem and ethical and moral values of the person concerned, because Scindia in his resignation letter explicitly cited the reason for his resignation being unable to serve the country by being within the party.[4] The leaders of the party loyal to him also resigned along with him because they were disappointed due to his marginalization in affairs of Madhya Pradesh Congress and with the motive of reducing Kamal-Nath led government to minority. The shift by Scindia has not affected the stability of the government as he was not holding any seat but still due to his influence certain other candidates defected and destabilized the government. The actions of the candidates clearly depicts that they were neither afraid of losing their position nor they were voracious of power because even after knowing that they will lose power after giving up the membership of their party, they defected and this legislation did not bring any deterrence to them.

The “ voluntarily giving up” of seat does not necessarily require a formal resignation in order to express volition. Ravi Naik v. Union of India held that an implication can be derived from the conduct of a member that he has voluntarily left the membership of the political party. This has been witnesses during an incident in the 2017, when JDU leader Sharad Yadav attended the rally conducted by RJD and even addressed the meeting, despite the instructions from his party (JDU) to not attend the rally. This conduct by Sharad Yadav was considered to be “voluntary giving up” of membership of the party by the party leader.

Besides this, the purpose of defection law or the tenth schedule is to uphold democratic ideals. The democracy offers its citizens the right to make choices which needs to be informed otherwise the privilege of making choices will be redundant. The post poll alliances formed during elections does not allow informed choices because while they were voting the parties were separate with different manifestos and suddenly after election they become one with any one of the parties having dominance over the coalition.

The post poll alliances have become very prominent in prevailing scenario with multiple parties contesting elections and vote share being divided. The post poll alliances are recently seen in various states such as in Karnataka,[5] Jammu and Kashmir and many other states.

In Karnataka, the Congress and JDS formed alliance to secure power and these are parties with altogether different issues and policies and contested with different manifestos. The government formed in the year 2018 could hardly continue till the year 2019. The coalition are ideally to uphold the spirits of democracy as it will surge the representation of different sects, for instance, if a regional and national party collaborate can frame better policies for the citizens of that state, as regional party are more aware about the demands and necessities of the citizens, and on the other hand the national party can bring those in consonance with nation’s interest. But the alliance made just for gaining political mileage and power can never form a stable government and uphold democratic ideals and post poll alliances are just for the same.

Moreover, the BJP and PDP post poll alliance during 2014 elections was also not able to complete term and dissolved before the completion on account of ideological differences.[6] Such disturbances not only disrupts stability but also puts burden on exchequer of again conducting the election. Elections are festival of democracy and an extravaganza and organizing election in between the term adds to the expenses in the budget which is already in deficit. Thus, post poll alliances should not be considered as political parties in case of anti-defection law but pre poll alliance can be taken into consideration without any contention as alliances before voting allow the masses to make informed choices.

In addition to this, the independent candidates also play a major role in forming the government but the tenth schedule explicitly states that if after the election, the independent candidate join any party, will be disqualified.[7] The purpose of this provision is not fulfilled because no action is taken against the MPs and MLAs, if they join any party before taking the oath of office. The time frame between taking oath and getting elected leads to a lot of changes in the political arrangements and independent candidates joining different parties. So, in case of defection MPs and MLAs should be considered to be in power as soon as they are elected and not after taking the oath.

With changes in political discourse, changes in law also becomes imperative, the committee which recommended for anti-defection law has cited greed for power and position to be the reason for defection but as recent episode of political turbulence in Madhya Pradesh have compelled to ponder over various other aspects and factors which results in defection by political leaders. With this, various other amendment needs to be made concerning anti defection law and tenth schedule.

[1] Vibhor Relhan, ‘The Anti-Defection Law Explained’ (PRS, 6 December2017) <https://www.prsindia.org/theprsblog/anti-defection-law-explained> accessed 29 March 2020.

[2] Department-Related Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice, Rajya Sabha, Electoral Reforms-Code of Conduct for Political Parties and Anti Defection Law, 2013.

[3] Mukesh Rawat, ‘MP Govt Crisis: Kamal Nath Announces Resignation, Congress Falls And BJP Rejoices’ (India Today, 20 March 2020) <https://www.indiatoday.in/india/story/madhya-pradesh-govt-crisis-floor-test-kamal-nath-congress-bjp-1657768-2020-03-20> accessed 28 March 2020.

[4] MP Political Crisis : Jyotiraditya Scindia quits Congress ; posts resignation on twitter (Business Today 10 March 2020) < https://www.businesstoday.in/current/economy-politics/mp-madhya-political-crisis-jyotiraditya-scindia-quits-congress-resignation-letter-twitter-bjp/story/397929.html> accessed on 30 March 2020.

[5] Revathi Rajeevan, ‘’Coalition Inevitable’: Congress & JD(S) Leaders Hint at Another Post-poll Alliance in Karnataka’ ( News18, 2 December 2019) <https://www.news18.com/news/politics/coalition-inevitable-congress-jds-leaders-hint-at-another-post-poll-alliance-in-karnataka-2408825.html> accessed 30 March 2020.

[6] ‘BJP ends alliance with PDP; Can’t treat J&K as enemy territory, says Mehbooba after resigning’(Economic Times, 19 June 2018) <https://economictimes.indiatimes.com/news/politics-and-nation/bjp-ends-alliance-with-pdp-in-jammu-and-kashmir-presidents-rule-likely-in-the-state/articleshow/64646710.cms?from=mdr> accessed 29 March 2020.

6 The Constitution of India, 1950, Schedule X, Item 2(2).

Author Details: Anika Sharma (Maharashtra National Law University, Nagpur)

The views of the author are personal only. (if any)

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