India’s anti-defection law exposes its flawed democracy

One Indian law, the anti-defection law, which nobody remembers most of the time, has suddenly become the flavor of the season. And this happens every time a political drama unfolds in any state like the current political drama in Rajasthan starring Congress party Chief Minister Ashok Gehlot and sacked deputy chief minister and state Congress president Sachin Pilot.

In fact, this is not an ordinary central law enacted by parliament; it is much more important. It was made part of the Constitution of India via the 52nd Constitutional Amendment in 1985 by the Congress government during late Rajiv Gandhi’s tenure as prime minister.

In the 1970s and up to mid-1980s till the enactment of 52nd amendment (also called 10th Schedule of Indian Constitution), Indian politics acquired a new unflattering metaphor – ‘Aya Ram Gaya Ram’  – which characterised frequent defections by elected members of parliament and state legislatures from one political party on whose ticket and symbol the candidate had fought and won the previous election to another. This resulted in the ruling party being reduced to a minority and frequent changes in the government. The sole reason for defection was that the defector thought that he had not got his pound of flesh in the distribution of spoils of office, perks, status, etc. Most of the time, in the next government, they became minister or got some plum and lucrative office of profit declared as not an office of profit by the same lawmaker.

Some reports claim that between 1967 and 1971 general elections, out of 4,000 elected Members of Parliament (MPs), and Members of Legislative Assembly (MLAs)/Members of Legislative Councils (MLCs) almost 50 percent defected at least once. So the problem was indeed real and acute and this change in law did show the desired result as defections did reduce. But it led to another serious problem which persists till date.

From ‘aya ram gaya ram’ it has become a dictatorship of the leaders of political parties which are themselves not subject to Right To Information (RTI) nor internal democracy or transparent elections to elect leadership. Some parties are run by dynasties like Congress Party by Gandhi family (fourth generation in politics), Samajwadi Partry and Bahujan Samaj Party of Uttar Pradesh by Akhilesh Yadav and Mayawati families respectively, and the ruling party in Centre, Bhartiya Janata Party (BJP) though not controlled or owned by any family through birth or marriage, but is said to be remote-controlled by their parent body Rashtriya Swayamsevak Sangh (RSS), headquartered in Nagpur.

It is the same story elsewhere in the country. The DMK party in Tamil Nadu was led by late M. Karunanidhi and is now run by his son M.K. Stalin, the Chautala family of Haryana (fourth generation in politics), Badal family of Punjab, late Sheikh Abdullah (third generation in politics) and their political rival in Jammu and Kashmir, the Mufti family. When BJP accuses Congress to be an “undemocratic and dynastic party,” they forget that they are as dynastic as the Congress, as many leaders in the party are second or third-generation leaders.

The anti-defection law is a short law of six clauses. It has already been amended once in 2003 vide 91st Amendment. Its summary is follows –

* Clause 1 is Interpretation

* Clause 2 is Disqualification on grounds of defection.  Clause 2.2 (a) provides for disqualification of a member if he or she voluntarily gives up the membership of his/her political  party

*Cl 2.1 (b) provides for disqualification if a member votes or abstains from voting contrary to the directive of the party (also called whip)

*Cl 2.2 provides for disqualification if a member joins another political party after the election

*Cl 2.3 provides for disqualification of a nominated member if he/she joins any political party after six months. (It shows that if he does so within the first six months, probably it is permitted. Reason for this is not understood)

*Cl 3 which provides for exemption from disqualification in case of ‘split’ which is defined as breaking away by minimum ‘one third’ members of the entire party. This clause has been removed in 2003 under 91st amendment. Now one-third members cannot split a party. They may face disqualification.

*Instead of the split by one-third members, next clause has raised the bar to minimum two-third members deciding to ‘merge’ with another party. It is not clear whether this group of two-third members of the main party instead of ‘merging’ with another political party in the legislature if they form a new political party whether they will run the risk of disqualification or be safe.

*All presiding officers of all legislatures are exempted from disqualification.

*Next clause, Cl 6, is the most crucial for the present discussion. It provides that the concerned presiding officers, namely speaker or chairman of the house, will be the final decision-making authority in all cases of disqualification of a member.

Power vests with speaker

Vesting of this power on a speaker/chairman, who himself had been an active member of a ruling party/coalition till the other day and had himself won the election on party’s ticket as MP/MLA, to now become the arbiter of the fate of other MPs/MLAs is not correct. The law has wrongly presumed that just because a person gets elevated to a high constitutional office, he will actually cease to have his political preferences, and likes and dislikes. How can a politician who mostly goes back to his party after demitting office be assumed to suddenly become non-partisan overnight? Most problems relating to defections in the last 35 years have arisen due to this wrong presumption.

On assuming the high office of presiding officer of the house, every speaker/chairman makes a solemn declaration that he will always discharge all his duties without any fear or favour to any political party or independents. He promises to always act in a free and fair manner.  It may or may not be happening in any other country, but Indian reality is well known to everybody. Live proceedings of both houses of parliament are telecast every day during the session. Just watch it for one or two hours and you will be exposed to the ‘impartiality’ of the presiding officer whether belonging to Congress/UPA or BJP/NDA or Communists or TMC, SP, BSP, or any other party.

The Tenth Schedule does not lay down any clear rules of procedure to guide the speaker in the discharge of his duties under it. All presiding officers are allowed to frame rules. There is no time limit within which the speaker has to make a decision. A recent example was of the then speaker of Karnataka Assembly during H.D. Kumaraswami’s coalition government of the Congress party and its bitter political enemy Janata Dal (Secular). He dragged the case endlessly for a few months giving ample opportunity to Congress-JDS to get MLAs back. But it did not happen. The coalition fell and the BJP government came into power.  Glaring examples of apparent partisan conduct of speakers have occurred several times in the past. When Chandra Shekhar and 61 other MPs simultaneously changed political allegiance in 1990, no penalty was imposed on them. In fact, Chandra Shekhar also became India’s prime minister for a brief period.

One serious objection to the anti-defection law is the unlimited powers given to every political party to put down dissent or an alternative view. There is no clarity as to how a party is supposed to reach a decision that will then become binding on all its members.  There is no compulsion for a party to take its decisions openly, transparently after a free and fair debate, and by majority vote. Even a small coterie can sit in a closed room, take a decision, which will be binding on all elected members. The elected members may go against this so-called decision of the party only at the cost of losing his or her membership of legislatures under the anti-defection law as is being sought to be done in Rajasthan.

(The writer is a former legal correspondent. The views expressed are personal. He can be contacted at vinod.aggarwal@uniliftcargo.com)