The Hindu : Defective politics

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Friday, Dec 26, 2003

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Defective politics

By Rajeev Dhavan

The latest amendment to the anti-defection law is flawed. Defections will not be eliminated.

POLITICS IS kinder to itself than it is to logic. Defective politics led to the anti-defection law of 1985. The anti-defection law led to defective politics. The original design of 1985 came under heavy fire. The Indian Constitution and laws did not recognise the `political party' as an institution of governance except in the Election Symbols Order of 1968. The anti-defection law in the Tenth Schedule of the Constitution made political parties fundamental to the working of legislatures. Drawing strength from Edmund Burke's famous address to his Bristol constituents in 1790 that he was not their delegate but their representative, backbench legislators claimed that the anti-defection amendment made them mere playthings in the hands of their monolithic parties. But in fact, the reverse was the case. The party was a plaything in the hands of the backbencher. Each party became the potential victim of the `defecting' movements of its backbench. Anyhow, the Supreme Court's anti-defection judgment of 1992 upheld the anti-defection law by a slim 3:2 majority — whilst striking down the total exclusion of judicial review by courts as being contrary to the basic structure of the Constitution. But this was not a straightforward victory of stability over democratic speech. The Court hinted that the original 1985 amendment protected a legislator's freedom by permitting one-third of a political party to defect. The dissenting judgment contained justified warnings of the incongruities. Not enough attention was given to the vast powers reposed in the Speaker. But the minority judgment threw the baby out with the bathwater by throwing out the whole amendment.

Despite these judicial blessings between 1985 and 2003, the anti-defection law seems to have created chaos. Every conceivable loophole was discovered and exploited. Each defection led to drama. Some dramas exploded into constitutional crises. The Meghalaya Speaker suspended and later disqualified five Opposition members ignoring an order from the Supreme Court. President's rule was imposed on the State to save the situation. In 1988, the Speaker of the Mizoram Assembly found that one of the nine legislators constituting the `one-third' defection was abroad — thus tentatively viewing the remaining eight as defectors. This was enough for the Governor to dismiss the Ministry and for President's rule to be imposed with the dissolution of the Assembly.

In Nagaland, the Speaker recognised a split, but the Governor decided to impose President's rule under dubious circumstances — for it to be struck down by the Supreme Court in 1994 after it was too late. Even more disturbing were the antics of the Goa defections that gave rise to two Supreme Court decisions in 1993 and 1994. The facts were astounding. The Speaker joined the defectors to become the next Chief Minister. His successor as Speaker refused to adjudicate the matter. Eventually, the Supreme Court upheld the decision to disqualify two legislators, but quashed the decision not to recognise a split. Meanwhile ungainly musical chairs disgraced Goa's governance. In Nagaland, the Governor asked the Speaker to reconsider his decision of disqualifying 10 members — resulting in the Governor's removal from office. In 1993, a mighty confrontation surfaced between the Speaker of Manipur and the Supreme Court in relation to an anti-defection case when the latter ordered the Union Government to bring the Speaker to Court — with a minimum use of force, if necessary. In 1997, the Uttar Pradesh crisis reached the Supreme Court in connection with the Speaker confounding the arithmetic to rule that the 12 MLAs were not defectors. One judge thought this decision was perverse. The matter went to a larger Bench; and, then, to a Constitution Bench on the scope of judicial review over splits as opposed to defections. Meanwhile, time eclipsed the crisis.

What do we make of this alarming state of affairs in the aftermath of the 1985 amendment? These are just some of the crises that nearly brought the Constitution to a standstill . Meanwhile, `suitcase' politics saved and destroyed many Governments including P.V. Narsimha Rao's Congress regime. Even though Mr. Rao was exculpated, the Supreme Court made a decision in 1998 that legislators who took bribes were immune from prosecution because all this was part of their work. Where money did not change hands, defectors were rewarded with ministerial or government posts. Two conclusions stand out from the pre-2003 experience. The first is that the anti-defection law of 1985 failed miserably — to be totally floored and defeated by every possible ingenuity that could have been devised by Indian politics. This total failure made the anti-defection law a de facto nullity. The second is that the fate of any anti-defection law depends on the decision-making ability and integrity of the Speaker. The entire edifice of the anti-defection law collapses if — as in the Goa case — the Speaker himself is an interested party who wants to become Chief Minister. Equally ingenious was the mathematics of the Uttar Pradesh Speaker. But all of them pale in comparison with Shivraj Patil's decision, as Lok Sabha Speaker, in the Ajit Singh Janata Dal defection. More than a year passed by whilst the party members slowly defected until the magic figure was reached. So, while the whole of India knew that a defection was taking place, the Speaker felt that he could not take note of it because it was not brought to his notice. Technically, he may have been right, but was he? In the hands of the Speaker lies the future of the anti-defection law. This will remain so.

The BJP-led Union Government has the habit of rushing into legislation and legal remedies. In 2001-02, it forced the enactment of the Prevention of Terrorism Act — first by an ordinance and then by a joint session of Parliament. Earlier, in 1998, it tried to resolve the differences with the Chief Justice of India on judicial appointments by inviting a reference from the Supreme Court. Following the Gujarat crisis, the advisory jurisdiction was again abused by trying to get the elections advanced. Faced with criticism on POTA, it has now raced through a `sugar coating' amendment without really examining the entire draconian law and its misuse. The Opposition cannot do much because it wants to run with the hare and hunt with the hounds. That is why the new anti-defection amendment was passed with muted dissent. No doubt the changes were suggested by the Constitution Commission, the Law Commission and a Parliamentary Committee. But this does not obviate the need for a proper examination of the changes by Parliament. There is much that needed to be discussed. But the BJP was in a hurry to protect its new Governments in Madhya Pradesh, Rajasthan and Chhattisgarh.

This is not to question the premise that defections cripple a Constitution's working and hold a government to ransom. Even so, certain factors need consideration. Firstly, there is the question of the extent to which a backbench MP should be denuded of all powers of protest. Even after the amendment, the MPs and the MLAs can shout themselves hoarse against a party as long as they do not formally leave it, or vote against it or abstain during voting. Thus a legislator can invite expulsion but not defect. Is this the possible politics of the future? This is all that would be left of conscientious objection and its discontent. Secondly, by removing the one-third rule, coalitions would still be vulnerable if a coalition partner decides to destabilise the government. This may mean more `suitcases' for more people — but will leave the coalition vulnerable. Thirdly, it should be borne in mind that the penalty of disqualification will not take place before government formation. Legislators should be forced to retain their electoral party identity. Fourthly, the disqualification will take effect after the voters have cast their vote or abstained. Money will change hands. MPs or MLAs will not be disqualified from standing for elections again. Fifthly, we are still left with the mercurial figure of the Speaker whose record of the last two decades stands out. There is need for an independent decision-making body that is quick, fair and effective. Finally, even if the amendment downsizes ministries and removes ministerships, the public economy of inducements will enlarge.

Like the original anti-defection amendment of 1985, the present amendment is flawed. Defections will not be eliminated. The stakes will be higher; the monies paid exorbitant. This is no way to amend the Constitution.

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