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Introduction:
The world has witnessed the rise and fall of many empires that once were the most powerful among others in their respective periods. It is evident from the history pages that the greed of power can turn a loyal servant into a cunning conspirator. The cause for Scindias betraying Rani Laxmi Bhai of Jhansi, Mir Sadiq betraying Tippu Sultan, and many such events is power. This tradition, which has ruined many empires still exists, but in the formal name of ‘Defection’. Black’s law dictionary defines defect/defection as “To desert from duty or obedience; esp., to leave one’s own country or group to go to or join opposing one”[1]. This term can be said as an equivalent of the term ‘Floor-Crossing’ which allows a person to change from one political party to another. This has been a major trend in recent years, which has uprooted the basic principle of democracy. The elected representatives in thirst for power switched their loyalties from time to time which is never a positive or developing sign for a country. This is not a new trend, but an old one which is also known to the older democracies of the world. Prominent political stalwarts like William Gladstone, Joseph Chamberlain, Winston Churchill also changed their parties and at one time or the other. There have been many defections in prominent countries like the United States of America, India, the United Kingdom, Russia, Australia, etc. In light of this issue, no other nation has passed any laws restricting defections, except 4 nations of South Asia i.e., Sri Lanka in 1978, India in 1985, Pakistan in 1997, and Nepal in 1997. But the implementation of these laws in all 4 countries has been proved ineffective.
When the focus turns to India, which is regarded as the world’s largest democracy, there have been many defections, which has taken down many state governments and even the central government was not an exception to this list. Modern-day politics has seen a government formed in broad daylight being destroyed the next day or the same night. The foundation of democracy is on the verge of a collapse if the defection and thirst for power take on the people elected representatives. The Indian Constitution, which was created with the primary aim of protecting the law and order of the country and to help smooth administration along with justice and stability was not in a position to counter these defections initially as the makers of the constitution never expected an unhealthy practice in the near future. It was later added to the constitution by the 52nd amendment in 1985 and is popularly known as the ’10th Schedule’. But the law has some flaws which have to be rectified to be rightfully regarded as ‘The keeper of a stable government’. Before this paper introduces the flaws, knowledge of history and the root cause for introducing such a law by amendment is very important to understand the present as said by one of the prominent American astronomers ‘Carl Sagan’[2].
Historical background:
India, which the world’s largest democracy did not have its constitution until 1950. The members of the constituent assembly who are regarded as founding fathers of the constitution never imagined that the Indian constitution which was framed considering constitutional morality would need an amendment to curb the “evil of political defections”[3]. The first president of independent India, Dr. Rajendra Prasad had given a speech that can be called as an alarm to those politicians and people. He said “If the people who are elected are capable and men of character and integrity, they would be able to make the best even from a defective constitution. If they are lacking in these, the constitution can never help the country”[4]. These were the painful words by the then-president about the importance of character an elected representative must-have. Indian politics had seen many defections right from the pre-independence period, but not as much as it saw in the year 1967. The year 1967 can be marked as a black period in India, as the birth of unethical practices of horse-trading began and led to an era of political instability. During that time, each and every political party wanted to gain power and hence, came together in the form of a coalition. Often these types of governments were heterogenic i.e. The parties that came together had opposite ideologies. These governments never lasted long; they just fell in quick succession. The reason for any ruling state government to lose its power are the dissatisfied and disgruntled legislators who were power-hungry. The legislators who changed the parties were welcomed with open arms by other parties which gave rise to an unhealthy trend of attracting an elected representative offering him a berth in the cabinet. The new government formed had many permutations and combinations[5] to protect itself from losing power.
It is a notable fact that there have been sixteen general elections and between the fourth and fifth general election, in other words between the year 1967 to 172, there were among 4000 elected representatives totally in India, in which there were almost 2000 cases of defections and counter defections. By the end of 1971, almost 50% of the legislators had changed their parties once or more for power. An example of the thirst for power by legislators- One MLA had changed his party five times to become a minister only for five days. The issue turned serious when there were series of incidents that toppled a ruling government with a comfortable majority. One such incident was the 3-time defection by MLA Gaya Lal, elected from the state of Haryana, who had defected 3 times in one day for power. The first step to tackle this was taken in the year 1968. A high-level committee was formed under the chairmanship of the then Home minister Y.B. Chauhan, who had described the defection as a “national malady”[6]. But the report of this committee was not enforced. In the year 1979, the first non-congress government under the Prime Ministership of Morarji Desai go destroyed due to group defection i.e., around 80 odd members switched their sides. This was not a full stop rather was a start for the downfall of state governments. The states of Karnataka, Bihar, Andra Pradesh, Uttar Pradesh, etc saw the rise and fall of governments. Considering all these incidents and rising public opinion, in the year 1985, the then Prime Minister Rajiv Gandhi placed a bill for restricting such acts in both Lok Sabha and Rajya Sabha and this was enforced as the law on 15th February 1985. But the implementation of these laws never stopped the defections but increased them from a single person to a group.
