25 Sep 2022  |   05:41am IST

Can curse of defections get eradicated legally?

Goa was recently once again rattled by scourge of defection. Unlike other times, the anger is more as senior politicians genuflected before gods, went to different religious shrines and pledged that they won't betray people's mandate and then went about doing just that, giving justification that is amusing nevertheless. Naturally, there is going to be some amount of resentment from the people. But beyond that it’s important to point out the fact that no political party in Goa or in India is serious about eradicating defection. If that wasn’t the case, then we would have had a ‘no defection’ law which would primarily be based on the principle that anybody who defects in midst of his or her tenure as member of legislative assembly should be disqualified and not allowed to contest for one more term. We also have to figure out why we are bereft of morals and ethics. Why doesn’t the society as a whole stand up as a lighthouse in these turbulent and choppy seas to guides all these ships to proper democratic anchorage? That is where we lack. There's not enough people’s deterrent emerging because of which all they need is magical number of two-thirds and then they do what they do without any ethics or morals. In the weekly Herald TV debate Point-Counterpoint SUJAY GUPTA explores how the law regarding defection can be strengthened further to prevent this malice from destroying our much zealously guarded temple of democracy.
Can curse of defections get eradicated legally?

The whole of Goa is upset with what has happened recently. Eight out of the 11 mills from Congress party recently defected to BJP, raising a huge question mark on the eroding ethics in politics. However defection is not a new beast. Maybe its nature has changed because gore has been witnessing defections since 1964-65 when Dayanand Bandodkar was the Chief Minister.

Ramakant Khalap, former Union Law Minister said defection is not new to Goa. It started when the first Constituent Assembly was constituted. There was no defection in the first session but there was dissension.

“A couple of MLAs didn’t agree with Mr Bandodkar on some issues and had their own independent stand in one way it was good as it was reflection of the democratic principles. You express your opinion openly but don’t go against the party what was the position in those particular days. In this second assembly we saw a group of MLAs breaking away from the Opposition and ruling party,” Khalap said.

It was thought that band or government would collapse because several of these MLAs including some ministers, defected. They formed a group of seven and then there was counter defection from the opposition. They strengthened the Bandodkar government and it continued to in power.

“But it gave a clear picture that all is not well. Whatever you may say, doctrines remain on paper. People create their own doctrine to serve their purpose. Bandodkar had a fairly stable tenure. Government ran well and he also had sizable MLAs with him. He had 18 out of 30. He continued till his demise then Mrs Shashikala Kakodkar became the CM and slowly the decline in members of MGP began,” the former Union Law Minister said.

Simultaneously some youngsters who came into the party at that stage, they first had dissension and finally broke away.

Three of them claimed to be members of the original splinter MG party. They staked their claim to form the government. Morarji Desai was the Prime Minister at that time. He didn’t approve this defection and didn’t allow the formation of the government. Finally the Assembly was dissolved and fresh elections were held.

Then gradually MG party's decline started 1980. Out of the seven MLAs who were elected, five decided to join the Congress under the leadership of Mrs Indira Gandhi. Five out of seven merged with Congress and two remained in MGP. There was a political tussle where 28 people were on one side and only two on the other side.

“Then the MGP again started getting stronger and in 1984 and again in 1990 Roma we found those getting elected from Congress started jumping on the other side. The disease had started spreading by that time,” Khalap said.

When asked about the difference between diffraction that happened in the 70s and 80s and what is happening now,Jose Marie Miranda, a senior columnist, said that in the earlier days there was crave for power.

“People wanted ministries and that is why sometimes they shifted from one party to another. Today they also crave for money earlier we didn't even know how many zeros made a crore. Today people talk in thousands of crores. So, that lure for money was not there but the craving for power was certainly there,” Miranda said.

Then there was a split in Jack Sequeira group in 1967 before the Opinion Poll, when UG split. Then there was another split. But later on things became so bad in Goa that defections became a routine.

“Today Goa is known as the land of ‘Aya Rams’ and ‘Gaya Rams’ because there have been so many defections. Once in Bangalore a journalist asked me who’s your chief minister now months I felt very ashamed because in 10 years we had 13 chief ministers in Goa,” Khalap lamented.

