Defections cock a snook at democracy

The political crisis in Maharashtra over the defection of MLAs has brought many questions to the fore. In the midst of extensive media coverage and legal opinion weighed in by experts as to what possibly could be the recourse and which party would make it to power, the discourse denies and invisibilises two key aspects — the tenets of democracy and the paramountcy of citizens. In the present scenario, individuals have taken a central place and the institution of democracy and citizens have been side-lined. There appears to exist two different realities: one of legal fiction attempting to regulate defection and the political realities.

The anti-defection law is based on the idea that political defections weaken democratic discourse in the country by making democratically elected governments unstable, often at times leading to mid-term elections, wastage of public money and also weakening the trust of citizens in democracy. Conversely, what good is a representative of citizens, through which citizens are to rule, who switches political loyalties for individual gains putting aside constitutional ideals and citizen’s interests to peril? Thus, the anti-defection law in effect intends to put democratic and constitutional ideals, and the citizen’s stake at the heart of decision-making discourse of legislators.

Initially, the Constitution did not contain a provision regarding political defection in the country. The framers of the Constitution focused a lot on having a check over other institutions of democracy, and not over the legislators. Perhaps, the idea was founded in the uprightness in public life of political leaders. This took a turn for the worse and the country saw a spate of political defections where, after the 1967 general elections, several state governments were toppled.

In 1985, vide the 52nd constitutional amendment, the anti-defection law was introduced in the country. So far as it relates to the present context, it provided that if not less than one-third defecting legislators join another party, they shall stand disqualified from their membership.

This numerical requirement was increased to two-thirds vide the 91st constitutional amendment, 2003. The decision on defection was to be made by the presiding officer of the House and it was not subject to judicial review.

The Supreme Court, in Kihoto Hollohan v. Zachillu, held that the decision of the presiding officer of the House was in fact subject to judicial review. Thus, the SC indirectly became the watchdog of the defection process. This role, however, has also gained political undertones whereby several commentators have pointed out a not-so-neutral constitutional role played. Additionally, there have been significant delays in arriving at a legal solution to a political problem.

Not belying the jugaad spirit, legislators have found a way out of the present anti-defection law as well. They change their political loyalties at the incentives of high office and other gains. Pursuant to defection, fresh elections are held in such constituencies where they mostly get re-elected, and nullify the operation of the anti-defection law.

It is also notable that despite such an act, the public appeal of such politicians does not seem to take a dip. They win bypolls with public support. A change in voting behaviour, thus, is also needed whereby the public should not facilitate their victory. It cannot be the case where the public complaints against the loopholes in the
anti-defection law and at the very same time go on to
elect the very same defecting politicians.

On multiple occasions, the conduct of the presiding officer of the House has also been questioned. There have been allegations that they act in a partisan manner. In the present case, the Deputy Speaker is alleged to have taken a party line in discharging the duties of a constitutional office. This, thus, points out the stark difference between what the law intended to be and what it has led to in practice.

The way forward

The law should reorient itself in strengthening democracy and correcting one of its key actors — legislators. As has been previously held by the Supreme Court, in the place of the presiding officer of the House, an independent tribunal should be set up to decide defection matters.

This would not only ensure that defections are decided in an impartial manner but also provide a speedy resolution of the case. Additionally, the behaviour of legislators needs to be checked by making them subject to a minimum six-year ban from contesting elections if they are disqualified, so that a detour through bypolls cannot be resorted to.

To complement these laws, a change in behaviour of citizens is also needed so that the defected legislators are not re-elected. The media should also refrain from projecting such people as having played a masterstroke.

This would go a long way in strengthening the trust of citizens in democracy, empower them and make democratic institutions more resilient against the shocks that political actors subject it to.

(The writer is International Editor at Cambridge Law Review and BA LLB (Hons), NLSIU, Bengaluru)