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Constitutionality of the Act:
As soon as the general election results were declared in the year 1984, the then president Shri. Zail Singh, in his address to both houses of the parliament, informed that the government under the prime ministership of Shri. Rajiv Gandhi intended to introduce a bill that would restrict the evil political practice of defections. On 24th January 1985, the anti-defection law was added to the constitution through the 52nd constitutional amendment. But as soon as it was proposed in the parliament, many objections were raised concerning the constitutionality of this law. But the bill got a majority and was passed even after considering the opposition. As soon as it became a law, the anti-defection law was brought before the court. The constitutionality of the act was challenged citing violation of fundamental rights and hence disturbing the basic structure of the Indian Constitution, the words defection, as well as dissent, had different meanings and the newly made law does not define this term specifically, and many more contentions. The high court of Punjab and Haryana had struck down the rules and declared that Paragraph 7 of the impugned law violated article 32 by barring the jurisdiction of courts and giving the presiding officer all the power. But when this was taken for appeal as per the request of the central government, each and every contention in different high courts were transferred to the Supreme court and all were connected. The Apex court, in subsequent judgments, passed the orders which deemed fit as per the contentions. Some of the landmark judgments are as follows:
- Kihoto-Hollohan v. Zachilhu[7]: The apex court in this judgment set aside the judgment passed by the High court of Punjab and Haryana which struck down the act citing that paragraph 7 violates the fundamental right to legal remedies. The court declared that Paragraph 7 can stand independently and vice versa and hence the act excluding paragraph 7 is valid. Paragraph 2 of the said act does not violate the constitution and hence is valid. Also, the question with paragraph 7 can be declared unsound and is rejected. Paragraph 6(1) and 6(2) that gives the power to the speaker to decide in this matter to curb the evil political defection is valid. This gave the anti-defection a certificate that declared the law not violating the constitution.
- Ravi S Naik v. Union of India[8]: The apex court in this judgment had declared that the burden of proving the requirements mentioned under paragraph 2 of the 10th schedule is on the member who has incurred disqualification and also, the burden is on the member under paragraph 3, is o the member who claimed the split in the original party and also, it has laid down certain requirements to call an act as split. The court also ruled that the anti-defection laws were procedural in nature and is immune from judicial review if there are any violations of law. The judicial review can only happen in case of non-compliance with natural justice, mala fides, breaches of constitutional mandates.
- G. Viswanathan v. Speaker, Tamil Nadu Legislative Assembly[9]: The apex court through this judgment clearly laid down the law that an elected member shall belong to a party from which he contested for elections. Even if the party expels him, he would not cease to be the member of the house he has been elected for by the people. If an elected representative switches his loyalty to another part and moves in, then he is certainly disqualified on grounds of voluntary give up by the member.
There are many other cases like Jagadambika Pal v. Union of India[10], V. Mahachandra prasad Singh v. Chairman, Bihar Legislature council[11], etc which can be called a landmark judgment for the anti-defection law.
Conclusion:
As said earlier the aim of implementing the anti-defection laws was to prevent the evil practice of political defections. But the result of implementation was not expected. The defections started to increase even after the implementation of these laws. The elected members started to take advantage of lacunas in the said law and started to defect in groups rather than individuals. The recent examples of group defections evidently bring forward the defect in anti-defection law. The defection of 17 MLS’s in Karnataka led to the downfall of the coalition government formed by Janata dal (secular) and Congress, the defection of MLS’s in Madhya Pradesh led to the downfall of Kamalnath led Congress government, an attempt of bringing down the Ashok Gehlot led Congress government in Rajasthan can be seen as prominent examples which do suffice to agree that the anti-defection law hasn’t brought any discipline among the power-thirsty politicians. There is an issue with regard to the power of the speaker and the authority of the judiciary to intervene in the middle when a constitutional authority is exercising the power granted under the 10th Schedule. The flaws of the law need to be rectified and if not, in the near future, there may be a situation where the general elections that are held five years once, have to be held daily. Although the law was a good proposal for bringing stabilized administration and government, the law seems ineffective.
[1] Black’s Law Dictionary
[2] “You have to know the past to understand the present”- said by Carl Sagan
[3] As stated in the Statement of Objections and reasons to amend the constitution (52nd Amendment) available at: https://legislative.gov.in/constitution-fifty-second-amendment-act-1985
[4] Concluding address in the constituent assembly- https://indialawyers.wordpress.com/2010/01/24/dr-rajendra-prasad-speech-as-president-of-constituent-assembly-the-day-the-constitution-of-india-was-passed/
[5] Subhash C. Kashyap, The Politics of Power, New Delhi, 1974
[6] Subhash C. Kashyap’s Anti Defection Law and Parliamentary Privileges, Universal Law Publication, , New Delhi, 3rd edition
[7] AIR (1993) SC 412
[8] AIR (1994) SC 1558
[9] AIR (1996) SC 1060
[10] JT 1998 (4) SC 319
[11] AIR (2005) SC 69
Author: Karthik Surya MR, 1st year BA LLB., Christ University, Bangalore
Editor: Kanishka Vaish, Senior Editor, LexLife India.
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