Hop on, hop off continues

The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the foundations of our democracy and the principles. With this object, an assurance was given in the address by the President to Parliament that the government intended to introduce in the current session of Parliament an anti-defection Bill.’ This is an excerpt from the Statement of Objects and Reasons of the 52nd Amendment to the Constitution enshrined in the Tenth Schedule, 1985. ‘The provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further, it is also observed that the lure of office of profit plays a dominant part in the political horse-trading resulting in a spate of defections and counter-defections.’ The observation forms part of the 2003 report of the Pranab Mukherjee committee to examine improvements in anti-defection law.

Advertisement

Eighteen years after defections were outlawed, the ‘evil’ continues to exercise and challenge political parties that are compelled to turn to the judiciary to propose a way out of legislative quagmires. Out of the Mukherjee committee’s recommendations arose the last amendment to the law when Vajpayee was the PM. The clause recognising a one-third split in a party was deleted. It also incorporated a suggestion of the YB Chavan panel to cap the size of the council of ministers at the Centre and the states and disallow the defecting lawmakers from joining the council of ministers until they were re-elected in byelections.

Trust the ingenuity of politicians to circumvent the checks and balances. Legislative expert Chakshu Roy, who heads Outreach at the PRS Legislative Research, points out in an article that the removal of the split provision facilitated political parties to engineer ‘wholesale’ defections, leading to mergers with their chosen entities instead of conducting ‘smaller’ retail transactions. In Rajasthan, shortly after the 2018 Assembly polls, six BSP MLAs forsook the party on whose symbol they won and joined the Congress to shore up its wafer-thin majority. In Sikkim, the BJP drew a blank in the last Assembly polls held with the 2019 General Election. Three months on, 10 of the 13 legislators of the Sikkim Democratic Front that was voted out quit, went to the BJP and elevated it to the position of the principal opposition party.

The concept of anti-defection is premised on an attempt to solve a political issue through a legal solution and, therefore, the law failed each time it was summoned to ensure stability. The problem is not that the penalties are not stringent, but that it endeavours to yoke every lawmaker to the leadership of the party on whose symbol they were elected to Parliament or Assemblies. In the bargain, it converts a parliamentary system to a de facto presidential order in which the PM controls the majority party in Parliament as the head of the executive.

The anti-defection law has obfuscated issues. It allowed for the presiding officer to be the sole arbiter of defections. However, given the cloud of partisanship that hangs over an occupant of the Speaker’s chair, it laid itself open to controversies that necessitated legal intervention. A proposal calling on the EC to deal with the law was resisted by parties.

By not prescribing a timeline to adjudicate on defections, the law privileged politics over rules and protocol. When Chandrababu Naidu was the Andhra Pradesh CM, four legislators belonging to the Yuvajana Sramika Rythu Congress Party were inducted into his Cabinet and the Speaker did not act on their disqualification.

The developments in Rajasthan, following the ‘desertion’ by 19 Congress MLAs, with Sachin Pilot as the spearhead, have brought the vexatious law in focus. The dissidents petitioned the HC after the Speaker sent disqualification notices, based on complaints made by the ruling Congress. Pilot and his ‘followers’ have not yet declared their intent to join the BJP, the other pole in Rajasthan, but observers contend there is circumstantial evidence to indicate their tilt. They were housed at a hotel in Manesar in BJP-ruled Haryana. An attempt by the Rajasthan Police to seek out the legislators was foiled by the Haryana Police. Why deploy a strong-arm tactic to safeguard self-professedly non-aligned rebels if there was no vested interest?

There’s a flip side. The ground for serving the disqualification notice was the ‘failure’ of Pilot and the other 18 to attend two meetings of the Congress Legislature Party called by Ashok Gehlot, despite issuing a whip. Can a party serve a whip for decisions that are unrelated to proceedings on the floor of the Assembly? What is the equivalence between not attending a party meet and defying a whip inside the Assembly? The law stipulates five conditions for disqualification: unsound mind, holding an office of profit, acquiring another country’s citizenship, insolvency, and statutory disqualification by the presiding officer.

The HC is expected to pronounce its ruling on the petitions moved by Pilot and the others on Friday. Therefore, it’s useful to look at recent court directions at this juncture. This one from the SC in 2019 after 15 legislators of the erstwhile Congress-JD (S) ruling combine resigned to join the BJP.

First, the court refused to order the Speaker to take a call on the resignations within a deadline. If the resignations were accepted, the coalition would have lost a majority, the size of the Assembly would be smaller and the BJP would comfortably cross the half-way mark. It also said the rebels should not be forced to attend Assembly proceedings; it should be left to them to decide. The directions took away the coalition’s prerogative to issue a whip to their MLAs and disqualify them if they flouted it. The anti-defection law didn’t apply to the Karnataka trust vote. Over to Jaipur.