The Hindu : Opinion / News Analysis : Defeating the anti-defection law

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Wednesday, Feb 09, 2005

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Opinion - News Analysis

Defeating the anti-defection law

By K.V. Prasad

NEW DELHI: The decision of the Congress to reward two former Bharatiya Janata Party legislators with ministerial berths in the newly-installed Pratapsinh Rane Government in Goa is perhaps the first calculated move by a political party to circumvent the anti-defection law, which was recently given more teeth.

A year ago Parliament had passed the 91st Constitutional Amendment Act, limiting the size of the Ministry to curb defection and dissuade the practice by disqualifying such legislators/ parliamentarians for appointment to a remunerative political post. Now, the Congress has shown how the spirit behind the 91st Amendment can be nullified.

The provision that a legislator, who gets elected on a party symbol or as an Independent, cannot shift sides without paying a price, either by being denied Ministership or by losing the seat, has been sidelined, albeit with finesse.

On the face of it, Pandurang Madkaikar and Isidore Fernandes were among the four legislators who resigned from the 40-member Assembly, a move that created turbulence for the Manohar Parrikar Government. Within days, the two legislators have become Ministers in the new regime under the Constitutional provision that permits a Chief Minister/Prime Minister to appoint any person of his or her choice in the Council of Ministers. The provision has a rider that such a person would cease to be a Minister at the expiry of six consecutive months if he or she is not a member of Parliament [Article 75 (5)] or the Legislative Assembly/Council [Article 164 (4)].

In the process, the Congress has rewarded legislators who changed sides by avoiding altogether scrutiny under the amended Act. The move cannot be faulted on technical grounds but it does open a window of opportunity for such an unhealthy practice that could be replicated with impunity. A way has been found to get around the lofty principle of discouraging the "Aya Ram Gaya Ram" tendency in Indian politics.

It can be argued that the four MLAs who resigned from the Assembly and of which two will be part — as Ministers — do not have the right to vote. It can be argued further that the legislator concerned has gambled by resigning his/her membership of the House, running the inherent risk of not being re-elected.

The argument is legally defendable but the question is about the larger responsibility of political parties at a time when the need for electoral reforms has assumed importance. Should this deterrent (of losing membership or denying any remunerative political post) not be stretched further to prevent defectors from holding such posts by taking advantage of other provisions in the Constitution.

A politician may argue that all that the Act stipulates is that only a member belonging to any political party or an Independent disqualified from being a member of the House under the 10th Schedule shall also be denied any remunerative political post till the date on which the term of his office as such member would expire or till the date on which he contests an election to a House and is declared elected.

The Act also defines remunerative political post as an office under the Central/ State Government where salary or remuneration for such office is paid out of public revenue. It also extends to a body, incorporated or otherwise, which is wholly or partially owned by the Central/ State Government.

What has just been witnessed in Goa opens up new vistas in States where the verdict is fragmented, especially when either the term of the House ends within the stipulated six-month period or when political parties decide to call for early elections. This would mean the floor-crossing legislators are technically rewarded with little or no fear of any punishment.

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