Aya Ram Gaya Ram…

This phrase is generally used to describe the legislators frequently changing their allegiance to political parties. As per one of the estimates, during the late 1960s to early 1970s, almost half of the legislators at Central parliament and various state legislative bodies ie the Vidhan Sabha had changed their parties. After the 1967 elections 142 MPs and 1900 MLAs had changed their sides or political parties. This kind of unstable allegiance matrix of the members of the Central and state legislative bodies created a fissure in the public faith towards the electoral polity. This type of practice among the elected representatives of the people is colloquially known as Horse trading. In UK this is also known as floor crossing, while in Nigeria this practice is known as carpet crossing. The persons in any political party susceptible to such side changing are known as turncoats or Fence sitters or Defectors. Recent side changing by Jyotiraditya Scindia to BJP brought the discussion of anti-detection back into public attention.

India has a schedule in its constitution to deal with the issue of defection. Other countries also have constitutional provisions to prevent defections. Examples include Section 40 of Kenyan constitution, Article 70 of Bangladesh constitution, Articles 46 & 48 of Singapore constitution, Section 47 of South African constitution and others. In most of the cases the legislators who defect from one party to another stand to lose their seats in the deliberative assembly of the particular country.

In the year 1985, under the aegis of the Rajiv Gandhi government, the 52nd Amendment of Indian constitution Act was passed which amended the Articles 101, 102, 190 & 191, and the tenth schedule was inserted in the Constitution. There are certain rules under the inserted tenth schedule, like if after any action being taken by any legislator which is tantamount to defection, the parent political party condones the action within 15 days, then there is exemption from disqualification.

There are relaxations in case of any mergers between the political parties. Some critics of the anti-defection law argue against the extreme concentration of powers in the hands of the speaker of the respective house. K.P. Unnikrishnan, member of the INC had once said that making speaker as the only repository of powers in this context allows him or her to play havoc in the house.

Interestingly, there have been two unique speakers of the Lok sabha in the political history of India, Rabi Ray (1991) and Shivraj Patil (1993) who had themselves expressed doubts on the capability of the speaker in dealing with complex scenarios in cases of political defections. In the Kihoto Hollohan vs Zacchilu case the primacy of speaker in the anti-defection system was questioned. This case decided in the favour of the centrality of the roles of speakers in the parliamentary democratic setup.

One of the contentious issues in the anti-defection law under the tenth schedule is rule 7 which provides immunity from judicial review in cases related to disqualification including in cases related to anti-defection. This shows that the passage of the anti-defection law (1985) has in a way made the anti-defection regime more cumbersome and potentially out of reach of Judicial intervention. But there have been instances where the supreme court had indeed intervened, like when it struck down the order passed by the speaker of Goa Assembly to disqualify two members of the legislative assembly. This shows that the supreme court had played its role of the final interpreter and guardian of the Indian constitution.

There have been many cases which have tried to dissect out various aspects of defection. For example, what happens to a legislator when he or she resigns from a particular political party. Does the whip of the party remain effective on him? In G Vishwathan vs Speaker, Tamil Nadu legislative assembly case, it was decided that in case a member is expelled from the party he remains as an unattached member of the old party. If he or she joins another party it is considered that he or she has voluntarily given up the membership of the old political party.

In 2017, a bench of justices Dipak Mishra and AM Khanwilkar had asserted that the expelled party member remains under the whip of the parent party in response to a PIL filed by the then expelled Samajwadi party MP Amar Singh. Another important case was Rajendra Singh Rana vs Swami prasad Maurya and others in which it was decided that the letter by an elected party member to the governor to call upon the leader of the opposing party to form government would itself be adjudged as voluntarily giving up the membership of the old party.

This case defined as to what can be treated as the definitive signal of a member defecting to another party. Such cases and their associated decisions have helped in setting up a parameter under which defections can be discouraged. Dinesh Goswami committee of 1998, the Commission to review constitution 2002 and the law commission of 2015 had recommended that the disqualification cases pertaining to the defection be decided by the president and the governor on the advice of election commission at the Union and the state levels respectively. Another important recommendation was given by the 170th Law commission report of 1999, which said that the provisions which exempted the splits and mergers from disqualifications be deleted. It also recommended that the pre poll electoral front alliance be treated as political parties under the anti-defection law.

There have been critics of the anti-defection law brought in 1985. But there have been measures which have tried to augment the efforts to manage defections. The 91st constitutional amendment act of 2003 made it mandatory for those switching sides to resign from their legislative roles. All these efforts seem to be dysfunctional when one analyses what boiled down in the Manipur legislative assembly after the march 2017 election. The INC won 28 seats, just three short of clean majority. BJP with just 21 seats formed government on being invited by the governor. This became a repetitive narrative in the Karnataka election of 2018 and Maharashtra election of 2019. This shows that the anti-defection law has not been able to achieve the envisioned idea.

Though the tenth schedule was brought about to curb the “aya ram gaya ram” tendency, there have been limited success, nonetheless. In some or the other way the Supreme court has come to save the day in case any contentious issue pops up in this large context.