India's Anti-Defection Law: Does it serve its purpose?
Template of wholesale defections in Maharashtra can be a threat to political stability
“There are allegations of scams of nearly Rs 70,000 crores against the Nationalist Congress Party, including the Maharashtra Cooperative Bank scam, Maharashtra irrigation scam and illegal mining scam. The list is too long”, thundered India's Prime Minister Narendra Modi in Bhopal only last week, as he attacked the entire opposition and highlighted the corruption allegations against the Nationalist Congress Party (NCP) in particular.
Days later, a faction of the same NCP broke away from Sharad Pawar and joined hands with the Bharatiya Janata Party (BJP) in Maharashtra. The faction is headed by Ajit Pawar, whose name has figured in a cooperative bank scam and irrigation scam.
Infact, of the 9 NCP MLAs who took oath as ministers in the state government, 4 of them or their families are being investigated by the Enforcement Directorate or the Anti Corruption Bureau for alleged money laundering. This is what has lead to the opposition lashing out at the BJP for what they called its “washing machine’ politics
The farce that has played out in Maharashtra is not the first time the politics of opportunism has taken centre stage.
The last time we saw this happen was when the Shinde faction of the Shiv Sena broke away to join hands with the BJP last year, with MLAs switching sides overnight.
It has happened in Madhya Pradesh where Kamal Nath’s government was brought down as a chunk of Congress MLAs lead by Jyotiraditya Scindia walked away to the BJP; it happened in Karnataka when the BJP broke the ranks of the JD-S and Congress in the state and formed the government. There are countless other examples.
Which leads us to a fundamental question: What use is the Anti Defection Law when defections have not really been prevented and governments have been pulled down overnight? The law also prevents legislators from freely using their own mind based on issues.
Let me explain. The Anti Defection Law is formally known as the Tenth Schedule to the Constitution. It provides for the disqualification of an MP or MLA if they vote against the party whip on any issue. However, this rule does not apply if two-thirds of the party MPs/MLAs decide to merge with another party. The Speaker has to take the decision on disqualification.
The first problem with this law is that an MP or an MLA cannot disagree with the party line on a particular issue even if they believe it is not in the interest of their constituents or even against their basic common sense.
The MP or MLA essentially ends up putting the interests of his or her political party above all else. That in itself is antithetical to democracy. It over-centralises power with the top leadership of parties who dictate to their legislators what stand has to be taken in a state assembly or parliament.
Anti defection law explained
The second major problem with the anti defection law is that while it has prevented smaller numbers of legislators from breaking away from their parties and switching sides, it has not stopped the wholesale collapse of governments and ensured political stability.
It was brought in to curb the ‘aaya ram, gaya ram’ style of Indian politics. But it has failed. The fact that decisions on disqualification have been left to the Speaker, who is far from neutral and also part of a political party (though supposed to be neutral) means that many cases have ended up in courts over disputes since Speakers have often acted in a partisan manner or not acted at all.
Look at the Shiv Sena split last year. The Supreme Court has directed the Maharashtra assembly Speaker to rule on the breakaway Shiv Sena faction of Shinde in its May verdict but he still has not acted.
In several states, like Andhra Pradesh, Telangana and elsewhere, opposition legislators have crossed over to the other side in recent years and not had any action taken against them.
India's top court had earlier suggested that Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases quickly and impartially. That may actually be the best way forward
Its time to junk this outdated law and find new ways of ensuring that wholesale defections are stopped. For one, the power to adjudicate should not rest with the Speaker. It has not worked.
Secondly, whoever decides on the disqualification should be given a deadline such as 3 months.
There have cases where defecting MLAs became ministers while a defection petition against them has been pending before the Speaker. This should be banned till there is a decision.
A few years ago, the Supreme Court sacked a minister in Manipur when the Speaker did not decide the defection petition against him even after three years. The Apex Court observed that ideally Speakers should decide in 3 months.
India's top court had earlier suggested that Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases quickly and impartially. That may actually be the best way forward.