Author: Neha Kachhawaha, IV year of B.B.A.,LL.B. from B.M. Law College
ABSTRACT
A concept which has been developed since back in 19th century in western countries, where people use to buy and sell horses, also termed as ‘horse dealing’. It can also be defined as negotiation which is accompanied by smart bargaining and reciprocal concessions. Lately, this term was widely used in western countries in the arena of their political system, from where it came out and prompted many other political systems, where India was one of them. The expression was coined in 1960s in Haryana where it witnessed excessive horse trading and counter horse trading, which took place in many areas of the state. This event came out to be one of the major reasons behind the term ‘Aaya Ram Gaya Ram’ and also resulting in increased number of occasions where members of the parties were withdrawing themselves in the lure of their monetary purpose. Because of this, it left a great impact on the economic condition of India. This led to the enactment of Defection Law which was initiated by the Indian Congress which was the ruling party at that point of time. Since then, there has been major amendments in the act, which has barred the members to leave the party without 2/3rd of its majority. One on the most important aim of this Act was to bring a political stability in the country through such limitations. But apparently, it looks like it had turned out to be something contradictory in this contemporary scenario, where the members and the leaders of politically ruling parties are more concerned about how can they bring their rival down or take monetary benefitson account of their powers. Least of them are actually concerned about the GDP, per capita income, poverty, hunger, public’s health, safety and education etc... and to make these issues as a central concern of every political party’s aim, we need more strong reforms and modifications in not only laws of defection but in every other arena concerned to it.
KEYWORDS: Defection, Party, Members, Disqualification, Violation
INTRODUCTION
This concept is not novel but something which is been practiced since the gilded agean era which extended from 1870 to 1900, this era was period of rapid economic growth both for northern and western United States. The term came into practice around 1820 which simply means buying and selling of horses, also defined as ‘horse dealing’. Kabul was one of the key hubs for horse trading.
This term is nowadays in practice in the arena of politics, where it has been developed and has come to refer explicitly to political vote trading which in most common sense known as logrolling. The term may differ from country to country but the purpose is the same. According to Macmillan English Dictionary, it has been defined as dishonest discussions between people who are trying to reach to an agreement.
This term at some point of time was not considered effective and lawful in many political systems for the reason that many political leaders and members of different parties used it for deceiving the voters for making them believe in something which wasn’t true especially for personal gains.
When ex-President of United States for Theodore Roosevelt was criticized during his political career when he stood for presidential ballots where he made political alliances with other parties and was attacked by the media reporters. After obtaining the post of president he remarked: “In politics, we have to do a great many things that we ought not to do”. Another US president William Jefferson “Bill” Clinton was also slated by the US media for initiating rounds of deal-making in garnering support for the house vote on the North American Free Trade Agreement.[1]
The paradigm of Ramsay Mac Donald is one of the cases occurred in United Kingdom where he was terminated from the post of leader of the Labour Party in August 1931 and just after that he founded a National Government. He didn’t resign his seat but weeks after his crossing the floor there was a general election, where he was re-elected. Further many well-known Parliamentary figures like Sir John Simon, Snowdown, Thomas and Sankey during the passé of severe economic and financial crisis were forced to leave their parties. After stepping down they formed groups as Liberal Nationals, National Labour etc. even after their fault critics acknowledged their action as an inspiration which rescued Britain from serious crisis. [2]
Since after independence India has become ademocratic country where the leaders are representatives who are being elected through the majority votes of the citizens. As a result, when a political party wins the election and form its governments, they not only represent the country but also stand in for the ideologies which are been chosen by the civic at large. Citizens place there whole and sole trust in the government, on the core of theirpromises and ideologies. But the leaders get lured by the opposition party’s offers before completion of their tenure, creating problem of political defection which poses challenging barrier before the democracy.
INDIAN PERSPECT
The first move where these front-runners were placed near to the ground wasthrough introduction of Anti-Defection Bill proposed by Rajiv Gandhi which was passed overwhelmingly by both the houses, was inserted in the 10th schedule of the Constitution of India via 52nd Constitutional Amendment Act (1985, March 18), which would cancel their membership if they are found embracing the political defection for their personal gains in the concerned house of legislature including state legislatures.
Moreover, 91st Constitutional Amendment Act, 2003 which came into force on 7th July, 2004. This restricted the overall number of ministers in both Central Council of Ministers and State Council who shall not exceed beyond the 15% of respective House’s and Assembly’s total strength.
The word “defection” is derived from the Latin word “defection” which simply means quitting and shifting one’s loyalties from one political party to another. Such defection is rampant in almost every democratic management around the world.
The 10thSchedule has been designed with theaim to prevent the members from violating the mandate of the party in the allure of office or material benefits or for any other reason and if they still perform any such conduct, he will lose the membership from the said assembly. The decision of disqualification arising out of defection shall be given by the presiding officer of the concerned House.
Is such decision given by the presiding officer subject to judicial review or not? Initially when the Act was framed there was no such provision mentioning judicial review and the decision of presiding officer was final and could not be question by the judiciary. But the Supreme Court held in Dr. Kashinath G. Jalmi and Anr. vs Speaker and Ors.[3] that the Speaker/ Chairman has no authority of review under the Tenth Schedule and that the Speaker order is finally subject to judicial review, as held in KihotoHollohan’s case[4].
This schedule has been drafted not only to prevent such violations but also to protect the democratic repute and status of the nation at the intercontinental pedestal. It also aims to guard and defend the fundamental right of voting of the citizens of the nation, who cast their valuable vote to the political parties with an intention to see their nationflourish and strengthen like other developed nations.
There are few grounds mentioned under the 10th Schedule where on the grounds of defection the MPs and MLAs can be disqualified:
If he voluntarily gives up his membership from the political party.
