India is a tall and vibrant democracy, and the Indian Constitution has been recognised as one of the best in the world. This fact, in itself, is enough to swell the chest of every Indian with pride. To be an individual, who is invested with the immeasurable power to be an integral part of the democratic process of electing a person to represent him/her, is unquestionably a matter of great gratification for every citizen.

Considering the diversity of India, ideology assumes tremendous significance. Opinions are expected to be expressed as well as honoured. The government is important but the opposition is even more important in a democracy.

The Third Schedule of the Indian Constitution describes various oaths and affirmations to be taken by government officials, including ministers. It emphasises the responsibility of the ministers to pledge loyalty to the Constitution of India as per law, to uphold the country's sovereignty and unity, and to do right by the people despite the differences in class, community, faith, and language, in accordance with the Constitution and the law, without fear or favour, affection or ill-will.

However, in present times, a deplorable situation seems to have emerged. Those in positions of authority are resorting to both legitimate and unethical means, including using state machinery, to instill fear or offer incentives to members of the opposition to switch sides. As a result, political defections have become a major problem in Indian politics, posing a significant threat to the integrity of the electoral process and the stability of the democratic system. Especially, against the backdrop of the recent upheaval in Maharashtra politics and in the Congress, there is a need to give adequate consideration to the issues highlighted from my end.

Defection, which is colloquially referred to as "Aya Ram Gaya Ram" in Indian politics, is the act of elected representatives changing their political affiliations while still in office. This practice originated in Haryana in 1967 when Gaya Lal, a member of the legislative assembly, switched parties three times in just two weeks, prompting his colleague Rao Birendra Singh to come up with the now-famous term. Since then, this practice has become widespread, affecting the entire political system like a contagion. The problem with defection is that it undermines the electoral mandate of the people. The vibrancy and tallness of democracy and the sacredness of the Constitution are inevitably defiled!

When a candidate wins an election under a specific party banner, it is expected that the elected representative would represent the interests, ideologies and beliefs that the political party stands for. However, when sides are changed, the elected representative breaks the trust of his/her voters, deprives the nominating party of its representation, and forgoes the values, principles, and ideologies that he/she had promised to abide by. It is a situation where elected representatives prioritize their personal interests over the interests of their constituents. The former chief election commissioner of India, T.N. Seshan had once emphasised that anti-defection laws are necessary to maintain government stability by preventing frequent party-switching. However, despite the presence of these laws, some defectors remain unconcerned about the ethical and electoral consequences of their actions.

To my understanding, there are three pressing issues related to defection that require immediate attention. The first pertains to defining the original party, which becomes complicated in case of a party split. For example, when Shiv Sena split (or was made to split), it resulted in a legal dispute over the party name and symbol. Similarly, in the case of Lok Janshakti Party, the symbol was taken away from the original party, causing confusion among voters. This raises a broader question about who constitutes the party—only those elected or even those who work behind the scenes to get others elected. There are no easy answers to this offered by the Constitution or any specified piece of legislation.

The second issue concerns the role of the chairperson or speaker, who is often a member of the ruling alliance. Although the speaker is expected to act as a neutral arbitrator, in practice, he/she often facilitates defections and mergers that benefit the ruling party, raising questions about his/her impartiality. Additionally, it is unclear what the scope of judicial review is on the speaker's decisions. While the Supreme Court has recently held that speakers should be the first authority to decide on disqualification, an earlier case in 2016 raised questions about a speaker or deputy speaker facing removal over deciding on disqualification proceedings against legislators.

The third major issue in Indian politics is the lack of consequences for members who defect, resulting in a loss of mandate and a sudden moral crisis. The Anti-Defection Law, implemented in 1985 to address this issue, has not been successful in preventing defections. One contributing factor is the provision that permits a group of MPs/MLAs to switch to another party without facing any penalty (Section 4 of the Xth Schedule). Furthermore, political parties are not penalised for enticing or accepting defectors, which exacerbates the problem.

To tackle these challenges, certain steps must be taken. Firstly, an unbiased tribunal should be established in place of the speaker, who is often partial, to handle defection-related matters. This will ensure a just and unbiased decision-making process. Secondly, a compulsory waiting period for defectors must be introduced. This means that a lawmaker who changes allegiance must wait for a specified time before being eligible to contest for re-election (Even if he/she belongs to the group with 2/3rd of the party members as permissible in the Xth Schedule). This will give voters time to assess the reasons behind the defection and make an informed decision during the subsequent election. Finally, it is crucial to accurately define the original party to distinguish between a few members and the party as a whole. This will prevent the chaos that occurs during party splits and avoid legal disputes over the usage of the party's name and emblem.

To sum up, defection in Indian politics poses a significant obstacle that undermines the democratic system and the trustworthiness of elected officials and political parties. The Anti-Defection Act has not been able to address this issue effectively due to its inadequacies and flaws. Strengthening the act to curb defections would require a comprehensive strategy, which involves implementing multiple measures such as setting up an impartial tribunal, enforcing a mandatory waiting period, and precisely defining the original party. It is only through these steps that we can hope to eliminate the problem of defection in Indian politics and reinstate public pride and confidence in democracy. Therefore, it is time that this act is brought into the Parliament for amendment and sent to a Parliamentary Standing Committee for deliberation at the earliest.

(Dr. Fauzia Khan is a Member of Parliament in Rajya Sabha. She is also the national president of the Nationalist Mahila Congress (NCP's Women's Wing) and has been a former minister for GAD, education, health, and WCD in the government of Maharashtra.

The opinions expressed in this article are those of the author's and do not purport to reflect the opinions or views of THE WEEK.)