Most modern nations claim to be democratic on account of the provision of regular political elections in their polity. This establishes the importance of the election of representatives as a prerequisite for most contemporary democracies. Elected representatives are often members of political parties. A political party is defined as a group of people who come together to contest elections and form the government upon winning the elections. However, in recent decades, many democratic governments have centered around party politics with an increment in defection.
The term defection stands for the act of abandoning allegiance, loyalty, or duty. In electoral politics, when a member of a legislature changes his or her allegiance from one political party to another in a manner that is considered illegitimate, it is labeled as defection. In India, most defectors are desirous of acquiring ministerial positions in the government, financial gain, or both. Defections are detrimental to political equilibrium due to their capability of overthrowing the ruling party. While political competition has managed to provide political leaders with an incentive to work for the welfare of the people, the practice of legislators abusing loopholes in the law for their power play is still quite prevalent.
Independent India has abundant instances of defection at both central and provincial levels. Although it existed before independence too, defection became frequent after the 1950s. As the 1960s approached and coalitions in governments became quite ubiquitous, the number of cases of defections after election results increased exponentially. In 1967, the country saw the most surprising defection by Gaya Lal as he defected thrice in a single day. The Morarji Desai-led government also fell due to defection by more than 70 MPs. Because of such events, the Anti-defection law was passed and was added to the constitution as the Tenth Schedule under the 52nd amendment in 1985 with ensuring political stability as one of the main objectives. The law provides for the disqualification of a member belonging to any political party from the House in the following scenarios:
- If the member voluntarily gives up the membership of the political party
- If the member votes against or abstains from voting in the House, contrary to the directions from the party leadership (unless two-thirds of the party decides to defect the directions or party whip)
The decision to disqualify on the grounds of defection is taken by the Presiding Officer of the House and has been subject to judicial review since 1992. The Presiding Officers of the two Houses of the parliament and all state legislative councils and assemblies are exempted from the above law. Other than these exemptions, the law also has a few exceptions. It did not penalize defection by at least a third of the number of members of the political party. This provision, however, was modified in 2003 under the 91st amendment wherein defection by at least two-thirds of the party was considered legitimate. Party mergers are also exceptions.
The Supreme Court of India has often interpreted the provisions of the law to apply to all kinds of anti-party activities. In place of a formal resignation, publicly opposing and/or criticizing the party has also led to the disqualification of members of the legislation in the past. Although the law seems like a fool-proof plan to achieve more democratic electoral politics, recent instances of political defection have exposed a multitude of shortcomings of the law that need review and emendation.
Despite the provisions, the law fails to prevent quid-pro-quo deals between the opposition and members of the ruling party. The latest cases of defection in the states of Karnataka and Madhya Pradesh demonstrate the failure of the Anti-defection law.
The law has also raised apprehensions around the infringement of the right to freedom of speech and expression under Article 19 (1). While the Supreme Court’s ruling on the Zihota Hollohan vs Zachillhu case of 1992 has cleared the air around the uncertainty, the law does impede the ability of elected members to express and act on their own opinions. Its failure in distinguishing dissent from defection has shifted the fundamentals of governance in India from discussion and debate to a game of numbers. Simultaneously, the law has indirectly handed the party whip in the hands of the ministers and enabled them to determine the vote of the majority of the legislators, resulting in a weakened control over the executive.
The law should be altered to allow legislators to defy the party whip in all votes that do not directly threaten political stability. The 170th Law Commission also stressed the importance of intra-party democracy to avoid dictatorship within political parties. The stance of the parties should be decided by the members of the party and not just the party leadership. A popular suggestion is to bar the resigning legislator from contesting in the by-elections that take place to fill the seat vacated which will obstruct quid-pro-quo deals, reducing the number of resultant defections. Recent times have been turbulent for democratic principles in the country and that is why a pragmatic anti-defection law is necessary to prevent the onset of a majoritarian and oppressive India.