Defecating the Defection Law — A Tale of Strategic Resignations

Introduction

India got its freedom in 1947, and thereafter got its Constitution in 1949, which is a sacred and sacrosanct document and is also the longest written Constitution in the world. As our independent nation flourished and evolved, so did its democracy, which also highlighted the short-comings of the Constitution from time to time. To deal with such shortcomings, Parliament stood up to its responsibility and amended the Constitution from time to time.

In Democracy, election of representatives from constituencies is one of the most important processes, and so does presence of political parties. Various political parties set-up their candidates from different constituencies for elections of members to LokSabha/Legislative Assembly. These candidates get elected mostly, rather than Independent candidates.

However, party politics has been severely undermined by the politics of Aaya Rams and Gaya Rams. It has been time and again experienced that upon being elected to the legislature, lawmakers switch parties and cause political instability – often enticed by the rival party with plum public posts or, simply, money. The earliest example was from Haryana where in 1967, one Gaya Lal switched parties three times within the same day. This is in no way less than a fraud with the electors, who elect representative for a period of 5 years and is also a fraud with the political party under whose symbol such candidate contested and got elected.

Parliament though brought anti-defection law and amended it also from time to time, but people have made such laws redundant by their cunning methods.

Our country is facing similar problem even today. We have seen that in many States like Karnataka and Madhya Pradesh, ruling party MLAs have begun to resign in strategic numbers and join rival political parties for extraneous considerations best known to them. Thereby leading to reduction in the number of simple majority giving the opposition party /coalition (otherwise in minority) a shot at forming the government by demanding a floor test. Recently, it is being seen that the same strategy is being used to give advantage to the parties in getting more Members of Parliament elected to Rajya Sabha (Council of States). Thus, in the present article, I’ve made an attempt to examine the history of Constitutional amendments to deal with the malpractice of defection, how successful have they been and what future course is required in wake of current practices of horse trading.

Historical Development

Prior to 1974, Article 190(3)(b) of the Constitution of India prescribed that seat of a member of Legislative Assembly shall become vacant, if he resigns by writing to the Speaker. Thus, the Speaker had no control over the same and the seat used to become vacant at the drop of a hat.

The instances of misuse of this provision led to the introduction of the Constitution (33rd Amendment) Act, 1974[1]. The Statement of Objects and Reasons of such 33rd Amendment was as under:

“Articles 101(3)(b) and 190(3)(b) of the Constitution permit a member of either House of Parliament or a member of a House of the Legislature of a State to resign his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be. In the recent past, there have been instances where coercive measures have been resorted to for compelling members of a Legislative Assembly to resign their membership. If this is not checked, it might become difficult for Legislatures to function in accordance with the provisions of the Constitution. It is, therefore proposed to amend the above two articles to impose a requirement as to acceptance of the resignation by the Speaker or the Chairman and to provide that the resignation shall not be accepted by the Speaker or the Chairman if he is satisfied after making such inquiry as he thinks fit that the resignation is not voluntary or genuine.”

(emphasis supplied)

Thus, amendment was brought to place a check on the genuineness of the resignation. Now the seat was to be vacated only upon the acceptance of resignation by the Speaker with a view that he/she shall apply his/her mind to satisfy himself/herself that such resignation is voluntary.

To stop MLAs to join the opposition parties or defying the party whip during voting in the house without tendering actual resignation, the Constitution (52nd Amendment) Act, 1985[2], was brought to deal with the menace of such open defection, with the following Statement of Objects and Reasons:

“1.The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the then current session of Parliament an anti-defection Bill.

  1. The Bill seeks to amend the Constitution to provide that an elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and a nominated member of Parliament or a State Legislature who is a member of a political party at the time he takes his seat or who becomes a member of a political party within six months after he takes his seat, would be disqualified on the ground of defection if he voluntarily relinquishes his membership of such political party or votes or abstains from voting in such House contrary to any direction of such party or is expelled from such party. An independent member of Parliament or a State Legislature shall also be disqualified if he joins any political party after his election. A nominated member of Parliament or a State Legislature who is not a member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months from the date on which he takes his seat shall be disqualified if he joins any political party after the expiry of the said period of six months. The Bill also makes suitable provisions with respect to splits in, and mergers of, political parties. A special provision has been included in the Bill to enable a person who has been elected as the presiding officer of a House to sever his connections with his political party. The question as to whether a member of a House of Parliament or State Legislature has become subject to the proposed disqualification will be determined by the presiding officer of the House; where the question is with reference to the presiding officer himself, it will be decided by a member of the House elected by the House in that behalf.” (emphasis supplied)

In the aforesaid manner, Article 191(2) along with the  Tenth Schedule were inserted in the Constitution of India to deal with the extra-ordinary situations of destabilising the “constitutionally elected governments” and attacking the democracy, by resorting to unfair means.

