With the resignation of Madhya Pradesh Chief Minister Kamal Nath yesterday after a mass resignation of 22 MLAs of his party, we are fast approaching a place where it becomes imperative for the constitutional experts to rethink the ‘Anti-Defection Law’ as an antithesis to the subterfuge of the mandate given by the electorate.
In 1967, the phrase ‘Aaya Ram Gaya Ram’ attained widespread circulation in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day!
The anti-defection law sought to prevent such political defections which may be due to the reward of office or other similar considerations.
The Tenth Schedule was inserted into the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament and state assemblies.
There are exceptions under the law: The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. In such a scenario, neither the members who decide to merge nor the ones who stay with the original party will face disqualification.
But, as illustrated yesterday in MP and earlier in Karnataka, the law proves inadequate in achieving its principal mission when the MLAs simply resign — thereby achieving the purpose of defection without defecting per se.
And yet, can any law ever stop an MLA from resigning? The query, of course, is rhetorical.
And what about instances like Maharashtra, when one part of the winning alliance breaks the alliance — an entity that does not have any constitutional validity —and joins hands with the opposing alliance to form a government? There is pretty much nothing that can be done about it constitutionally. It is, at the current juncture, merely a moral issue.
The subject of morality, however, opens another debate related to the issue.
The anti-defection law seeks to ensure the stability of the government of the day by making sure that the legislators do not switch sides (at their whims).
However, this law also restricts a legislator from voting in line with his conscience, judgment and interests of his electorate.
This, in essence, forces the members to vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
What, then, about the moral issue of doing what the constituents demand from their (individual) representatives?
There are no easy answers to these questions. Therefore, it becomes mandatory that representatives of all the stakeholders in the Indian democracy begin an urgent, earnest dialogue on the issue.