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Deficiencies in defection law

By K. K. Katyal

Pity we are destined to live with political defections that worked havoc with the polity for nearly four decades, upsetting the checks and balances provided by the architects of the Constitution and law-makers. What is particularly worrying is that the system seems helpless and that the loopholes of the law, enacted to check the menace, rather than its express provisions should have prevailed. The anti-defection law of 1985 — this was Rajiv Gandhi's first major initiative after taking over as Prime Minister — was hailed as timely and wholesome then but, soon after — thanks to the "ingenuity" of our politicians — it revealed serious deficiencies. Surprisingly no attempt was made to take remedial steps and the unscrupulous felt free to pursue their narrow, personal ends. The recent U.P. episode — of defection of eight Congress MLAs — shows that the law was used, as on earlier occasions, to provide legal cover for political delinquency of the meanest order. Each one of the institutions — the Congress, the ruling dispensation and the Speaker — cracked in the face of the blow struck by the defectors. The Speaker in particular allowed his august office to be misused for the interests of the ruling side.

This is not the first case of defection and will not be the last unless the relevant legal provisions are strengthened and are rendered foolproof. By now the nature of the loopholes, the manner in which these are exploited, besides the quality of the political culture are clear. It should, therefore, not be difficult to identify the infirmities of the law and make suitable amendments and to take supplementary measures, if required. There are two categories of solutions — one drastic, the other not so drastic. What is important is the political will and this has been missing, be it the Congress, the BJP, the united (or third) front, which was in power at the Centre.

First, the drastic solution — delete the exemption, given to cases of splits by one-third of the strength of a party in the House (of Parliament or State legislature). The demerits of this provision, as shown since the enactment of the law, outnumber its merits. The "split" was exempted to protect the interests of members who may find it difficult to continue in their party because of excessive regimentation or bossism or other problems that could creep into the functioning of the party after their election on its ticket. The members in such situations should not suffer, for no fault of theirs — that was the rationale of the exemption. But, as was known, this concession was so blatantly misused as to make its continuance untenable. Let the simple, straightforward rule prevail — anyone giving up membership of his party in the legislature or voting against its whips, be required to resign and contest, if he or she so desires, again under a new label. There were some shining instances just after Partition (and one before that) when those choosing to cross the floor resigned their membership of the House concerned and offered themselves for contests again. In 1948, when the Congress Socialist Party (CSP) decided to leave the parent organisation, it directed its members in the legislatures to quit and seek re-election. In Uttar Pradesh, for instance, some 50 of them, led by a respected figure, Acharya Narendra Dev, unhesitatingly resigned to fight the election again. And just before Partition, Hafiz Mohammad Ibrahim, a U.P. legislator, resigned and got himself re-elected when he decided to leave the Muslim League to join the Congress. He, thus, legitimised his switch and his entry into the Congress government, headed by G.B. Pant.

The idealism and sincerity of purpose that marked the politics during the freedom struggle are a thing of the past. Also, it is hard to recreate those virtues now when politicians are driven by the craze for power and high positions of influence to amass wealth. In this situation, is there not a case for the legislature to step in — to ensure that the laws of the land are not abused and democratic institutions not disfigured?

Now the non-drastic solutions. The powers given to the presiding officers, the Speaker or the Chairman, to decide whether a member has incurred the penalty of disqualification be withdrawn and be vested in the Election Commission. In a good many cases in the past, the presiding officers were unable to detach themselves from the interests of the party they belonged to. The presiding officers, after all, are political animals and it is not realism to expect supreme detachment from them, especially in cases where the survival of the Government, run by their party, is concerned. Even if they perform their adjudicatory function independently, the aggrieved party could well suspect partnership. And they unnecessarily get involved in political wrangles. They were entrusted with this job in the interest of expedition in decision-taking.

But there were cases where decisions were delayed — avoidably and with a view to giving advantage to one side or the other. Courts could be entrusted with the task but, because of the very nature of their functioning, delays would be the rule rather than an exception.

This amendment could be supplemented with the code of conduct, of the type recommended by the Y.B. Chavan Committee in 1968, — especially these two requirements. One, every defector should be barred from appointment as a Minister for a prescribed period or until he gets himself re-elected. Two, there should be a ceiling on the size of Ministries at the Centre and the States — 10 per cent of the strength of the lower house or 11 per cent in the case of bicameral chambers.

Merely because these ideas were mooted long ago and have become worn out propositions should not debar fresh consideration. But will the political elite, irrespective of party labels, resist the temptation of short-term gains and take an initiative to curb unprincipled floor-crossings?

The Congress, which was at the receiving end in U.P. last month, could not complain. It was this party which inaugurated the era of defections — in the erstwhile Madras State and in Rajasthan and "perfected" this art, as it were, over the years.

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• Pipe-dream?
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• Deficiencies in defection law
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