Tabish Ayub
According to the 52nd Amendment Act of 1985, members of parliament and the state legislatures can be disqualified on the ground of defection from one political party to another. Defection takes place almost in all democracies, which is a threat to the stability of the government.
BACKGROUND:
In the general elections of 1967 and 1971, by one estimate, almost 50 per cent of the 4,000 legislators elected to central and federal parliaments subsequently defected, leading to political turmoil in the country. An extreme example of this occurred in 1967, when the legislator Gaya Lal changed his allegiance three times in a single day, giving rise to the infamous expression “Aaya Ram Gaya Ram”. To stop this defection, in 1985, 52nd Amendment was done in the Constitution, adding tenth schedule, by the Parliament. Further in 2003, by 91st amendment, the government strengthened the act by banning defectors from becoming ministers for a fixed period of time.
ANTI-DEFECTION LAW IN J & K
With respect to the legislative assembly:
In 2005, a congress- coalition government was ruling the state of J & K, and passed the anti-defection law, according to which if an MLA defies the whip of the party, he/she will be disqualified. Through an amendment passed by the J&K assembly, para 3 of schedule VII of the then J&K constitution, which allowed one-third of the party’s MLA to form a separate, recognised group, was deleted. No matter their numbers, MLAs elected from a particular party have the right to defect. He/she has to resign and seek re-election. In J&K, the decision of disqualification of defecting MLA stands with the leader of the legislature of their own party, whose decision is final. In comparison to national law, J&K has more stringent anti-defection laws.
With respect to the municipality:
According to the Jammu and Kashmir Municipal Act, 2000, [section 18-A. Disqualification on grounds of defection];
(1) A member of a municipality who belongs to any political party is disqualified from being a member of the municipality-(a) if he has voluntarily given up his membership in such political party; or (b) if he votes or abstains from voting in such municipality in contravention of any direction issued by the political party to which he/she belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party.
From this, it is clear that anti-defection in the case of a municipality is available to maintain stability of the council and respect the people’s mandate and party’s ideology through which he/she has been chosen.
In terms of Panchayati Raj:
Now let’s look into the Panchayati Raj Act of 1989. The anti-defection law in the case of the Panchayati Raj Act of 1989 in J & K is missing. If today we are able to say that we are having a grass root level democracy, it’s all because of the successful establishment of the Panchayati Raj Act on the ground. Without a doubt, all governments and governors who ruled the state of Jammu and Kashmir, now a union territory, enacted laws for the benefit of the people. But the most important thing, which I can say is the soul of Panchayati Raj, the anti-defection law, is still a lost cause.
In 2020, the GOI established a three-tier Panchayati raj system in J&K by holding DDC (District Development Council) elections, as provided in Chapter XI, Section 45 of the Panchayati Raj Act, 1989. The members were elected directly from the territorial constituencies of the district, excluding the municipality area. People participated with great enthusiasm and elected their members by casting their votes. Different political parties participated and their candidates were elected by the people.
However, when elections for the chairman of the council are held, horse trading of DDC members, cross voting, shifting sides, and so on occur almost in all the districts, which is unacceptable in any democracy, particularly India (largest democracy of the world).
Now the question arises, why does this happen? And how does it take place in a democracy? All because “the anti-defection law is missing.” We do not have an anti-defection law in Panchayati Raj which we call our grass root democracy. We are having anti-defection for MPs, MLAs and members of the municipalities, but not for forward members, Sarpanchs, and DDC’s. That’s a biggest loophole in our Panchayati Raj system and Indian democracy as whole.
A municipality ward member has a mandate of only about 100 people and is subject to anti-defection laws, whereas DDCs are elected by thousands of people and are not subject to such laws. Defecting and shifting is a very big crime and a betrayal to both people and the party on whose mandate members get elected. Several political parties raised their voices in an attempt to bring DDCs under anti-defection scrutiny, but nothing happened. DDC members of NC, PDP, and Congress joined APNi party in Kashmir; several members cross voted against the party’s whip; many independents joined different political parties, which is unhealthy for democracy and betrayal to both parties and the people’s mandate.
A similar type of case happened in district Doda. As per the news, one DDC member of the Congress Party from constituency Ghat cross voted in favour of BJP during the Chairman Election of the Council. After one and a half years, the Congress Party held an inquiry into this case and expelled its DDEC member from the party as per Order No: JKPCC/DISC/60021, on July 18th, 2022.
Now the question arises: how to deal with it and stop this unhealthy practice. The answer remains the same: “the anti-defection law”. Only this can stop all these unhealthy practices of members.
From time to time, we have seen that the current administration of J&K, under LG Manoj Sinha, is taking bold decisions to establish the “rule of law” in our union territory, which is also his vision. Therefore, the LG administration must take a step in this regard as well and bring an ordinance for the Panchayati Raj Act, 1989 at the earliest to stop these types of unhealthy practices in the upcoming DDC elections, which are not part of our democracy and ultimately leads to corruption and instability.
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