- A deeper analysis of the working of the party structures and leadership style is necessary to unravel the fundamental factors that create the breeding grounds for defection.
- Political defections are one of the most ubiquitous phenomena of democratic politics in India.
- There have been recent instances of defections in the poll-bound State of West Bengal from the State’s ruling party Trinamool Congress (TMC) to the Bharatiya Janata Party (BJP) which has made steady political inroads in West Bengal, and also defections by JD (U) legislators to BJP in Arunachal Pradesh.
- With the rise of Bharatiya Janata Party as the dominant political force in Indian politics since 2014, a plethora of defections from the politically weaker Congress party and other regional parties who joined the BJP at various points of times in the last six years, have continued the trend.
- These notable defections have once again brought the issue of political defections to the forefront.
- Political defections, which denotes a change of political loyalty of a party legislator or group of legislators who switch over to another party in the inter-election years, have formidable bearing on the nature of party system and electoral representation in a democracy.
- The anathema of defections has been a prominent feature of Indian political discourse, like in many other democracies, since the commencement of Indian democratic politics.
- Rampant instances of defections across parties became a modus operandi of Indian politics resulting in incessant dislodging of democratically elected governments by rival parties through orchestrated defection, especially at the state level in India.
- The proliferation of such practices resulted in the enactment of the anti-defection law in India in 1985.
- Thereafter, the subsequent unfolding of political developments revealed that the anti-defection legislation has largely failed to stall the menace of defections and it continues to take place unabated even today.
- The idea of political defections has always involved a paradoxical ethical question in the practice of democratic politics.
- The act of sudden abandonment of the party to which the defector belonged and switching to another party (often rival parties) after winning the election under the banner of the earlier party, is largely perceived as an act of political impropriety and opportunism.
- However, it is difficult and empirically untenable to make a clear distinction between defections that are done solely for immediate political gains and ones that takes places due to ideational or ideological grounds as many times both the factors can be inextricably enmeshed with each other. However, the very act of defection can not only be a product of unethical politics.
- Rather, defections might also be perceived as instruments for upholding democratic principles of equality, accommodation and justice.
- It is often claimed that the decision to defect is driven by the urgency to defend one’s political autonomy and stand by the principles of democracy and justice.” Thus, in defection, such defectors may choose to find a “noble” cause.
- From the defector’s point of view, defection may be treated as a moral protest is aimed at restoring democracy, both within the party in question and in promoting democratic spirit in the polity.
- Such defectors, in their feat of self-righteousness, may also locate the value of justice in the act of crossing over to other parties.
- Put differently, such moves of defection are seen as desirable as though they were driven by larger concerns for justice; justice that anticipates the party bosses to treat their leaders with fairness and dignity.
- This creates an intractable ethical dilemma in electoral democracies with regard to the act of defection.
- The law of Anti Defection states that if a member parliament of member legislative assembly:
- Voluntarily gives up the membership of the party
- Votes or abstains for voting or defies any party whip
- Joins any other party
- In these cases, the member will be disqualified from the party and he will not hold the position of a nominated or an elected individual under the party. Thus he will lose his position as an MP or an MLA.
- As the process of defection has continued to foment political instability despite the anti-defection law, the focus of discussion has largely been on attempts to revamp the anti-defection legislation for making it more effective and stringent.
- ‘A legalistic approach’ has been taken “to address the problem of defection, but political issues require political solutions.”
- The approach of bringing in the law to resolve the problem of shifting political loyalties of the legislators is replete with challenges.
- It particularly points out that the legal framework focuses solely on imposing punitive measures on the defectors for changing parties, but leaves aside the political parties who should be made responsible for defection as they are the main drivers of engineering defections and destabilising elected governments ruled by their opponents.
- The nature of party organisation and the level of inner party democracy also play a pivotal role in impacting the nature of defections in political parties in India.
- It argues that parties with stronger organisational discipline where there are clearly established and transparent rules of political mobility, decision-making, election ticket distribution, witnesses lesser instances of political defection.
- This is because, in such organised and more democratic parties, the members feel more confident of having a sure career advancement within the party if they can diligently serve the party.
- On the contrary, the parties which have weaker organisation and are largely personality-centric are more susceptible to defections as decision are mostly taken based on the supreme leader’s whims with nepotistic considerations.
- As, transparent decision-making and political mobility rules are absent, the members feel insecure about their political career within the party and hence resort to defections to other parties or float new political outfits.
- Hence, the higher degree of inner-party democracy and organisational coherence disincentives the party members from defecting as they feel secured about their political career in a more democratic and organised party structure.
- On the other hand, parties which are run on the sole arbitrary diktats of the highest leader, factionalism and personality clashes within the lower rungs of leadership might more likely trigger defection for considerations of better political career of the disgruntled leaders.
Are there any exceptions under the law?
- Legislators may change their party without the risk of disqualification in certain circumstances:
- The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
- Various expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.
- This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries remuneration, and has not been excluded in a list made by the legislature).
How has the law been interpreted by the Courts while deciding on related matters?
The Supreme Court has interpreted different provisions of the law:
- The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation
- The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’.
- However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.
- In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.
- Decision of the Presiding Officer is subject to judicial review
- The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court. However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
Is there a time limit within which the Presiding Officer has to decide?
- The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea.
- Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.
- There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.
- In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House. There have also been instances where opposition members have been appointed ministers in the government while still retaining the membership of their original parties in the legislature.
- In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken away in small groups gradually to join the ruling party. In some of these cases, more than 2/3rd of the opposition has defected to the ruling party.
- In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller groups. However, it is not clear if they will still face disqualification if the Presiding Officer makes a decision after more than 2/3rd of the opposition has defected to the ruling party.
- The Telangana Speaker in 2016 allowed the merger of the TDP Legislature Party in Telangana with the ruling TRS, citing that in total, 80% of the TDP MLAs (12 out of 15) had joined the TRS at the time of taking the decision.
- In Andhra Pradesh, legislators of the main opposition party recently boycotted the entire 12-day assembly session. This boycott was in protest against the delay of over 18 months in action being taken against legislators of their party who have allegedly defected to the ruling party.
Does the anti-defection law affect the ability of legislators to make decisions?
- The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides.
- However, this law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate.
- Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
- Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue.
- It has been suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions).
Towards a cohesive approach
- It is undeniably true that the process of defection has posed challenges of political instability and electoral volatility in established democracies like India. But, sole emphasis of electoral and anti-defections law is less likely to address the problem.
- A deeper analysis of the working of the party structures and leadership style is necessary to unravel the fundamental factors that create the breeding grounds for defection apart from the immediate palpable concerns.
- Only a coherent approach towards ushering in positive reforms for improving the functioning of parties can ensure long-term solutions to such inevitable challenges in a democracy.
India’s existence as a democratic state has been a puzzle for a variety of reasons. Foremost among them is certainly gradual, but firm, changes in the articulation of the political that cannot be comprehended, let alone conceptualized, within the Euro-centric theoretical format.
Moreover, the political is constituted and reconstituted. There are three processes involved in the articulation of the political: a reasoned attention to the historical context out of which the political emanates; the specific sequence of processes; and in particular the idea that articulation of the political is not governed by a blind imitation of western history or institutions, but a self-conscious process of reflexive construction of society that rationally assesses principles from all sources and improvises institutions suitable for specific socio-economic realities.