Introduction
Anti-defection law throws focus on the establishment of parliamentary discipline and decorum necessary for every self-respecting member. Democracy may be of the people, for the people and -by the people but this comes with certain ethics to be upheld. This has been the objective of the act, but the debate between the proponents and opponents on the vices has been on and going for a while. A member of parliament or the state legislature is chosen to represent his particular group but does it actually come with his obedience to his party by giving allegiance? Why should a person succumb to the party’s decisions and give up his right to expression in the parliament? The Anti-defection law does provide a scope for extensive deliberations, a few of which we’ll discuss in this essay.
Background
Defection is not a problem parochial to India but major parliamentary countries such as the United Kingdom have witnessed this act of depletion of democratic ethics, wherein famous politicians such as Winston Churchill and Ramsay MacDonald have committed it to gain political mileage. While it is not a resplendent achievement to talk about, defection became popular in India only in the latter end of the 1960s,[1] in the birth of the era of coalitions when in 1967 congress lost its majority in 8 states out of 16. Within just 4 years, 142 defection cases were recorded in the Parliament and 1969 in the state legislature. This was the period when the famous catchphrase “Aaya Ram, Gaya Ram” became popular owing to Gaya Lal, a Haryana MLA who defected thrice within 14 days. One other popular defection was that of Rao Birender Singh who went on to become the Chief Minister of Haryana. This was the reason behind the Chavan committee in 1967. [2]
The Chavan Committee was created by the Lok Sabha, presided over by the then union minister for Home affairs Mr. Chavan and constituted other stalwarts such as Mr. MC Setalvad, Mr. Jayaprakash Narayan, Mr. Kumaaramangalam, Mr. Madhu Limaye and Mr. Kunzru. The recommendations of the committee decided first and foremost that there must be a uniform code of conduct to be followed amongst the party members. They also decided that the legislators who defect must be disqualified with immediate effect but cannot be disqualified for contesting in elections unless he defected for monetary gains. After all this, no stand was finalized against defection. These recommendations were to be effectuated in the 32nd amendment in 1973 but found massive opposition. The defection practices did not seem to be diminishing.
These circumstances warranted a law in place to monitor the unethical practice of defection. In 1985, this law was passed amending the constitution (52nd amendment) and adding the tenth schedule to it. According to the landmark Kihoto Hollohan vs. Zachilhu[3], the disqualification decisions are subject to the scrutiny of the court. Following that, reading int section 2(1)(b) of the tenth schedule, it said that a member may be disqualified if he votes or abstains from voting, as against the party’s decisions. It sounds controversial to the fact that this actually curbs a people’s representative from rendering valuable input into the legislative process, right? This law can be said to bring some uniformity in bringing out an overall party actions but it invariably reduces accountability.
Challenges and Merits of The 10th Schedule
Before you read this part of the article, ensure you have read the bare text of the tenth schedule[4] as it is important to read into it to determine the challenges. The Supreme Court in the Kihoto Hollohan case figured out that the bill had not received the requisite support from the parliament before procuring the president’s assent. It straight up started off by nullifying Paragraph 7 of the schedule as the speaker’s role as the adjudicator is like that of a tribunal’s with respect to dispute resolution and the decisions of the tribunal always can be reviewed by the supreme court, therefore exclusion of jurisdiction is not permissible.
Paragraph 2 can be said to hold up the democratic rights of the representatives and such a provision cannot be said to violate freedom of speech and expression under Articles 105 and 194. This brings in the classic debate between the defection and dissent. Dissent can be said to be even the slightest form of disagreement but that does not mean it amounts to defection. In all true values, the motive of the representative must be to uphold his duty and obligation to his constituency and his party and strike a balance. If his vote against the party’s policies will benefit his constituency, he should be allowed to do it. However, whether the anti-defection law looks into the motive, is a huge question. In these cases, where the line is not drawn, it leads to puppet ruling.[5]
It is established that parliament has certain quasi-judicial functions to perform with respect to the impeachment of the president, judges, etc. In these circumstances, the members of the parliament or state legislature are expected to judge the case at hand to their best abilities and make decisions independently. Independent decision making increases accountability but involving the party whip in such decisions would make it a political playground where the objective to rule with a good conscience is absolutely evaded. The same argument is furthered towards the powers bestowed upon the speaker.
The speaker is intrinsically not cutting ties with his party after he is elected the speaker but is expected to be neutral in certain cases. Such is his capacity as an adjudicatory authority. Quasi-judicial powers do not definitely mean they are political, do they? Apart from this, a more glaring challenge with respect to speakers is the absence of uniformity throughout the nation with respect to decision making. This inconsistency will create a duel between not just democracy and its lack of accountability but the anti-defection law and its jarring application. This problem has resulted in speakers deciding that certain members be unattached members[6] and still cast their vote. The tenth schedule is quiet in this regard and it poses a threat to the intent behind the tenth schedule.[7]
One of the several problems that I see with Parliamentary whips[8] is towards how they dilute parliamentary democracy. The essence of a majority party in the parliament is to decide who forms the power center at the union. But going by the philosophy behind the issuance of party whips, and how the members are to ascribe to the code issued by the whip, the majority party can dominate all the important decisions by impinging pressure on all the members to follow uniform decision making. This not only disallows room for creative thinking but is despotic control of the representatives, eroding principles of democracy.[9]
Conclusion
Defection is without a question, a taint on parliamentary democracy but monitoring every degree independent action of a representative member to deem it as defection is wrong. While this law does not do it directly, with interpretation it can be extrapolated. This floor-crossing has been a part of politics since time immemorial as greed for money, power, and recognition takes over the politician at uncalled for times. While a law to govern this is mandatory, the members have to be given a desirable amount of leeway so as to ensure that they fulfill their promises made to their people.
References:
[1]Rohit, Politics of defection,PRS INDIA., Mar. 1, 2011, at https://www.prsindia.org/theprsblog/politics-defection
[2] Pradeep Sachdeva, Combatting Political corruption: A critique of Anti-Defection Legislation, 50 THE INDIAN JOURNAL OF POLITICAL SCIENCE, 157-168 (1989).
[3] Kihoto Hollohan vs. Zachilhu, 1992 SCR (1) 686 (India).
[4] Find the bare text of the tenth schedule here: https://www.mea.gov.in/Images/pdf1/S10.pdf
[5] HR Saviprasad and Vinay Reddy, The law on anti defection: An Appraisal, 11 STUD ADV 116 (1999)
[6] The case of Gokul Saikia as given in SUBHASH C KASHYPATt, ANTI DEFECTION LAW AND PARLIAMENTARY PRIVILEGE 63 (2011).
[7] G. Viswanathan v. Speaker, T.N. Legislative Assembly, (1996) 2 SCC 353. (India).
[8]Julian Baggini, James Graham, The Duel: Should party whips be abolished?, PROSPECT, September 15, 2016.
[9] KN Singh, Anti-Defection law and Judicial Review, 38 JPI (1992).
0 Comments