It is clear from both the above Constitutional Amendments that the Indian democracy and Constitution had been evolving on the basis of past experiences and challenges coming up. After the 52nd Constitutional Amendment, no other Constitutional Amendment has been done to deal with the new challenges which kept on coming up in this regard.

Current Scenario

In the last one decade, new challenges have been coming up. For the lure of offices and other considerations best known to all, MLAs have started hopping on to a flight to some remote resort where they are kept under tight security even from their family members and then made to tender resignations “voluntarily”. These strategic resignations are to dodge the Tenth Schedule, which otherwise would have been attracted in case of group absenteeism. However, such absenteeism does not attract the Tenth Schedule in case of elections of Rajya Sabha. Such a situation may also give birth to infamous practice of convenient abductions or political murders as seen in history across jurisdictions, to force absenteeism.

It is interesting to note that such MLAs who resign have contested Bye-Elections on the ticket of the party which benefits from the resignation from their earlier affiliation. In fact, a lot of such resigning MLAs are awarded requisite ministries in the newly formed government, sometimes immediately and sometimes if they successfully win the bye-election as its candidate. Such practices have made resignation a powerful tool for elected legislators to negotiate quid-pro-quo deals within their party and if the need be, with the party in opposition which is already hungry for power.

Such practices mock the current Constitutional democratic set up and ridicule the public mandate. They seriously tend to commit a fraud by bringing in a lost party to power, as against the wishes of the governed. One might argue that there is nothing wrong with such practices, because if the rebel MLA is re-elected in the bye-election under a different party, it would be an automated approval of the defection. But this is a fallacious argument. Rebel MLA already having been a part of a successful campaign has a clear head start as against any other candidate which will be set up by the defected party for that constituency. Therefore, defection in the first place by way of resignation is a fraud on the trust of the public which puts such a candidate in power by virtue of his affiliation to a particular political party.

Critics may also argue that people vote for the candidate, based on his individual merits as public figure rather than on the basis of the political party to which he/she is a member of. However this holds good only in theory. It is well known that in every contested election a symbol is allotted to every contesting candidate in accordance with the provisions of the Election Symbols (Reservation and Allotment) Order, 1968. Such symbols may be either reserved or free. ‘Reserved Symbol’ is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party and ‘Free Symbol’ is a symbol for candidates other than those setup by the recognised political party. Recognised political party means either a National Party or a State Party. A detailed procedure is provided in law for recognition of a National and State Party. Thus, a person gets to contest election under the ‘Reserved Symbol’ only when he is setup as a candidate of ‘Recognised Party’. It is thus clear from the above that a candidate setup by recognised party gets the privilege of contesting election under the symbol of a recognised party.

A parliamentary democracy, like that of India, functions on the basis of the party system.  The Tenth Schedule to the Constitution recognises the importance of the political parties in our democratic set up.  It is open for Parliament to provide that the members of the political party elected on a party ticket, act according to the decisions made by the party and not against it.

It is indeed a privilege, for a candidate set up by a recognised political party, that he gets votes based on the goodwill of the political party, including the goodwill of star campaigners of the party who solicited votes for that candidate. The political party incurs huge expenditures in the said election campaigns for the candidate. The candidate also benefits from the ideology of the political parties manifested in the election manifesto because it also influences people to vote. Hence, it is not just the candidate who is voted for, but it is the political party who is also put to vote of electors. If the contrary were to be believed there would not be any difference in the success rate between the candidates setup by the  recognised political parties and an Independent candidates.

