The Legal Conundrum of Online Gaming in India
August 26, 2020
August 26, 2020


The evil of political defection has plagued Indian political scenario since the very beginning and has been a thorn in their path to stability and progress. The recent incident of political defection was noted in Rajasthan wherein the incumbent Deputy Chief Minister tried to defect from his parent political party with numerous other elected representatives under the assumption that he might be able to score a more lucrative seat by joining hands with the state opposition. Though his attempt to jump ship led to his own drowning it opened a Pandora box of legal and political questions regarding defection laws in India. 
The Constitution of India had not originally envisioned provision’s related to anti-defection law because of the very fact that members of the constituent assembly had never contemplated it as a grave threat to India’s democracy and wanted unrestricted propagation of ideas and belief as per the conscience of Indian legislators and parliamentarians. But over the period of time, their belief shattered with impeding situation of political defection nationwide which tended to destabilise and overthrow the ruling government in the state as well as central level, thus keeping the leaders of both sides on their toes. Moreover, lack of an anti-defection law made the situation worse and gave the elected representative unbridled power to decide which party to jump to at a whim without any restriction.
The primary reason of defection which has been ascertained is that the defecting individual is presented with a lucrative position in the new government, mostly a ministerial position if none were provided earlier or a better portfolio than before. During the fourth Lok Sabha, the Indian political scenario witnessed a tumultuous situation where 210 legislators in different state legislative assemblies defected to other parties, 116 of whom were bestowed with the ministerial position in the new government. Allegations have also been levelled against defecting politicians about hefty bribes they accepted to shift their allegiance.
India’s first stint with anti-defection law came in the year 1967 when the fourth Lok Sabha was facing the scourge of political defection primarily because of the very marginal difference between the elected representatives of the ruling party being 283 and the necessary majority being 272. To do away with this predicament parliament formed a committee under the chairmanship of Y. B. Chawan, then Home Minister of India but the report of the committee died in the parliament with a term of fourth Lok Sabha coming to an end two years later. Nonetheless, seeds of anti-defection laws were finally sowed. Eventually in the year 1985, the then Rajiv Gandhi government, sensing the dilapidated condition of Indian political structure decided to bring into effect the 52nd  Constitutional Amendment Act, 1985 which would insert Tenth Schedule to The Indian Constitution or as we know it today as “Anti Defection Law” and move Indian political regime to a new era where political defection might become a thing of the past.
Anti-Defection law in India has a number of loopholes and pitfalls which needs immediate attention. Primary among them being that the current anti-defection law violates Article 19 of the Indian Constitution by curbing the elected representative freedom of speech. Under the anti-defection law, elected representative are not allowed to change their political allegiance on the basis of the prevailing situation. Restrictions are imposed wherein an individual cannot leave his parent party without having the membership of his respective house rescinded. Moreover, it’s not just the shifting of allegiance but also voting right of the representatives which is censured wherein if the representative votes for a motion which is contrary to the stance taken by his party then it is under the discretionary power of his party to expel him which can ultimately lead to his disqualification from the House. This is a gross violation of freedom of speech granted to politicians under article 105 and 194 of the Indian constitution.
The constitutionality of the Tenth schedule was questioned before the Supreme Court in Kihoto Hollohan case wherein arguments were presented regarding curtailment of the right to freedom of speech of elected representative enshrined in Article 19, 105 and 194 of the Indian Constitution. Supreme Court struck the issue down by stating, “Freedom of Speech can be curtailed for larger interest”. So despite all its benefits, the Supreme Court accepted that anti-defection law is curtailing a fundamental right which is Sancta Sanctorum for all freedom-loving individual. Moreover, the fact that freedom of speech of elected representatives whose very job is to raise issues of their constituents before the house are being censured to a considerable extent makes it a gross miscarriage of justice.
Instances can very well arise where a representative later on during his term may have some political and ideological disagreement with his fellow party members and make him take drastic decision to change his political allegiance but the anti-defection law bars him from doing so. Further on it promulgates an embargo over the political career of the individual by forcing him to relinquish his seat in the house. Furthermore, anti-defection law to a considerable extent decreases the possibility of bipartisanship as members of a political party are not allowed to vote as per their conscience but instead have to follow the order from leaders of their own party.
Despite all the benefits which this law brings with it, there are still numerous changes which could make it more acceptable to Indian conditions, primary among them being more lax attitude toward the freedom of an individual representative. The provision that a representative might be disqualified if he votes against the common consensus of his party is a very hard and fast rule. It can be considerably relaxed by making this provision applicable only in the certain exceptional condition where the motion goes against the core principles of the political party of which the representative is a member.
It is also essential to ensure that condition which led to the departure of the representative from the party be taken into consideration before disqualifying his membership from the house. Now considerations which led to departure should not be deliberated upon by the members of parliament or the speaker for sake of justice. Thus we are left with only one adjudicating authority which is competent to judge the subject and that is The Supreme Court of India or concerned high court for that matter. At the moment judiciary is barred from interfering into the matters of proceedings related to defection. Thus there is a need for amendment of tenth schedule to bring Supreme Court into the loop for a just proceeding.  
In India per se, an individual is elected not just because of his ideology or stance on a particular or host of issues but instead, his political allegiance to a party also plays a significant role. These parties espouse a parent ideology which is propagated and is believed to be the guiding principle for their entire representative. Defecting from the party under whose banner the representative won the election is an injustice which is perpetrated on both the constituents of his constituency and his political party.
Anti defection laws are indeed one which brought a certain moral compass to Indian political scenario but it has very much constricted freedom of individual representative and thus doesn’t provide enough opportunity to these lawmakers to raise their voice. Thus it is high time that these arbitrary rules which encroach on fundamental rights of elected representative be amended to bring in the necessary changes.




Pritesh Raj is a second-year student at National University of Study and Research in Law, Ranchi.

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