Recent Rajya Sabha elections witnessed instances of cross-voting, raising concerns over sanctity of the process. This highlights limitations of anti-defection laws in preventing horse-trading. Evaluating constitutional provisions and judicial rulings around these laws can align policy action.
Rajya Sabha Elections
Constitutional Provisions
- As per Article 80, Rajya Sabha members elected indirectly by elected MLAs using proportional representation with state representation
- Total Rajya Sabha strength fixed at 250 members, out of which 238 represent states and union territories
- Polls only conducted if candidates exceed vacancies based on party strength in state assembly
Open Ballot System
- Secret ballot seen encouraging horse-trading and corruption during 1998 Rajya Sabha polls
- Amended Representation of People Act in 2003 made voting open through show of ballots
- MLAs required to display marked ballot to respective party’s authorized agent before depositing, failing which vote is invalid
Recent Cross-Voting Instances
State Assembly Elections (2022)
| State | Party | Cross Voting |
| Uttar Pradesh | BJP | No |
| Himachal Pradesh | BJP | 8-10 of its MLAs |
| Karnataka | JD(S), Congress | About 15 MLAs |
The above data table showcases how cross-voting marred recent Rajya Sabha elections violating party positions.
Anti-Defection Laws
Origin and Provisions
- Anti-defection law, covered under Tenth Schedule, added by 52nd Constitutional Amendment in 1985
- Disqualifies legislators changing parties or disobeying party whips on parliamentary voting
Key Judicial Interpretations
‘Voluntarily Giving Up Membership’
- Supreme Court ruling Ravi Naik vs Union of India (1994) held that formal resignation not necessary to determine defection
- Conduct inside and outside house can be considered including speeches, press statements etc.
‘Whip Not Applicable to Rajya Sabha Polls’
- As per SC verdicts like Kuldip Nayar vs Union of India (2006), elections for Rajya Sabha are not proceedings of Houses
- Hence, parties cannot issue whips and anti-defection law not attracted if member votes against party norm
Issues in Implementation
Vague Wording
- Legal phrases like ‘Voluntarily giving up membership’ are ambiguous, giving arbitrariness in rulings
Bypassing Law
- Instances of legislators circumventing law by deliberately violating party direction without formally resigning
- Later get re-elected on same party ticket, without attracting defection
Election Commission View
The ECI holds that paragraph 2 of the Tenth Schedule, dealing with prohibition of defection, applies only when a member violates whip in connection with proceedings in the Houses. Hence, defection law is not applicable when voting against party lines in Rajya Sabha elections.
Analysis
Inapplicable Anti-Defection Law
The non-attraction of anti-defection penalties on cross-voting in Rajya Sabha elections weakens the law’s intent to curb horse trading induced shifts in loyalty. It also diminishes sanctity when representation distorts verdict given by electorate.
Upholding Federalism
However, some experts argue that applying defection law to Rajya Sabha will undermine the House’s federal character wherein states send independent delegates not bound by same party structures. Dissent voices also caution against blanket binding as it shrinks independence, vital for democracy.
Subject to Judicial Review
Since constitutionality of restricting freedom of speech and expression gets invoked, most experts and past judgements concur that applying anti-defection to indirect elections requires extensive judicial scrutiny regarding proportionality.
The Way Forward
- Enhance moral standards by internal party democracy, leadership opportunities and transparency norms.
- Instituting restrictions like barring candidates who resigned from party from re-contesting on party symbol for next 6 years.
- Seeking larger bench reference to examine whether ruling only applies to direct RS votes, not elections.
- Tighten and specify definitions of defection to reduce arbitrary disqualification scope.
- Make defection trigger fresh election, with partial term protection for stability.
India’s open ballot system for Rajya Sabha was instituted precisely to counter illegal inducements altering poll verdicts. But the prevailing legal position allows MLAs to cross-vote without repercussion.
- Addressing this requires nuanced reforms factoring in representation, judicial principles and practical challenges.
- More debate on moral approaches alongside checks like barring office of profit appointments can also deter shifting loyalties.
