Tag: Anti-Defection Act goa

Haryana has long been decried, and rightly so, for having given the notorious ‘Aaya Ram-Gaya Ram’ phenomenon to Indian politics. However, the Haryana MLA, whose real name was Gaya Lal, and whose shenanigans birthed the phenomenon, did not know that his actions will become the leitmotif of Indian politics for many years to come.

In 1967, Gaya Lal, elected from the Hasanpur constituency in the Palwal district of Haryana, changed his party affiliation three times in one day. He moved from the Congress to the Janata Party, back to the Congress, then again to the Janata Party after nine hours, and then once again back to the Congress. At a press conference in Chandigarh, he was introduced by the then leader of the Congress party as “Gaya Lal has now become Aaya Lal”.

This expression over time evolved into the now infamous phrase, ‘Aaya Ram, Gaya Ram’, which is also used by the Indian Express in its latest editorial.

What was started by Gaya Lal in 1967 became almost a torrent. Writing in the Economic and Political Weekly in 2003, B. Venkatesh Kumar estimated that almost 50% of the 4,000 legislators elected between 1967 and 1971 subsequently defected.

Attempts to deal with the phenomenon of defections started in 1967 itself with the Lok Sabha setting up a committee headed by Y.B. Chavan which gave its report in 1968, recommending the passing of an anti-defection law. But it was finally in 1985 that the law was passed and came into effect on March 18.

Incidentally, this marked the first time when the expression “political party” was included in the constitution under the tenth schedule through the 52nd amendment – which added Article 102(2) to the constitution.

The anti-defection law worked reasonably well but over time political parties and elected politicians discovered loopholes and started exploiting them. As a result, the law was amended via the 91st amendment to the constitution in 2003. This amendment removed the provision of splits in legislative parties.

Under the original law, as a result of a ‘split’ in the original political party, one-third of the members of the legislature moved out of the party so that they were not liable to be disqualified. So the members of the legislature started defecting in groups of ‘one-thirds.’

The amended anti-defection law worked reasonably well again but just for some time before loopholes were discovered again.

The phenomenon seems to have intensified in the last few years as listed in the IE editorial – Arunachal Pradesh (2018), Karnataka (2019), Gujarat (2018-19), Madhya Pradesh (2020), West Bengal (2021), and now in Goa. Questions are now being asked as to what can be done to deal with what has correctly been called a deeper as well as a national challenge.

But before I go on to attempt an answer to that question, it is imperative to highlight another critical aspect of Indian politics that is inextricably linked to defections. And this has to do with money.

Even if the obscenely large sums of money that are bandied about are discounted, the videos of legislators enjoying the facilities of luxury resorts and private jets are indicative of the vast amounts of money apparently being involved in the defection activity. Notwithstanding whether the monies spent are accounted for or not, black or white, the fact that over Rs 10,000 crore has been pumped into the political system via totally opaque electoral bonds cannot be ignored.

Also read: Time Is Ripe to Rewrite Parts of Anti-defection Law Which Politicians Habitually Misuse

What can, and should, be done?

“Desperate times require desperate measures,” a phrase believed to have originated with a saying coined by the ancient Greek physician, Hippocrates, is important to understand in this context. A deep-seated and complex malady such as defection cannot be dealt with by simple measures like tinkering with the anti-defection law.

It is extremely important to underline that the problem of defection is not of the legislators alone. Political parties are essential and major actors in this drama of defection that now plays out repeatedly and brazenly in the political theatre of this country. Therefore, three interdependent actions are called for.

First, any legislator who defects (i) should be unseated from the legislature and his/her seat declared vacant, (ii) s/he should not be allowed to contest the fresh election that is held for this vacant seat. This may seem unduly harsh to some bleeding-heart commentators but it needs to be pointed out that defecting after getting elected as a representative of a particular political party is a very serious betrayal of the trust that voters placed in that candidate. This repeated betrayal of trust is likely to lead to a loss of confidence of voters at large in the entire electoral, and then the entire democratic, system.

The consequences of such loss of confidence in a democracy are too grim to even be imagined. That such strong action is not unwarranted is seen from the proceedings of the National Commission to Review the Working of the Constitution (NCRWC), which mentioned in the Statement of Objects and Reasons of the 91st Constitution Amendment Bill, “The NCRWC is also of the view that a defector should be penalised for his action …”

The second action is necessary to moderate one of the ill effects of the first one. ‘Penalising’ the defecting legislator, as suggested in the first action, will result in giving political parties greater power and control over legislators elected with their support. This in itself may not necessarily be undesirable under all circumstances but will not be good in the current situation of political parties in India.

To counter this, it will be necessary to make political parties demonstrably democratic in their internal functioning. Though this is anathema to all political parties, this has been repeatedly recommended by all commissions and reports for the past four decades.

Third, the finances of all political parties must be made transparent. This has also been repeatedly recommended over the last 40 years but the situation has gone from bad to worse with the introduction of the electoral bonds scheme.

Also read: Electoral Bonds Are a Threat to Indian Democracy

What is likely to happen?

While the three actions are necessary to effectively deal with the problem of defections, realistically speaking, we must accept that these are not likely to happen – at least not in a hurry. Political parties are not going to take these measures because it appears they are convinced that they are above the law of the land and no law applies to them.

This has been proved repeatedly such as when the Delhi high court held the Bharatiya Janata Party (BJP) and the Congress guilty of having violated the FCRA (Foreign Currency Regulation Act) in 2014 and directed action to be taken against them within six months of the decision. Not only was no action taken but the FCRA was amended three times, retrospectively.

Another instance is six national political parties blatantly refusing to comply with a full-bench decision of the Central Information Commission (CIC), the highest statutory authority in the country for implementing the Right to Information (RTI) Act, declaring these six parties as public authorities under the RTI Act in March 2013.

So, if political parties are not ready to take these three necessary actions, what about the last bastion of the people – the judiciary?

Rather than give an assessment, it is best to reproduce a paragraph from a Supreme Court judgment on August 10, 2021 on a related issue:

“This Court, time and again, has appealed to the lawmakers of the Country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber. However, in view of the constitutional scheme of separation of powers, though we desire that something urgently requires to be done in the matter, our hands are tied and we cannot transgress into the area reserved for the legislative arm of the State. We can only appeal to the conscience of the lawmakers and hope that they will wake up soon and carry out a major surgery for weeding out the malignancy of criminalisation in politics.”

To go back 19 years, it is the same Supreme Court that had said in 2002:

“Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest.”

The same Supreme Court which in 2002 issued “necessary directions to the Executive to subserve public interest” and woke up those who were in “deep slumber”, in 2021 found its “hands are tied”!

What more can be said?

Jagdeep S. Chhokar is a concerned citizen.