Since then defection has been a very common phenomena in Goa and now anti defection law hasn’t helped either. The 52nd amendment of the constitution required one-third to split. In 2003 another amendment came in where it was made two-thirds. In spite of that, defections are happening.

“I personally would think that when somebody disagrees with parties policies it’s free to go but he or she should resign and then go so that he or she retains support of people. The people who decided whether you should represent them or not, should decide whether your change in attitude towards the party is acceptable or not. If the people are in agreement they will continue voting as it has happened,” he said.

Even in the last defections, people like Vishwajit Rane got re-elected. So nothing can be held against them because the people re-elected them.

“But in this particular case, they waited till they got eight MLAs. It means they’re cowards. They didn’t expect to get re-elected once they resigned,” the veteran politician said.

So can we say for sure that no party is interested in cutting out defection? Anybody who gets power, wants to hold on to it lock stock and barrel.

However, even in this ecosystem, can we say Congress is primarily the culprit simply because of its history of being in power for a long period the hunger to remain in power amongst the Congressmen is much more as most of the defections across the country has happened from Congress party?

Anthony D’Silva, an activist, said that this question can be looked at in two ways. Regarding hunger for power at party level, credit should go to BJP amongst the two parties BJP and Congress and hunger for power at a micro level add candidate or MLA level should go to Congress. 

“BJP party wise doesn’t have much to do with splits especially in Goa. What I’ve seen in politics now is the split mostly is happening arbitrarily by the Congress. They don’t care to ask anybody and now they have got a new mantra where they justify that defection by saying that their followers have told them to do so,” D’Silva said.

Citing an example D’Silva said, in Nuvem the percentage of votes given to BJP was only three per cent and Congress vote share was 40% but the overall anti BJP votes was 97%.

“The Congress MLA defected to a side getting only 3% votes, which is the ruling party. This is a dacoity of votes. That means in future BJP government can engineer defections even without their candidates contesting for polls. This worries me. There’s no loyalty or honesty. In this election, amongst those who defected, seven were new faces. So how do people vote for new candidates because all the new faces have also defected,” he said.

D’Silva said that again in next elections, Congress will say it will give chance to new faces.

“Best thing is change the anti-defection law any candidate who gets selected on a particular party symbol, he or she should get re-elected if the elected member chooses to defect. In this case of Nuvem MLA, he got the votes which were not his own who stop they were votes for the symbol. An independent MLA does not contest elections on party symbols. Whatever votes that candidate gets is on his or her merit,” he said.

Citing the example of Vishwajit Rane, the activist said that He re contested the elections and then went to BJP. That means the loyalty of his voters we’re with him. He got votes not on party symbol put on his name and photo.

“If that happens then we don’t have any issues. All these candidates take shelter of the anti defection law but love land will be different from love God. I’m saying, where’s the morality in this? Don’t you have little conscience? At least have one atom conscience. Despite 97% anti-BJP votes, you are the BJP MLA there. This is totally disturbing. Take the challenge, re-contest and get re-elected,” he said.

The Congress party has been a victim and a culprit, from whichever way one looks at it. The issue is, in this kind of atmosphere of defection how does Aam Aadmi Party (AAP) see it as a challenge considering that there is always an issue of people breaking out? How do you all circumvent this fear?

Valmiki Naik, Member AAP Goa said that there is an element of good leadership in AAP. Arvind Kejriwal has shown this strong believable leadership, who can one look up to that is why operation Lotus was going on concurrently in Delhi and Goa.

‘Operation Lotus succeeded against the Congress party in Goa but not against AAP in Delhi Because of the leadership factor who stop we are a new party and are very idealistic. Congress is an old party.  That is why the hunger for power is more widespread. As far as Congress is concerned in Goa, defection has happened twice. Even In the first instance it was very shocking for a young politician like me. I can understand the condition of Congress workers and the supporters.  They must have felt betrayed,” Naik said.

But for these two happened second time, this will surely be a cause for going into a political depression, he said.

