Anti-Defection Law Misused to Reward Political Defections, Says Senior Advocate Dushyant Dave

The senior advocate argues that the Constitution’s anti-defection provisions have been fundamentally misread, allowing mass defections to flourish instead of protecting the mandate of voters.

Many are perhaps unfamiliar with the story of Gaya Lal: a legislator from Haryana who switched three parties in a single day. Originally from the Congress, Gaya Lal defected to the United Front coalition and then returned to the Congress by the end of the day.

But that was 1967. Since then, defectors have been mocked at with the Aaya Ram Gaya Ram glib. But it was not till 1985 that all this changed. It was under Rajiv Gandhi’s government that Anti-Defection Law was brought in to prevent defections.

According to this, a defector stands disqualified from the state legislator or Parliament if he switches to another party or votes against his own party. However, if two-third members of one party merge with another political party, they escape disqualification.

A case in point is the recent break-up of Mamata Banerjee’s Trinamool Congress when over two thirds of party MLAs and MPs quit the TMC to form a separate block, claiming that they are the “real TMC”.

A controversy has erupted over whether this split will stand legal scrutiny or not; whether the breakaway group will face disqualification and so on and so forth.

The present law has plugged several gaps. Yet, recent developments substantiate that the existing law has also created demons that are playing havoc.

Parties are being split by the minute and all that seem to matter is a head count: two-thirds to be precise.

However, as with any law there are several interpretations and red flags to the Anti-Defection Law as well.

As parties are breaking up, it is time to reassess and re-examine the law and prevent its misuse. “The rot must stop,” warned Senior Advocate, Supreme Court, Dushyant Dave, in an exclusive interview recently.

Very critical of the way the current law is being misused, Dave said: “It is endemic and political morality has ceased to exist. Those in public life either want power or money. Today, there is so much of money floating around.” He stated that the BJP is the richest party in the world. “Money and positions are the lure and these are enough to make people cross over from one party or another. Everyone is interested in power,” he added.

Stating that the Anti-Defection law or the Tenth Schedule Amendment was supported by every party in Parliament, Dave said: “It was a wise and futuristic move by Rajiv Gandhi to purify public life” even as he rues its misuse in recent years. “It was a measure that is supposed to have checked defections. It is a different matter that it has not worked at all in the last 40 years,” he said.

Stating that the import of the Tenth Schedule has been misunderstood, either wilfully or by accident or ignorance, Dave said: “If Tenth Schedule is interpreted in the literal sense, then defections will stop”. However he qualified this by saying that “all depends on the view the Supreme Court takes”.

On his part he feels that each of the TMC legislators who have defected recently “stand disqualified”.

Explaining the nitty gritty, Dave said that the Tenth Schedule must be read with Article 101 and 102 of the Constitution. “Take for example the six Shiv Sena members who shared a platform with Eknath Shinde. They have said that we have voluntarily left Uddhav Thackeray’s party. The moment they say so, they stand disqualified. Numbers do not matter. If you have left the party from which you got elected and aligned with another political party, it is the end of the matter. That is what Article 101, 102 read with paragraph 2 of the Tenth Schedule provides.

Dave said he was “shocked and saddened by the fact that instead of trying to stop defections, we are encouraging them in the name of two-third members splitting from the original party”.

Hitting out, Dave said that “the courts have done violence to the Tenth Schedule” which he said, is what we are seeing today.

Dave’s take on why the courts have failed to measure up: “The courts comprise of human beings and judges do not come from the Mars or Moon. They have their own ambitions and aspirations. Over the years, judiciary has undergone a change. During Indira Gandhi’s tenure, some of the best judges compromised. During the Emergency, the judges failed us by saying that citizens’ rights can be suspended barring Justice Khanna who said you can’t do it”.

The rot is not new: “It started during Indira Gandhi’s time and over the years the judges have become pro-establishment and are extraordinarily conscious of who is in power and how strong that person is. Today, Prime Minister Narendra Modi is in power, he is powerful, he is very popular, so it takes tremendous courage for a judge to decide against his government or its actions,” Dave said.

On his making a serious charge against the judiciary, Dave reiterated: “I am not making a charge. It is a fact. There are hardly any cases which are decided against the government today.”

As for defections, Dave agreed that the situation has gone from bad to worse: “Every political party is responsible. It is not BJP alone. Congress has also done this in the past.”

Yet, taking a dig at the ruling party, he said that the BJP wants a “Opposition-mukt Bharat today”. The BJP he said is “unstoppable”, even as he refrained from taking too many political questions.