With talk of shifting allegiances in Manipur and Goa ahead of the election results, we might as well call it the defection season. A total of 690 candidates will be elected in the five states of Uttar Pradesh, Punjab, Goa, Uttarakhand, and Manipur. With so many seats at stake, even the slightest mismanagement of electoral strategy and leadership can rock the boat beyond salvation.
The fact that it’s all too common to see politicians leave all loyalty and ideology and jump ship to the highest bidder in lust for power and position makes for an abysmal poster for the world’s largest democracy. But this is not a new problem. Leaders of modern India have been grappling with this flaw in our system for ages.
The 1985 Anti-Defection Act
To curb this brazen menace, former Prime Minister Rajiv Gandhi had introduced and successfully brought a law with the 52nd Amendment Act in 1985. It inserted a ‘Tenth Schedule’ in the Constitution, which to date is known as the “Anti Defection Act, 1985”.
The idea came about in response to the defections that took place in 1967 when legislator Gaya Lal won as an independent candidate from Hassanpur in Haryana. He changed parties thrice within a day — jumping from the United Front to the Congress and back. On his return to the ‘grand old party’, state Congress leader Birendra Singh addressed the press and said: “Gaya Ram is now Aaya Ram,” coining one of the most infamous phrases: “Aaya Ram, Gaya Ram.”
This law, however, has not dissuaded or stopped political defections to this day. Dozens of MLAs and MPs manage to find new ways to defect and destabilise working governments. The worst state, in this case, is Goa, where MLAs switch parties hourly, if required, to the highest bidder.
In 2017, the Congress finished as the single-largest party but could not form the government thanks to the brazen defections allegedly in return for big money and ministerial positions. At least ten MLAs in Goa have, since then, defected to the Bharatiya Janata Party (BJP) and the Congress’ tally of 17 has fallen to only two. We have seen a similar pattern across India, most recently in Madhya Pradesh and Karnataka. All this happens due to multiple loopholes in the current anti-defection law that enables corruption.
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Loopholes in the law
While the law states that an MLA/MP will be punished for defecting to another party, there are two major problems with it.
First, it says if a group of MLAs/MPs amount to two-thirds majority strength of the party, they are allowed to defect. This leads to mass defections and promotes corruption on absurd levels. On 25 February 2022, the High Court of Bombay in Goa gave a verdict in favour of ten Congress MLAs who defected to the BJP, noting that, according to the law, it was “a merger of parties.”
Second, the Speaker of the Assembly/Parliament usually has the final word in matters of defection. But the post of Speaker is usually highly political, and biased towards the ruling party. Therefore, it is common to see them prolong the verdict on defection for months while the turncoats end up enjoying ministership and other privileges. Usually, as per the law, any member who defects is not allowed to become a minister for at least five years.
These two loopholes in the Anti-Defection Act of 1985 are most misused by members, which therefore begs the question: Should there be a major amendment in the Act in 2022?
“Defection or the voluntary giving up of membership or taking up of anti-party activities qua any political party is a menace that gravely destabilises the democratic fabric of the Indian Republic. Unfortunately, the consequences existing today do not act as an adequate deterrent as we have seen in the example of several states, including Karnataka and Madhya Pradesh where the formed government’s mandate was midstream stolen as a result of the personal ambitions of a few MLAs,” says advocate Avishkar Singhvi who appears regularly in such matters.
Singhvi says that defection arising out of lust for power or illicit monetary gains “must be dealt with an iron fist with consequences including temporary suspension of electoral activities, heavy fines, consequential criminal action.”
Also Read: Karnataka, Goa defections show principles be damned, as long as one gets power
Prospective amendments
Here are prospective amendments that can be taken into account by both Houses of Parliament, with the view to make changes in paragraphs between two and six of the Anti-Defection Act.
First, the MLAs/MPs who wish to join another party should be made to resign and not be allowed to contest at least in one election after the change.
Second, a time frame should be stipulated in the law for the Speaker to pass their verdict on the defection. It should ideally not be more than three to four months. (For reference, the Speaker refused to reach a verdict in Goa for more than two years. Fresh elections have now been held and the defectors enjoyed ministerial berths and full control in the interim).
Third, there should be a temporary suspension of members or strict criminal action for attempts to maliciously destabilise working governments.
Fourth, perhaps the role of the Speaker can come under scrutiny and the power to decide the defection verdicts should be entirely handed over to courts to be decided in a time-bound manner. This will make the entire matter apolitical.
Fifth, doing away with the Tenth Schedule altogether and working on a new framework that discourages defection.
India is full of sharp legal luminaries and together they could advise the government with various suggestions, but in the end, defection is more a political matter than legal. Will the politicians who collect votes on an anti-corruption rhetoric come together and show the political will to end the rampant misuse of this law which promotes ugly and menacing corruption in open sight? Will our elected leaders leave a better polity for our future generations? Let’s hope they do.
Shivam Bhagat is the Spokesperson of the Delhi Pradesh Congress Committee. He tweets at @shivambhagat33. Views are personal.
(Edited by Srinjoy Dey)