“There is a saying in English that that ‘fool me once, shame on you fool me twice, shame on me’, Congress cannot blame its defectors all the time. It has to take responsibility for this they tried quite well when it happened for the first time. They filed a court case. They got the candidates to pledge before God and got them to sign affidavits. Even they got their heavyweights like P Chidambaram to manage the elections,” the AAP leader said.

”Mr Chidambaram is not a small fry. He’s ex Union minister and has got some stature. People believed him when he said they had taken all the steps and now it was a moral obligation on the MLAs for not defecting. But on the day of defection, he tweeted that ‘if the MLAs decide to leave what can the party do’, is very shocking,” Naik said.

He said that people of Goa should not forgive Congress for this second round of defection.

Jose Miranda pointed out that the affidavits signed by Congress candidates had a legal binding. He enquired about the whereabouts of those affidavits.

“If the affidavits signed by the Congress candidates have a legal binding, then where are those affidavits? What is the legal aspect of these affidavits? Regarding the issue of 97% anti-BJP votes polled in Nuvem,the Congress MLA who shifted to BJP knows for sure that he won't get re-elected anymore,” he said.

It is very difficult to win the battle against defection unless there is a legal deterrent shouldn’t there be a national movement against defection demanding scrapping of current anti defection law in favor of a new node affection law which is very stringent and will parties take the lead?

Valmiki Naik said that his party was all for a new 'no defection’ law. The AAP has got overwhelming majority in Delhi and Punjab it does mean impossible for even the combined might of Amit Shah and Narendra Modi to break the party despite their best efforts.

“We are definitely for a new anti-defection law. In the end though, elections are held in the court of the people. If people give overwhelming judgment either to punish the defectors or support those who stand for honest politics, then this would be the best way reform the issue of defections,” Naik said.

As far as legality of the issue is concerned, he said that it was he who went door to door giving people copy of his affidavit in which he promised not to defect if elected on AAP’s ticket.

“I think the affidavit has a legal value and it should be pursued by the Congress party in fact, recently AAP released its affidavit, since we were the first party to get the affidavits from all our candidates and we had made them public we had given power to people to file cases against me on the basis of this legal effect of it if I betrayed them,” the AAP member said.

Now regarding the Congress he said that photos of MLAs were seen holding the stamp paper along with Rahul Gandhi. But nobody knows what is there in that stamp paper. It demanded that the Congress should make the affidavit public and let the people have the power to file against their MLAs.

Anthony D'Silva said that the nothing will change unless and until the central government takes the initiative. It should have the fire to stop this. States can request the central government. But the law can be amended only by the Centre.

Jose Miranda said mass movements don’t have any impact on the government. The Congress party amended the law for one-third to two-third. 

“Since it was the Congress party which brought in the first anti-defection law, we expect that if the Congress party is in Centre, it will make some changes and bring in a fresh law. But the current government won't do it because they are the ones who are benefiting,” Miranda said.

Ramakant Khalap said that Congress party was the first to take note of what was happening. By 1967, members of various legislative assemblies had defected and that was a blot on the face of India, a country which believed in the ethos of democracy and secularism.

“But then elected members are also smart, they find their ways out also the wordings of the constitutional amendment is baffling. It states if you are a member of the original party, you can’t defect unless that party merges and two third members agree to it. This dichotomy has to be addressed by political parties and the intellectuals,” he said.

According to him, public opinion does count because ultimately everyone has to face the public. 

“A new anti-defection law should be considered that would have a clause under which the moment a MLA or MP wants to defect, he or she has to resign first get re-elected and pay for the cost that the country incurred on his or her election last time,” Khalap said.

What is now happening is when a party decides to split and they have eight or nine members, in a State like Goa which has a total strength of 40 MLAs in the Assembly and a party has around 20 members, in that situation the two-thirds number is very much achievable. In this situation if two-third members decide to split, then the majority party will be always there behind the defectors and use their office to defect.

 Last two defections have been orchestrated by the leader of opposition himself. It was Babu Kavlekar earlier and Michael Lobo now. This time what was interesting is that Congress removed Lobo from post of Leader of Opposition (LOP), but he continued to occupy the seat of Congress Legislative Party leader in the assembly as his position was recognized by the Speaker.

