Madhya Pradesh crisis another reminder that India's anti-defection law is rife with problems, needs serious rethink - LiveNow24x7: Latest News, breaking news, 24/7 news,live news

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Wednesday, 11 March 2020

Madhya Pradesh crisis another reminder that India's anti-defection law is rife with problems, needs serious rethink

With Madhya Pradesh government now teetering on the edge after 22 of the ruling Congress' MLAs rebelled against Chief Minister Kamal Nath, the controversial anti-defection law — or simply The Tenth Schedule of the Indian Constitution — is back into focus.

The MLAs who had ostensibly sent their resignations to Nath after Scindia's rebellion will risk losing their seat and primary membership of the party if they vote against the Congress government, causing it to fall.

The law, which was one of the first legislations brought in by the Rajiv Gandhi government after a resounding win in 1985, sets the provisions for the disqualification of elected members on the grounds of defection to another political party.

The law, however, has also been applied in the event when an MP or MLA defies a party 'whip', or in other words, votes against the party line on key issues, not necessarily linked to the survival of the government.

File image of Parliament. PTI

File image of Parliament. PTI

Apart from other loopholes, the law has evoked scrutiny time and again, and also a demand for reforms for resting 'quasi-judicial powers' in the hands of the Speaker (also a member of the ruling political party).

Critics say that the anti-defection law strips the MPs and MLAs of their independent moral compass or decision making powers as they are forced to toe the party line.

In the United Kingdom, from where India inherited most of its Constitution and the Parliamentary system of Democracy, MPs stopped Prime Minister Boris Johnson from shoving Britain into throes of chaos and signing a no-deal Brexit. This was possible because 38 Tory MPs rebelled against their own government and voted for what they felt was right. The US Congressional history is also rife with such examples, with the most recent instance being when three Democrats broke away from party line and voted against Donald Trump's impeachment, while one Congresswoman refused to vote either for or against her party in the crucial vote.

In India, no MP/ MLA can even afford to abstain from voting on key issues — if a whip is issued — without risking disqualification and losing their seat.

In fact, the Supreme Court, in various readings of the Tenth Schedule, has also opined that members who have simply opposed their party or have expressed even issue-based support for another party were deemed to have 'voluntarily given up their membership'.

The latest case in point being disqualification of JD(U) patriarch Sharad Yadav for engaging in anti-party activities, which included criticising the party on public forums on multiple occasions, and attending rallies organised by Opposition parties in Bihar.

Likewise, while dealing with the question of MP's freedom to vote with regard to the anti-defection law, the Supreme Court saw no flaw in the language of the law.

"Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience; nor does it violate any rights or freedom under Article 105 and 194 of the Constitution. [712F-H] The provisions are salutary and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections," the Supreme Court said in Kihoto Hollohan versus Zachilhu and others.

However, interestingly our Constitution drafters didn't intend to give the control of members to political parties. Interestingly, it's only in this law, which was included in 1985, that political parties and chief whips are mentioned in the Constitution.

The law was introduced to put an end to the 'Aaya Ram Gaya Ram' politics, a phrase that became popular in Indian politics after then Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations

However, what it has enabled is a prospect now known as 'mass defection' while individual legislators have lost their power to digress from the party line at a time when no real democratic discussions happen inside political parties about major issues affecting the country. In this way, the law indirectly puts a lawmakers loyalty towards party before the voters of his or her constituency, and fails to incentivise dissent and independent thinking.

The law does not provide sufficient incentive for an MP or MLA to examine an issue in-depth and think through it to participate in the debate. Neither does it forces the ministers to reach out to individual MPs and convince them to vote for a bill on the basis of its merit, which in turn brings down the level of discussions in the House. By issuing a whip, the government merely has to steamroll over any Opposition to pass a bill based on its numbers. A majoritarian government will rarely be required to subject its regulations to scrutiny, and 100 percent guarantee of passage is almost always a given. Whereas, on the contrary, it is difficult to argue with a straight face that all parties and all governments are always wiser than individual members and never conceive a problematic piece of legislation.

Meanwhile, the merits of the law are debatable as defections have not stopped altogether and governments are still toppled amid allegations of horse-trading. It was meant to dissuade members from ditching parties, under whose banner they were elected, for petty gains such as cash or positions, promised by another party. But the law is silent on similar negotiations between ideologically different post-poll allies where discussions often get down to each Cabinet berth and the distribution of plush portfolios and terms of power.

Why does the law penalises the give-and-take behaviour over a ministerial post when an individual legislator does it, but grants the same act legitimacy when a party as a whole indulges in it as part of an alliance formation. In fact, negotiations and power brokering are now integral part of Indian politics.

In fact, in such a scenario when two ideological opponents form an alliance simply to retain power, isn't  it incumbent upon individual MLAs to remain true to their electorate who had sent them to the House because they opposed a certain party. However, as is clear for Yadav's case of being dropped from Rajya Sabha and JD(U), the law is often used to hold 'party' bigger than individual, and sometimes morality.

However, those in favour of the system argue that the party discipline is necessary to prevent sale and purchase of individual votes on issues of contentious legislations, especially when the government has a slim lead. Furthermore, one can argue that the Indian democratic system has evolved to a point where voters elect a party rather than an individual in an election. An individual is unlikely to be elected without the party label, the party money, the party workers and the party preference deals. Therefore, an elected member should not retain claim to their seat when they show 'disloyalty' to the party. It is also not hard to argue that defections, more often than not, happen because of unspoken self-interested motivations rather than a call of conscience.

If India were to look at other democracies to see how they handle defections, it will find that most countries take it very seriously but don't have such severe laws. In fact, India is the only major democracy where voicing an opinion against your party directive can results in such extreme action. In UK, defying a whip means you lose party membership and the Cabinet berth if you were a minister, but not your seat. In Australia too, defiance of a whip is a serious action but a member is not forced to resign, but is expected to. There also exists a concept of 'free vote' where members are allowed by their parties to vote according to their conscience and principles. In India, no such formal system exists but the need for relaxing of laws have been voiced.

The Dinesh Goswami Committee on electoral reforms, opined in 1990, that an amendment should be made to the anti-defection law to restrict disqualification only to those cases, where an elected member defies a whip only in respect of motion of vote of confidence, which has the power to bring down one government or prop up another. The committee also recommended taking away powers of disqualifying a member from the Speaker or the Chairman of the concerned House, because they too are members of political parties and have been known to favour the Treasury benches on several occasions.

However, Deputy Chairman of Rajya Sabha Harivansh Narayan Singh differs from the latter recommendation and insist that the Office of Speaker is the best forum to decide on such tricky matters.

"In my view, under the given circumstances, there could be no better forum than the Speaker. The change required is disposal of such petitions under a stipulated time period," he said, referring to instances where Speakers have made unnecessary delay in deciding such petitions, which resulted in benefitting one side or the other.

He suggested other measures in the anti-defection law including resignation of all defectors and holding fresh elections, not giving any ministerial portfolio or any office of profit if they get re-elected, not counting the vote of the defected member in the formation and fall of government and sending the Speakers to Rajya Sabha if they do not wish to contest elections after the end of their term, PTI reported.

He also opined that the spirit of anti-defection law was to bring down defection. "From 1967 to 1972, the country witnessed around 2,000 defections from various political parties that perhaps led to lawmakers bringing in the 10th Schedule into the Constitution," the Rajya Sabha member said.

He further said that politicians give direction to the society and pointed out that from 1965 to 1985, the era in politics was of defection and it was the prime reason that development works that took place from 1948 to 1965 could not move further as the politics turned from development to self-interest.

With inputs from PTI

March 11, 2020 at 09:18PM

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