In the history of parliamentary elections in India prior to 2019 Lok Sabha Elections, a total of 44,962 independents have contested polls but only 222 of them have won to become Member of Parliament (MP) rendering a mere 0.49% chance of success.[3] In the first election in 1951, where 37 Independent Candidates won, the number has fallen down to 3 in the 2014 elections.[4] These ever declining figures even prompted the Election Commission and Law Commission to recommend that Independent Candidates must be debarred from contesting elections altogether.[5]

Therefore it is clear that people do vote for the symbol of political parties and there is hardly any doubt as to the vital role political parties play in the success of any candidate from any constituency. The Supreme Court has also opined that political parties are sine qua non of parliamentary democracy.[6]

Hence, a recognised political party is at a higher pedestal than a candidate, due to which the claim of a recognised political party must be recognised upon the seat concerned of MLA, even in case of vacancy of seat for any reason (resignation, death, etc), until the results of the bye-elections are declared.

Conclusion

The current situations as observed in the case of Karnataka, Madhya Pradesh and Rajasthan, tell us a tale of how parties have circumvented the defection law to put the ruling party in an unfair position. The duly elected Governments in the respective States were subjected to a vote of confidence which they were destined to lose, due to the prior resignations in strategic numbers enticed by personal considerations. It also gives undue advantage in Rajya Sabha Elections also like in Gujarat and Madhya Pradesh. Such practices can set up a trend which may prove to be fatal to the concept of federalism in this country wherein an all powerful Central Government can deploy its resources to help their party in the States where other parties have formed the Governments by orchestrating a similar fall.

Therefore to remedy the situation we suggest that if a duly elected Government comes in minority, upon vacancy of seats due to resignations or death of MLAs then also such Government shall be permitted to continue until the Bye-Elections are completed upon such seats. In other words, the party on whose ticket such resignee/dead MLA won the election should have a claim over such seat.  This can be achieved in the following manner:

  • The house strength and majority mark must be deemed to be unchanged i.e. not reduced by the number of vacancies, till the results of bye-elections to such vacant seats are declared.
  • The vacant seat must be counted as notional seat of the party on whose ticket such resignee/dead MLA won the election, till the results of bye-elections to such vacant seats are declared.
  • The Election to the Council of State (Rajya Sabha) be deferred, till the results of bye-elections to such vacant seats are declared, if the strategic number of vacant seats has bearing on the result of election to the Council of States.

This will ensure that no opposition party will gain any advantage from inducing such strategic resignations, in forming the Government or taking undue advantage in election like Member of Council of State (Rajya Sabha) but at the same time, the legitimate chance of opposition party to form the Government will not be hampered but only delayed by 6 months. It will also reinforce the true spirit of a democracy that ultimately it is the people who will decide the fate of any Government in bye-elections.

If the resignee MLA actually won the preceding elections on his independent merit, he will have a fair shot of getting re-elected in the by-elections either independently or on the ticket of different party. Similarly if the opposition party manages to win the bye-elections with numbers adequate to establish majority, they will get their due shot at forming the government in accordance with the public mandate. We urge Parliament and the polity of our country to consider, debate and bring an amendment to give effect to these proposed changes in law, as it will also ensure that the strategic resignations of today do not turn into mysterious abductions or deaths of tomorrow.

Further to support our suggestion, the time period to conduct such by-elections may be reduced from 6 months to 3 months. This will ensure that the legal fiction suggested operates only to achieve its purpose and not become a tool for further abuse.


*Former Additional Advocate General of Madhya Pradesh and  Practicing Advocate in High Court of Madhya Pradesh.

** Final year student pursuing BA LLB (Hons.) from National Law Institute University Bhopal.

[1] Constitution (33rd Amendment) Act, 1974

[2] Constitution (52nd Amendment) Act, 1985

[3] https://www.news18.com/news/politics/since-the-1st-elections-only-0-49-of-independent-candidates-have-managed-to-enter-lok-sabha-2047541.html

[4] https://factly.in/law-commission-india-recommending-independent-candidates-debarred-from-contesting-elections/

[5] Law Commission of India, Government of India, Report No. 255 on Electoral Reforms, 2015

[6] Kuldip Nayyar v. Union of India, (2006) 7 SCC 1.

2 comments

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    Very nice and timely article. All right thinking citizens of this country feel that it is need of the hour to see that loopholes in the anti defection law should be removed . Hope an trust that this article will start the debate in right direction.

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