Lobo used the room of the LOP to preside over the meetings held to split the party who stop in that meeting, out of total 11 Congress MLAs only those 8 we’re present who eventually defected this is the irony of the whole situation.

Ramakant Khalap said the issue In law itself has been interpreted differently because of the wordings.. The fourth paragraph of the 10th schedule of Indian constitution states that a member of the House shall not be disqualified when his original party merges with another political party. The merger of the original party of a member of the house shall be “deemed” to have taken place even if, and only if, not less than two-thirds of the members of the original legislative party merges.

“This issue needs to be properly taken up before the Supreme Court to bring out the difference between the original political party which sets up a candidate and the legislative party formed by the elected members and two-thirds of the legislative party merging. One has to follow the other. Therefore law needs a second look,” Khalap said.

“After having witnessed the kind of defections since 1964 – 65, we must have a look at the electoral process itself. In some European countries they don't follow the system of First Pass the Post, as it happens here. For example if 100 voters are there and five people contesting, 60 people vote and one who gets 30% votes gets selected can’t we have a second preference or a third preference vote? And only a person who gets 50% plus one vote should be Alone declared as elected MLA or MP of that constituency,” the former Union Minister said.

“Can we reach this stage at any time in this country? If not, then this kind of horse trading will continue and people will keep jumping the fence,” the senior politician said.

Recollecting an incident from 1990, Khalap said that five MLAs from MGP declared they had merged with Congress the lion symbol of MGP had been frozen. The matter went before the Election Commission. It asked a simple question: if the party has merged then where is the decision? Who are the people who voted on such a motion? What are the provisions in the party constitution for such a merger etc.

“It was revealed that the party had never met, the executive committee never met, working committee hadn’t met, general counsel of the party hadn’t met. Only the party MLAs had met and decided to merge. So the merger was not upheld and the MGP continued to exist,” Khalap said.

Recalling another incident Ramakant Khalap said that same thing happened when Ravi Naik took away seven people from him.

“At that time we had a strength of 18 MLAs in the Congress party. He first defected alone. Thereafter he took two more MLAs. In the third defection he took four more MLAs. So the number became seven and they triggered a defection with one-third members. With that they said MGP had merged. We challenged that. The EC did not recognise the merger,” he said.

The question however is, who will ultimately bell the cat and how does this go forward?

Valmiki Naik said that a strong no defection law is a must. 

“I feel the solution has to be given in the court of people. They have to decide eventually, they have to give overwhelming mandates now also there has to be a strong no defection law will stop we had earlier thought that there was an effective step, but when someone like Advocate Carlos Ferreira, who’s a former Advocate General of Goa, says that the affidavit has no value then it is very shocking. It means he knowingly signed the affidavit,” Naik said.

He suggested that instead of taking notarized affidavit, take notarized resignations of your candidates before the elections and when the candidate gets elected and attempts to defect hand over the resignation to Speaker.

Defection today has become a tool of governance in the country rather than a strategy. The issue is that certain candidates are planted by other parties to contest to either break the votes or even win the election, knowing that the particular candidate may not win on the ticket of the original party. At least two of the eight defectors fall in this category.

Valmiki Naik agreeing with this observation said that indeed last Assembly elections, an ex-MLA of the Congress party had exposed this when he had said it was shown as if the Congress would be forming the next government and that is why BJP leaders are leaving the party and joining Congress and Congress party is giving them the tickets.

“In Bardez Taluka, it turned out to be 100% true. Siolim, Calangute and Saligao. It was all orchestrated by Michael Lobo. He brought these compromised candidates, they won on Congress ticket and moved to BJP after winning,” he said.

Another indicator of this defection was this sting operation that happened few days before the elections where Sankalp Amonkar said on camera that he would shift to BJP and Digambar Kamat will take the decisions. So, all this was orchestrated much before. This is very sad because it is murder of democracy,” the AAP leader said.

The deteriorating political situation of go state and the country as a whole certainly warrants a new anti defection law that would be far more stringent and act as a deterrent against any MLA or MP thinking of defecting after getting elected on another party’s ticket booster but for that there has to be a political will. The question however remains whether or not the political establishment of this country is willing to bite the bullet.


IDhar UDHAR

Idhar Udhar