Politicians take advantage of flaws and loopholes in anti-defection law

AERIAL VIEW

A total of 23 MLAs have ditched the parties – Congress and MGP and have landed in BJP for greener pastures.Vishwajit Rane, Subash Shirodkar, Dayanand Sopte, Babu Kavlekar, Babush Monseratte, Jennifer Monseratte, Filipe Neri, Francis Silveira,, Wilfred D’Sa, Clafasio Dias, Isidore Fernandes, Anthony Fernandes, Nilkanth Halarnkar, Deepak Pauskar and Babu Azgaonkar have switched sides to join BJP since 2017 to 2019.
Eight more – Digambar Kamat, Michael Lobo, Delilah Lobo, Kedar Naik, Rajesh Faldesai, Sankalp Amonkar, Alexio Sequeira and Rudolf Fernandes crossed over yesterday.
Amid allegations of horse-trading, the MLAs have maintained that they have switched over in the interest of the constituency. The phenomenon in question — i.e., whether it is morally and ethically correct for an ML:A to get elected on one ticket and defect to other?
To resolve this problem, in 1985, the Constitution was amended to include the Tenth Schedule (also known as the anti-defection law).

The ongoing political crisis in Goa is neither new nor uncommon. Turbulence in governments — involving the “switching of sides” by elected representatives — has been increasingly frequent for decades, at least in Goa.
In the past three years has been a mega exodus from the Goa Congress.
A total of 23 MLAs have ditched the parties – Congress and MGP and have landed in BJP for greener pastures.
Vishwajit Rane, Subash Shirodkar, Dayanand Sopte, Babu Kavlekar, Babush Monseratte, Jennifer Monseratte, Filipe Neri, Francis Silveira,, Wilfred D’Sa, Clafasio Dias, Isidore Fernandes, Anthony Fernandes, Nilkanth Halarnkar, Deepak Pauskar and Babu Azgaonkar have switched sides to join BJP.
Amid allegations of horse-trading, the MLAs have maintained that they have switched over in the interest of the constituency.
The phenomenon in question — i.e., whether it is morally and ethically correct for an ML:A to get elected on one ticket and defect to other?
To resolve this problem, in 1985, the Constitution was amended to include the Tenth Schedule (also known as the anti-defection law).
The anti-defection law provides that members of political parties who disobey the whip or vote against the party in a confidence motion will face disqualification.
As recent events have made clear, however, the Tenth Schedule is no longer an effective check on the phenomenon of defection, and an urgent reconsideration is required.
There are a few reasons why this is so. The first is that the defecting MLAs have found a way around the restrictions in the Tenth Schedule. Instead of formally “crossing the floor” or voting against their party in a confidence motion, they form the two third group creating a split in the party to bring down the party’s strength in the House, and then merge the new split group into the BJP.
This, it should be clear, is defection in all, but the most formal sense. Unfortunately, in their recent judgments, the courts have failed to stop this practice (although, arguably, the language of the Tenth Schedule does not leave much room to the judiciary).
The second reason is that no matter how well-drafted a constitutional provision is, ultimately, its implementation depends upon constitutional functionaries acting in good faith.
As BR Ambedkar pointed out soon after the framing of the Constitution, every constitutional text can be subverted if those charged with running the affairs of government are inclined to do so.
In recent times, it has become clear that the major constitutional actors involved in times of constitutional instability — i.e., the governors and the speakers — do not act in good faith.
In every constitutional crisis over the last few years, governors have acted like partisan representatives of the political party that appointed them and have flouted constitutional conventions with impunity (from deciding which party to call first to form the government in a hung house to ordering — or refusing to order — floor tests to prove majorities).
Thus, despite the fact that the governor — as an unelected functionary — is supposed to play a minimal role in the affairs of the state, the individuals in that position have interfered on behalf of their erstwhile political parties. Speakers have done a little better.
Third, the judiciary itself has not proved up to the mark. For example, take the case of Girish Chodankar’s disqualification petition against 10 Congress MLAs in 2019.
The case is still rotting in the Supreme Court.
This has given a reprieve to the rebels, who not only completed the term but also contested the election.
The last — and most under-discussed — aspect is the presence of money in politics. It has been widely reported that huge sums of money are offered to MLAs to desert their parties and bring down the government. This is enabled by the existence of electoral bonds, which allow for unlimited and anonymous funding to political parties.
Under the electoral bond scheme, phenomenal sums of money have been donated to political parties over the last two years. Unfortunately, a petition challenging the constitutionality of the electoral bond scheme has been pending in SC for the last two years.
Despite multiple election cycles, the apex court has taken no action against it.
In sum, therefore, the anti-defection law needs to be improved (there have been suggestions, for example, that disqualification or resignation should be accompanied by a five-year-long bar from standing for elections again).
More crucially, however, the legally-sanctioned influence of big money in politics must be curtailed. If these steps are not taken, Indian democracy risks dissolving into a sham quickly.