SC is Right: A Tribunal Should Decide MLA’s Disqualification

The Supreme Court passed an order and made a recommendation on 22 January that could change the political landscape of India as it is now contoured. But only if the latter is accepted by the government, which at first sight looks unlikely. Both relate to the powers of presiding officers—the Speakers of the Lok Sabha and legislative assemblies; and the chairpersons of the Rajya Sabha and legislative councils—to disqualify members who prima facie attract the punitive provisions of the anti-defection law.

The Constitution (Fifty-second Amendment) Act was passed in 1985. It laid down the stipulations that would govern the disqualification of members of the legislative bodies mentioned above, if they left the parties on the tickets of which they were elected and joined another party. It also stipulated the conditions under which such ‘floor-crossing’, would not attract disqualification. The act was incorporated into the Constitution as the Tenth Schedule.

The anti-defection law says that any member of a House who has “voluntarily given up his membership” of the party to which he belongs when he is elected will be disqualified from membership of the House, as will members who vote or abstain from voting in a manner contrary to the party’s directions; whips, in other words. Members who do not belong to any party—in other words, independent members—who join a political party after being elected will be similarly disqualified, as will nominated members who join a party.

The exception is that no disqualification will be attracted if one party merges with another, with the acquiescence of no less than two-thirds of the members of the party. Those who do not want to be members of the new entity in the event of a merger will be free to retain their membership of the original party. These provisions do not apply to the Speaker and Deputy Speaker of the Lower Houses of legislative bodies and the elected presiding officers of the Upper Houses. They can relinquish membership of their party, but will not be disqualified so long as they do not join another party.

A digression into the historical record is necessary to emphasise how crucial the anti-defection law is to India’s democracy in the formal political space. Defection or floor-crossing was not unknown before 1967. But its incidence and salience in the political system increased dramatically after the 1967 general elections, when for the first time the Congress lost power in a number of states. It had, of course, lost power to a Communist Party of India-led front in 1957, but that was a one-off. In 1967, it lost power in nine states across the country: Kerala and Tamil Nadu in the south; Bihar, Orissa [now Odisha] and West Bengal in the east; and Haryana, Punjab, Uttar Pradesh and Madhya Pradesh in north and central India. It remained unscathed in western India.

The ‘non-Congress’ governments that were formed in these states were mostly alliances of disparate parties that mostly shared no common ideological or political ground, with the exception of Kerala, Punjab and Tamil Nadu, and were, thus, extremely unstable. Moreover, a crucial, if not the crucial, element in these alliances, with the same exceptions, were parties that had been formed by ‘rebels’ who had left the Congress, usually on grounds related to personal ambitions. This unstable situation triggered a wave of defections that brought down governments with alarming regularity. Bihar, for instance, had nine governments, one snap election and two bouts of President’s rule between 1967 and 1972. This was extreme, but instability plagued all the states mentioned. Individual or group defections were almost always the reason for the fall of governments and the mechanism through which new ones were formed was almost always, again, defection.

In February 1968, the Indira Gandhi government formed an all-party committee on defection to debate measures for containing the problem. It met twice and submitted a report, with dissenting appendices, in early 1969. But the report and putative legislation was shelved, to be revived and finally passed, and incorporated into the Constitution, in 1985. The main arguments for punishing defection was that it distorted the popular mandate and corrupted the political system by inducement: of lucre, office, and other forms of pelf and preferment. The only problem, rarely voiced then, was that restrictions on defying whips denied members the right to vote according to their ‘conscience’ in cases of genuine disagreements with the party line. But since defiance of a whip was rarely driven by ideological concerns, it never really figured in the debate. The situation is the same today.

The power to adjudicate on defections rests with the Speaker of Lower Houses and the presiding officers of the Upper Houses; the Rajya Sabha and the legislative councils in the states that still have them. This unrestricted power has led to the sabotage of the anti-defection provisions of the Constitution. Partisan Speakers can, and do, delay taking decision on defectors to help their parties, say, pass crucial legislation or even survive a no-confidence vote. Not many Speakers have had the kind of courage Somnath Chatterjee showed as Speaker of the 14th Lok Sabha, when he defied his party to vote with the United Progressive Alliance government.

Chatterjee’s defiance of the party whip, leaving aside the merits of the case, points towards one element in a package that could make legislative proceedings more even-handed. Whether or not an independent tribunal headed by a retired Supreme Court judge is formed to adjudicate on questions of defection, the Constitution should be amended, preferably unanimously, requiring the Speaker of any legislative body to resign his or her membership of the party to which he or she belongs, much like the President and Vice-president. A former Speaker/presiding officer may also be banned from taking part in formal politics.

None of these things are going to happen, however. Especially under this regime, because it depends so much on flexing its considerable financial muscles to destabilise or form governments. We have seen this throughout the North-east, in Goa and in Bihar and Karnataka. You could argue that in the North-east, Goa and Bihar, constitutional sanctions have not been breached because either entire parties have been bought or alliances induced. In the case of Bihar, a mandate was subverted, though the Bharatiya Janata Party (BJP) seemed to forget that when they started whining about the subversion of the mandate in Maharashtra. Karnataka presents a case of unalloyed defection through inducement. It is this case that points most clearly to the need for an independent arbiter. The Supreme Court’s intervention was in the context, however, of a Manipur minister who had joined the BJP and was made a minister after being elected on a Congress ticket.

Corruption and subversion are the stock-in-trade of the current regime, but it does not have a monopoly of inducing members of other parties to shift loyalties, whether in accordance with constitutional provisions or in defiance of it. In Rajasthan, for instance, all six Bahujan Samaj Party MLAs formally joined the ruling Congress on 3 January this year. They had announced their intention of doing so last September. This did not contravene the letter of the law. As for its spirit, the jury is out.

If the Supreme Court is serious about containing defection and the corruption that swirls around it, it can explore more forceful options than a recommendation. Unfortunately, that may not be constitutionally and legally possible.

The author is an independent journalist and researcher. The views are personal.