Lacunae in anti-defection law

Politicians misinterpret the law, Speakers play truant, and there is no punishment for defection

The anti-defection law was enacted to eliminate political defections. Crossing the floor by legislators looking for greener pastures had created political instability in many states. Governments were toppled with the help of defectors, and governments were formed with their help, sometimes only to be brought down by the same defectors moving out in search of still better opportunities! This display of the extraordinary mobility of legislators had made Indian democracy a laughing stock in the world.

So, in 1985, the Rajiv Gandhi government brought in the anti-defection law to curb this unseemly practice. Thirty-six years later, defections continue.

There are examples of the entire legislature group of a party and its leader defecting to another party, which becomes the ruling party overnight. Retail defections have been taking place in the state Assemblies and even in Parliament. But wholesale defections, where an entire unit of a national party defects, are a new trend.

The law on defection contained in the 10th Schedule of the Constitution disqualifies a member of the legislature if he voluntarily gives up his party's membership or votes in the House contrary to the direction of his party. The direction issued by a party to its members is called a whip, which members need to obey. However, whether one has given up party membership voluntarily or not is tricky since it has to be determined based on the facts and circumstances of each case.

In Jagjit Singh v. State of Haryana (2006) and Rajendra Singh Rana v. Swami Prasad Maurya (2007), the Supreme Court held that the voluntary nature, or otherwise, of one’s giving up of party membership is to be decided based on the conduct of the legislator. Voting against the whip of a party is a straightforward case that does not require much interpretation. It can be decided based on the evidence of recorded votes. But most cases that have come up for the decision of the Speakers come under the 'voluntarily giving up' category. Decisions on this category of cases have given rise to many controversies.

An analysis of the administration of the law on defection reveals many lacunae. The Speaker/Chairman is the tribunal that decides the issue of disqualification. The complaint is that they are not impartial and invariably take decisions to suit their party's interest. The Speaker's impartiality was raised as an issue in the Kihoto Hollohan case in the Supreme Court, where the constitutionality of the anti-defection law was challenged. The Constitution Bench of the Supreme Court had expressed great confidence in the impartiality of the Speaker, who is a high constitutional authority. The political class is also vehemently opposed to handing over the adjudication of defection to any other authority.

A severe problem in anti-defection cases is the abnormal delay in their adjudication. The 10th Schedule does not fix any timeframe within which to determine a disqualification case. This is a defect that some Speakers have very successfully exploited. For years, no decision is taken, and the defectors continue to enjoy the fruits of defection. Finally, the Supreme Court has now fixed a timeframe of three months within which the Speaker is required to dispose of the case (Keisham Megha Chandra Singh v. Speaker, Manipur Legislative Assembly, Supreme Court, 2020). With this decision, it is hoped that deliberate delays in the disposal of disqualification cases will stop.

Another problem is the misinterpretation of the term 'merger', used in para 4 of the 10th Schedule. All the defectors who claimed protection under this, and their benefactors, have invariably misinterpreted it to their benefit. This para says that a defector can plead a merger of his political party with another party to defend against the charge of defection. However, a merger can be pleaded only when the original political party merges with another party and not less than two-thirds of the legislature party members have agreed to such a merger. Interestingly, the defecting members often take the plea that if two-thirds of the legislature party members merge with another party, then the merger is complete. Para 4 makes it abundantly clear that the merger has to occur first between the original political party of the defectors and another party. The legislature party members can only agree to the merger of their original political party. This would mean that unless the original political party merges with another party, there can be no merger under para 4 of the 10th Schedule.

Further, if the original political party is a national party, then the decision to merge has to be taken by the national party. Its state unit has no authority to decide on the merger. The Supreme Court has clarified this point in Jagjit Singh's case. Several legislators have defected during the past five years, mistakenly believing that theirs is a valid merger. They are safe only so long as the presiding officers delay their decisions.

Another lacuna is that the law does not disqualify a defector from contesting election during the remainder of the term of the House. So, a defector can come back to the same House within six months. A defection is politically an immoral act. A person elected by the people because of his ideology or public stand on issues or his commitment to certain causes leaves all that and joins another party making a mockery of the people's choice. He should face certain punishment. The best punishment would be disqualification from contesting again during the term of that House. This may act as a deterrent against defection.

But the defection of legislators reflects a more profound affliction of Indian politics. The sight of legislators being transported like cattle to a friendly state and put up in luxury hotels under surveillance whenever there is a political crisis in a state shows the fragility of political loyalty of our politicians. Political parties have no moral framework. So, they will always try to circumvent legislative restrictions on them. In the circumstances, what is the future of the anti-defection law is anybody's guess.

(The writer is a former Secretary General of the Lok Sabha)