Defections

Are defections in news again?

In the run up to the Rajya Sabha elections late in June 2020, defections are taking place as a part of political rivalry.

In March 2020, government in Madhya Pradesh fell due to defections. Earlier it happened in Karnataka, Goa and Manipur. It gives the impression that there is no need to contest election and post-election management is enough.

Defections create instability; indicate corruption at the highest places; institutionalize immorality; and let down the electorate by betraying representative faith and responsibility. It is not a recent phenomenon.

Subhash Kashyap, former secretary-general of the seventh Lok Sabha and an expert in constitutional practices, recalled that in the 1967-71 period, 142 defections took place in Parliament. As many as 1,969 defections took place in assemblies, causing the downfall of 32 state governments.

What is the law to deter and punish defections?

The anti-defection law in India, also known as the Tenth Schedule to the Indian Constitution was made in 1985 as the 52nd Constitution Amendment Act, was enacted to address the perceived problem of instability and immorality caused by democratically elected legislators .Defections are a betrayal of the people's mandate .

Parliament in 2003 passed the Ninety-first Amendment to the Constitution of India which strengthened the Act.

What are the main issues?

The issues essentially are two:

1. Role of Speaker; and
2. Resignation vs disqualification

Supreme Court, in Keisham Megha chandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly(2020), addressed two important problematic areas in the law

1. It asserted that courts have the power to fix a time-frame within which the Speaker must decide disqualification petitions.Speaker cannot sit on a disqualification petition indefinitely and need to decide within a reasonable time.In the absence of any exceptional circumstances, it should be a period of three months.

2. It suggested that Parliament should amend the Constitution to transfer the power of Speaker/Chairman with respect to adjudicating disqualification matters to an alternative quasi-judicial authority because Speaker/Chairperson continues to belong to a particular political party either de jure or de facto.

Are there any other issues?

The Supreme Court in its judgment in Shrimanth Balasaheb Patil v Hon’ble Speaker, Karnataka Legislative Assembly and others( 2019) ruled on another weakness in the anti defection law. Legislators chose to resign before being disqualified for defection. If disqualified, they would be ineligible for public office. If they resign, they are eligible for public office. The court made it clear that a legislator could not use resignation as a ploy to pre-empt disqualification. If disqualification proceedings are dropped on resignation, any member who is on the verge of being disqualified would immediately resign.

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