Why the anti-defection law has failed to deliver - Hindustan Times

Why the anti-defection law has failed to deliver

ByGautam Bhatia
Jul 30, 2020 06:04 AM IST

Its inbuilt loopholes, the partisan role of institutions, and the influence of money in politics have weakened the law

The ongoing political crisis in Rajasthan is neither new nor uncommon. Turbulence in governments — involving the “switching of sides” by elected representatives — has been increasingly frequent in recent months. The past year has seen the toppling of two state governments in Karnataka and Madhya Pradesh amid allegations of political defections and horse-trading. There has also been turmoil in Goa and Manipur.

The Tenth Schedule is no longer an effective check on defection(Praful Gangurde)
The Tenth Schedule is no longer an effective check on defection(Praful Gangurde)

The phenomenon in question — i.e., bringing down an elected government by depriving it of its majority through the defection of Members of the Legislative Assembly (MLAs) — goes back a long way. To resolve this problem, in 1985, the Constitution was amended to include the Tenth Schedule (also known as the anti-defection law). The anti-defection law provides that members of political parties who disobey the whip or vote against the party in a confidence motion, will face disqualification. As recent events have made clear, however, the Tenth Schedule is no longer an effective check on the phenomenon of defection, and an urgent reconsideration is required.

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There are a few reasons why this is so. The first is that the defecting MLAs have found a way around the restrictions in the Tenth Schedule. Instead of formally “crossing the floor” or voting against their party in a confidence motion, they resign from the party. This brings down the party’s strength in the House, and the government is toppled. A few months later, when by-elections are held, the same MLAs then stand for election on the ticket of the opposition party, and are returned to the assembly. This, it should be clear, is defection in all, but the most formal sense. Unfortunately, in their recent judgments, the courts have failed to stop this practice (although, arguably, the language of the Tenth Schedule does not leave much room to the judiciary).

The second reason is that no matter how well-drafted a constitutional provision is, ultimately, its implementation depends upon constitutional functionaries acting in good faith. As BR Ambedkar pointed out soon after the framing of the Constitution, every constitutional text can be subverted if those charged with running the affairs of government are inclined to do so.

In recent times, it has become clear that the major constitutional actors involved in times of constitutional instability — i.e., the governors and the speakers — do not act in good faith. In every constitutional crisis over the last few years, governors have acted like partisan representatives of the political party that appointed them, and have flouted constitutional conventions with impunity (from deciding which party to call first to form the government in a hung house, to ordering — or refusing to order — floor tests to prove majorities). Thus, despite the fact that the governor — as an unelected functionary — is supposed to play a minimal role in the affairs of the state, the individuals in that position have interfered on behalf of their erstwhile political parties. Speakers have done little better.

Third, the judiciary itself has not proved up to the mark. For example, during the Karnataka crisis last year, the Supreme Court (SC) — while ostensibly passing a “balanced order” — effectively overrode the provisions of the Tenth Schedule. It said that rebel MLAs, whose disqualification petitions were being considered by the Speaker, could not be compelled to participate in the proceedings of the House. The rebels were happy for they did not have to obey the party whip. This reduced the effective majority of the government.

More recently, the Rajasthan High Court effectively injuncted the Speaker of the Rajasthan Assembly from acting upon disqualification notices, despite clear SC precedent to the contrary. As observers have pointed out, if it is the case that horse-trading is in progress, then an indefinite injunction on the Speaker’s ability to act under the Tenth Schedule will only provide further fillip to such actions.

The last — and most under-discussed — aspect is the presence of money in politics. It has been widely reported that huge sums of money are offered to MLAs to desert their parties and bring down the government. This is enabled by the existence of electoral bonds, which allow for unlimited and anonymous funding to political parties. Under the electoral bond scheme, phenomenal sums of money have been donated to political parties over the last two years. Unfortunately, a petition challenging the constitutionality of the electoral bond scheme has been pending in SC for the last two years. Despite multiple election cycles, the apex court has taken no action upon it.

In sum, therefore, the anti-defection law needs to be improved (there have been suggestions, for example, that disqualification or resignation should be accompanied by a five-year-long bar from standing for elections again). More crucially, however, the legally-sanctioned influence of big money in politics must be curtailed. If these steps are not taken, Indian democracy risks dissolving into a sham quickly.

Gautam Bhatia is a Delhi-based advocate
The views expressed are personal
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