The end of democracy in the US will be perfectly democratic,” wrote Andrew Yang and Stephen Marche in their 2023 political novel The Last Election. Broadly, it shows the vulnerability of electoral democracy to political manipulations. Such aberrations pose serious threats to the future of American democracy.
In India, the menace manifested even prior to independence, in the legislative bodies designed by the British. The post-independence experience shows that defections often occur due to political or material ambitions rather than ideological differences or varying policy perspectives. To fight this betrayal, the 10th Schedule was introduced in the Constitution in 1985 containing “provisions as to disqualification on ground of defection”. But as a device to curb defection, it has turned into a failed experiment.
Paragraph 2 of the schedule says that voluntary abandonment of membership or abstention from voting in disregard to directions of the party under whose banner one was elected will result in disqualification. However, paragraph 4 says that the merger of political parties will not result in disqualification. Those opposing the merger can sit as a separate group. Paragraph 4(2) clarifies that at least two-thirds of the members should agree for the merger to make it lawful.
Recently, when Raghav Chadha and six other elected members of the Rajya Sabha opted to switch to the BJP, they purportedly relied on this constitutional indulgence—which could be problematic, at least going by the constitutional text. If the political party has not opted for a merger, whether a group can claim the benefit of being two-thirds of the legislative party’s members to avoid action is an issue requiring judicial resolution.
Again, according to paragraph 5 of the 10th Schedule, the decision on disqualification must be taken by the Chairperson or Speaker of the House. As in the case of Governors, there is a constitutional assumption regarding their impartiality, which is an illusion going by India’s experience. Their decisions are often neither fair nor judicious. Also, depending upon political inclinations, Speakers can either expedite the decision or delay it indefinitely. Given such a situation, it is time to think about an independent judicial tribunal to deal with such issues.
The 10th Schedule does not present any time limit for the Speaker’s decision. This has led to judicial fixation of a limit, as the Supreme Court did in Keisham Meghachandra Singh (2020). The Speaker or Chairperson’s decision is also amenable to judicial review now. In Kihoto Hollohan (1992), the Supreme Court held that paragraph 7 of the schedule, which bars the court’s jurisdiction, is unconstitutional. Yet, the time it could take for the judicial process to conclude is a matter of concern. The adverse impact of defection—such as regime change—often occurs while the process is dragging on.
The Kihoto Hollohan majority judgement’s optimism about the adequacy and efficacy of the 10th Schedule requires reconsideration. Though concerns were raised in the case about the presumed impartiality of Speakers, the majority on the bench was not prepared to accept it. This negates the lessons emanating from Speakers’ conduct in an era of turncoats.
Political leaders have also used the device of resignation to topple a government and escape the ambit of the 10th Schedule. Resignation cannot be termed as defection. But in each situation, it serves to reduce a regime’s majority. This, too, is a situation that the law is unable to tackle.
In an electoral system based on political parties, defections are not only intrinsically unethical, but also lead to unethical consequences. As researchers Ishan Mhapsekar and Ryan Joseph of Jindal Global Law School have written in NLIU Law Review, “When ministers defect in the hopes of greater political power and to bring down a government, the defectors are rewarded for disloyalty, while the loyalists are taxed by loss of office.”
Group resignations from state legislative bodies have been effectively used to sabotage governments. The Congress government in Madhya Pradesh fell in 2020 when 22 legislators led by Jyotiraditya Scindia chose to resign; many of those who switched sides got re-elected. In 2019, the Congress-Janata Dal (Secular) coalition in Karnataka faced mass resignations of the ruling combine’s MLAs that torpedoed the government.
Equally concerning is voters’ approach to defection. One doubts if voters can mark their protest on such issues when they exercise their franchise.
Now, the promulgation of an anti-defection law is not an easy task. Most advanced democracies do not have such enactments. Sometimes, democratic maturity acts as a political check against defection. Yet, the issue of floor-crossing is not alien to modern constitutions. And so there are anti-defection laws in South Africa, Israel, New Zealand and Pakistan.
One might ask why India chose to make an inadequate, imperfect and often ineffective constitutional amendment to tackle the issue. But then, if it was made by way of a statute, it could have been altered from time to time by those in power to suit their political requirements. In South Africa, Israel and Pakistan, regimes have been criticised for altering anti-defection laws to meet immediate political targets. Given that statutory amendment would be more vulnerable to judicial review than a constitutional amendment, the decision to add the 10th Schedule with corresponding changes in other provisions of the Constitution cannot be faulted.
Yet, as demonstrated by India’s experience, the schedule has not acted as an adequate device to curb defection. Though it was well intended, it happened to be an inadequate supplement to a Constitution that did not deal in detail with the inner and outer dynamism of political parties.
Therefore, the 10th Schedule needs to be substituted with a comprehensive constitutional amendment that meets all the possible challenges. After identifying the deficits in the schedule, we need to re-imagine our anti-defection law. It would require constitutional will and an imaginative legislative exercise. This is difficult, but not an impossible task.
Legislative statesmanship occurs only very rarely in populist regimes of our times. But its significance is only to be underlined in our deliberations for a more legitimate and fairer polity.
Kaleeswaram Raj | Lawyer, Supreme Court of India
(Views are personal)
(kaleeswaramraj@gmail.com)
