Dec, 2003

AMENDMENTS TO THE ANTI-DEFECTION LAW MISLEADING
A COMPREHENSIVE POLITICAL REFORM NEEDED

RESTORE THE ORIGINAL STATUS OF LEGISLATORS

The status of legislators in India has been changing since our independence. Earlier, they were “representatives of the people” both in words and its spirit, but now they have reduced to merely the “delegates of their parties.” The status was eroded first in 1985 with the passage of Anti-Defection law in the Parliament which recognised their freedom only in case of a legally valid split. The latest amendment in this law is more stringent. It seems for the time being that the ills of defection can be checked and the country would be saved by its crippling effect on our political system. Nevertheless, since our legislators have been quick in discovering every conceivable loophole in the laws of the land and exploiting it later, it would be naïve to think that defections would be eliminated.
As we understand , the Constitution of India has given us power to send our 'representatives' in the legislatures. When a person is declared elected from a constituency, he becomes the representative of the people of the whole constituency irrespective of the fact that many of them did not cast their votes in his/her favour or did not participated in voting.
However, in course of time, representatives of the people changed their behaviour. They forgot that they are representatives of the people and became delegates of their parties or other self-interests. Their canvas of thought reduced their status in their own mind and in the public. People began perceiving them as the men or women of certain groups or individuals not their own representatives. What a fall!
Then came the age of defections which took the governments to ransom. It created havoc to our political system. The representatives of certain groups or individuals in our legislatures increasingly indulged in their own benefit even at the cost of the people. The governments were toppled and formed. This led to the creation of the anti-defection law of 1985. It was for the first time, a 'political party' was recognised in the Constitution of India, because the law was a constitutional amendment.
It changed the concept of the “representative of the people.” The legislators are supposed to represent the peoples aspirations, their problems and solutions, and protect them, but Anti-Defection law of 1985 made them to act as delegates of their parties that are run by and large undemocratically. In the legislatures , they are not to protect the people but to protect their party interests. Their voice became valueless if they are not in accordance with their party-line, for they were put under threat of losing the membership of the House. However , this anti -defection law gave ample opportunity to defect the legislators of a party by one-third majority. Many loopholes were discovered in the law in between 1995 and 2003, and were exploited by all the political parties including the BJP and the Congress for toppling or forming a government. There were two major causes of this chaos - the greed of money, which later became “suitcase politics” and the ambition of power.
The anti-defection law of 1985 was misused by the Speakers of many states simply because there was no provision in the law for a judicial review. However, a bench of the Supreme Court upheld the anti-defection law by 3:2, but struck down the provision of total exclusion of judicial reviews because it found the provision contrary to the provisions of the Constitution of India.
Nevertheless, vast powers remained with the Speakers. The Speakers of many State Legislatures took erroneous decisions. Some were rectified later by the Supreme Court. In Nagaland , the Speaker rightly recognised a split but the Centre imposed President's rule on the recommendation of the Governor which was struck down by the Supreme Court in 1994 when it was too late. In Goa , the Speaker joined the defectors to become Chief Minister. In 1997 , in the UP assembly, the Speaker did not recognise defection of 12 legislators and one judge thought this decision perverse and referred the case to a constitution bench, but the situation changed with time and the crisis itself was over. In the Lok Sabha, the then Speaker Shivraj Patil did not recognised defection in Ajit Singh's party for over one year, while the legislators were deserting the party one by one and finally became one third for legally valid split. In the Jharkhand Mukti Morcha bribery case Supreme Court ruled that the legislators of the party were immune from prosecution while P V Narsimha Rao was acquitted later. In this way, we saw that the anti-defection law of 1995 had been rendered ineffective by our “intelligent” legislators. It was in itself a proof how the law was ill-conceived.
Even with this experience, our legislators did not rectified the basic presumption on which the anti-defection law is based that they were the property of their party and other interests and therefore they are supposed to protect their interest not the interest of the people. They did not recognise that it should be otherwise. That is why, the amendment of 2003 in the anti-defection law has come.
The legislators may claim that the present amendment is drafted in accordance with the recommendatios of the Commission on Constitutional review. But we should not forget that this commission was constituted by an executive order and did not have sanction of the Parliament. They can also claim, especially the ruling party legislators that the recommendations of the Law Commission and the Parliamentary Committee were incorporated , but how can one explain the fact that the “representatives of the people” were reduced to mere “delegates of the party!”
Let us examine the presumption that with the enactment of the law limiting the number of ministers in the governments will check defection of the legislators who are power hungry. It cannot check split because the other option would be “bigger suitcase.” And such a split can take place safely in between the election results and formation of the government. Legislators of a party may not wait for the formation of government because after that they could be disqualified from the membership of the House.
The political leaderships in all the parties cannot think that their legislator can be silenced and they could not oppose the whimsical lines of the party leaderships in the House merely because the one-third rule has been removed. They cannot hope for containing dissidents in the Legislature party fore more than one loophole. They can be disqualified from the membership of the House only if they leave the party on their own or they vote or abstain against the party line for which there is already a whip.
Let us consider a legal fiction. If a legislator opt for voicing his dissent against his party-line and nothing more. Then what will happen. He can only be expelled from the party and would remain a member of the House. It would be more embarrassing. This indiscipline would grow day by day in the party. It should also be kept in mind that warring persons cannot take care of the responsibility of “representatives of the people.” They are bound to behave otherwise.
The recent amendments did not touch the powers of the Speaker and the question of judicial review of their omissions and commissions. Therefore, there is ample scope of misuse of this amendment.
Then comes the question of stability of a government. It cannot be presumed that by removing one-third rule for valid defection of the legislature party we can have a stable government. We have example before us when a defection gave us stability in the Narsimha Rao regime , and there are also examples when a defection toppled a government as was witnessed in Goa , Nagaland etc. The Speakers saved governments both recognising or ignoring a split, and there are cases when they allowed the defectors to destabilise a government by the same tricks. Therefore, stability of a government cannot necessarily by achieved by this new device.
At last , but not the least, there is a chance of discovery of other new loopholes which would unfold itself in due course, that can defeat the very purpose of this law. We desperately need a comprehensive political reform, not a cosmetic one like this which undermines the very status of our representatives to a mere sepoy of a group or individual on the one hand , and does not give a guarantee of a stable government on the other. It can best give some respite to political parties not the people.
Defection is perceived as a bane, but at times we have seen them saving us from mid-term elections. This is the age of coalition politics. The anti-defection law has no jurisdiction over pre-poll alliances. So the theory of preventing a legislator from ditching their voters by defection from a party does not apply, despite the fact that the people voted for the coalition not for the individual party candidates. Hence the basic philosophy of the anti-defection law is defeated. What will happen when a coalition partner will defect from the coalition which fought the election ? The present law is silent about it. Therefore the present amendment is half-hearted.
It would, therefore, be wise to restore the status of “the representative of the people” in word and spirit, and embark for a comprehensive political reform.( EOM)