If he votes in contradiction of the directions issued by his political party.
If he joins any other party.
If the nominated member joins the other party after the end of 6 months.
If the Speaker or the Chairman gives his final decision on disqualification.
There is imperishable history of defection in India. Dating back the period of pre-independence when Shyam Lal Nehru, National Legislature’s member changed his alliances from Congress Party to British India. Then, in year 1937, a member of Legislative Assembly of U.P. shifted from the Muslim League to join the Congress. There is very popular Indian term which is used for political horse trading i.e., “Aaya Ram Gaya Ram” which was coined in 1967 by Gaya Lal, member of the Legislative Assembly of Haryana. He joined Indian National Congress, where he changed his political alliance three times in a single day.
In recent years there has been number of incidents of horse trading that were faced by Indian politics, which resulted in fall and rise in government in many different states of the nation. Madhya Pradesh faced an intense political uproar in 2020, which collapsed the Congress government and upsurged the BJP government. In 2018 election Congress was the single party who won 114 seats with the help of independent MLAs and also MLAs of Bahujan Samaj Party and Samajwadi Party and formed their government in the state. Since the formation of the government the tension intensified between chief minister Kamal Nath and JyotiradityaScindiawho is known to be one of the most popular youth leaders. This resulted in resignation of Scindia from Congress on 10 March,2020.
It was reported that before giving the resignation letter to the Congress President, Sonia Gandhi, Scindia met Prime Minister Narendra Modi and Union Home Minister Amit Shah. In the wake of Scindia’s resignation, 22 other Congress MLAs resigned with him too and joined BJP the very next day. Many Congress leaders blasted over the saffron party, saying BJP was “shamelessly executing horse-trading”. In result of which Supreme Court on March 19, 2020 ordered to conduct floor test in MP Legislative Assembly, where Kamal Nath’s government failed to pass the test and ended and it was replaced by BJP government headed by Shivraj Singh Chouhan.
Similar incident took place in Maharashtra Assembly elections in 2019, where BJP the largest party with 105 seats fails when its ally Shiv Sena who won 56 seats, pulled back its alliance with BJP mainly over who will become the chief minister and form a coalition government with NCP and Congress who won 54 and 44 seats respectively. [5]
EXCEPTIONS
Disqualification under the sphere of Anti-Defection shall not apply in case where there is split or merger of 1/3rd or more members of the party to another party. In simple words we can say that if 1/3rd or more members of the party leaves and join another party, they will not be disqualified under the Anti-Defection law.However, this exception of 1/3rd had been revised by the 91st Constitutional Amendment Act after which it now requires 2/3rd members of the party members to merge with another members.
The major lacuna of the defection law is that hostility and enmity between the members of the party nurture internal disagreements with seniors, difference in opinion and beliefs and fight for governance, as a result of which members change and move from one party to another.
Defection machinery in India has a number of inadequacies and shortfalls, especially amid the recent instance of the Madhya Pradesh government crisis, in which JyotiradityaScindiawith 22 other MLAs left the party, which leadto the fall of Kamal Nath’sgovernment who is member of Indian Congress Party, and the Kerala legislative assembly case in 2019.
In order to foster Parliamentary Consensus, anti-defection rules were established in the Indian Constitution as a set of guidelines for elected officials to follow. When a person is nominated as a member of a political party and stands for office using that party’s symbol, he owes loyalty tothe party and the citizens who contributed their precious votes. However, many leaders are leaving their parties to join the opposition, which can lead to the collapse of the government in that state, causing political unsteadiness. As a result, lawmakers must behave in accordance with the values of the party.
SUGGESTIONS FOR REFORM
LAW COMMISSION’S 170TH REPORT- Any provision which relievessplits and merger from disqualification to be deleted and political parties should limit issuing of whips to instances only when the government is in danger.
ELECTION COMMISSION- Decision given under the 10th schedule should be made by the President/Governor on the binding advice of the Election Commission.
CONSTITUTION REVIEW COMMISSION (2002)- The member so disqualified should be expelled from holding any public office or any remunerative political post for remaining time period. The votes casted by such members should be held invalid.[6]
CONCLUSION
Every law framed and implemented works magic when it sticks to the transparency and meticulousness. The rules and regulations framed under the Act should not only stabilize the governance but also help in reducing the political disparities and corruption in the nation, which will eventually lead to a developed nation. And this is possible when all the three wings of Indian Constitution work in harmony and at the same time keep check on each other. Under defection law it is more important for us to give the power of decision making in hands of judiciary instead of putting it in the legislative councils and assemblies, so that the ultimate resultis free from all the biasness and prejudice which might be present in the decision making of the speakers of such bodies. For that to happen reformation of the provisions are important to be ensured.
[1]Sabir Shah, Horse-trading plagues politics of India, US and Britain too, THE NEWS (Aug02, 2019), https://www.thenews.com.pk/amp/507166-horse-trading-plagues-politics-of-india-us-and-britain-too [2]Palti&Suvendu Kumar, Anti Defection Law in India a critical study, (2016) [3]1993 AIR 1873, 1993 SCR (2) 820 [4]1992 SCR (1) 686, 1992 SCC Supl. (2) 651 [5]Swapnajit Kundu, What is horse-trading: Incidents that rocked Indian politics in recent times, NEWS NINE (15 Feb 2022 8:45 PM), https://www.news9live.com/knowledge/what-is-horse-trading-incidents-that-rocked-indian-politics-in-recent-times-153815. [6]Premkagarwal1968, Anti Defection Law Challenges, LEGAL SERVICE INDIA, http://www.legalservicesindia.com/article/1937/Anti-defection-law-the-challenges.html