Was Jyotiraditya Scindia’s move to BJP legal?
Politics
What does defection mean?
In the past few years, state legislatures have faced a crisis of elected members defecting to opposition, thus creating uncertainty and instability in the state’s polity.
Although this phenomenon has seen a rise in recent years, it is not new. The practice of defection and horse trading to topple the government has been going on for years- moulded by Congress and perhaps perfected by BJP.
The issue with deflection
It is a subversion of the electoral mandate where legislators shift as per their convenience for political/financial gains
It brings instability to the normal functioning of government and administration
Promotes horse trading and acts against the mandate of a democratic setup
Did you know?
During 1967-71, 142 defections in Parliament and 1969 in State Assemblies took place. 32 governments collapsed and 212 defectors were rewarded with ministerial positions.
How did the government counter this?
In 1985, the Rajiv Gandhi government brought in the Anti-Defection Law under the 52nd Amendment Act, which added the Tenth Schedule to the Constitution in order to halt the epidemic that is horse trading.
The Supreme Court in Kihota Hollohon vs. Zachilhu (1992) upheld the validity of this law but left it open to judicial review.
Let’s look at the changes brought about by the amendment.
Basic Provisions of Tenth Schedule
Applies to Parliament & State Assemblies
MP/MLA stands disqualified if he/she:
Voluntarily gives up the membership of party
Votes contrary to directions of party without permission, or abstains from voting
Independent candidate joins a party post election
Nominated member joins a party six months post membership
Exceptions
If a merger takes places (two-thirds agree to join)
If elected as presiding officer and gives up membership voluntarily or rejoins after post ceases
Advantages
Provides stability to the government
Provides for punitive measures against a member who defects from one party to another.
Facilitates merger of political parties
Promotes party disciplines
The 91st Amendment Act (2003) makes the law stronger with the following provisions:
Number of “Council of ministers” in Parliament & State Legislatures has been capped at 15% of total strength
Disqualified MP/MLA cannot become ministers
No more protection on ground of splits
Reality Check
As is evident from recent incidents, the law in its current form has issues and shortcomings, the most prominent ones being:
There is no clear distinction between defection and dissent, the latter being truly essential in democracies
Restricts freedom of conscious and interest of electorate
Dilutes separation of power since legislators cannot vote on issues independently
Presiding officers of House are deciders and hence are rarely impartial
What can be done?
The decision should be made by President (Parliament) or the Governor (States) on binding advice of Election Commission open to judicial review, rather than by the presiding officer
An independent authority can be set up to deal with defection related issues
Direction of parties to legislators should only be limited to votes where government is in danger
A culture of open discussion, dissent and democracy should be built within parties
The Scindia Case
Jyotiraditya Scindia was a core member of the Indian National Congress who eventually moved to BJP citing reasons of corruption and toxic culture in his former party. He left the INC with few other loyalists that led to Congress losing majority and BJP forming the government in MP.
Was it horse trading? Well not on paper.