Anti-Defection Law yet to serve its purpose:Vanam Jwala Narasimha Rao

Anti-Defection Law yet to serve its purpose

Vanam Jwala Narasimha Rao

Taking shelter under and advantage of the Anti-Defection Law, the ruling Congress Party in Andhra Pradesh, in a bid to get four of its legislators disqualified as members of state legislature, issued show-cause notices to them alleging that they are engaged in antiparty activities. All the four along with another more than half-a-dozen Congress Party MLAs over a period have openly aligned with YSR Congress. However the party leadership decided against only four for obvious reasons. Simultaneously the (Deputy) Speaker has also been alerted through a petition seeking their disqualification. The decision is awaited but the process has begun. Show cause notices were served on them by the (Deputy) Speaker also. Apart from this decision of disqualification of three more MLAs elected on Telugu Desam party Ticket is also pending. One of them resigned even before party complained on him. Two of the Praja Rajyam Party MLA s are also facing similar problem. Though there are enough of anti-defection law provisions in India, unfortunately none of the Speakers of any State Assembly did lay down good conventions that could be adopted by others. Functioning of parliamentary democracy depends more on conventions rather than legal provisions.

The Anti-Defection Law, in the form of Tenth Schedule to the Indian Constitution, passed in 1985 through the 52nd Amendment during Rajiv Gandhi regime to combat evil of political defections seldom achieved it purpose in any state. India in fact enacted different variants of anti-defection laws in 1973, 1985, and 2003. The 2003 law provides that a person can be disqualified from serving in parliament for “voluntarily giving up the membership of his original party”. Furthermore, the Indian law permits parliamentary expulsion simply for voting (or abstaining from voting) “in the House contrary to any direction issued by the political party to which he belongs”. The Indian law on defection “seeks to provide safety measures to protect both the government and the opposition for instability arising out of shifts of allegiance”.

It is argued by many that the Law while deterring defections might lead to suppression of dissent in political parties. An elected member when feels that his party (as in the case of Pocharam Srinivasa Reddy elected as MLA on Telugu Desam Party Ticket and resigned later) failed to implement electoral promises is left with no alternative except to quit party meaning loosing the membership. In a way the law restricts representatives from voicing the concerns of their voters in opposition to the official party position. The decision on disqualification is vested in the Speaker who is invariably the member or nominee of the ruling party and he or she tends to favor accordingly. It is suggested by many that the deciding authority should be an autonomous body like Election Commission.

An analysis of GC Malhotra, former Secretary-General of the Indian Parliament on “the established laws, rules, practices and procedures and conventions” in 40 Commonwealth countries, with brief references to anti-defection laws in 25 other nations revealed, that, laws in 23 countries penalize with parliamentary expulsion for changing parties and that 7 of the 23 also prescribed expulsion simply for voting against their parties. Only 7 of 25 non-Commonwealth nations had anti-defection laws and none cost members their seats for voting against their parties. Malhotra concluded that the law has “succeeded, to some extent, in checking the menace of defections in India’s body politic,” but that “comprehensive legislation” was needed to make the law more effective. The International Institute for Democracy and Electoral Assistance identified 41 nations with laws against parliamentary party defections. Only 14 percent of established democracies require parliamentary members to forfeit their parliamentary seats if they change political parties.

There have been different views on Anti-Defection Laws wherever they are in existence. Kenneth Janda of the Northwestern University of USA extensively analyzed the subject from several dimensions. According to him, Anti-defection laws are rare in established democracies but common in nascent democracies. The general impression is that, in certain respects, the degree of democracy is clearly associated with the occurrence of restrictions on political parties. The most important line of demarcation seems to run between established democracies and other states. Established democracies display few restrictions on parties, all other groups of states considerably more. Kenneth Janda quoted several examples from various countries. While switching is relatively rare in most countries, it has been common in countries like South Africa, Japan, Bolivia, Ecuador, Nepal, Russia, the Philippines, France, Italy, and Brazil. Comparing the party systems of Brazil and Chile with those in Finland, Ireland, and Italy, it is observed that in these European countries, relatively few politicians change parties.

Even in the United States, with its stable two-party system, 20 members serving in the House and Senate from 1947 to 1994 changed their parties while in office-16 switching from Democratic to Republican. This steady erosion of Democratic representation helped the Republicans-the decided minority party in Congress following World War II-gained strength until they won control in the 1994 election. In a celebrated reversal of the trend, one moderate Republican Senator (Jim Jeffords of Vermont) switched to independent in 2001 when the Senate was equally split between the parties. He then voted with the Democrats to choose the Senate’s leaders, giving the Democrats control of the chamber under Republican President George Bush. After Nicolas Sarkozy defeated the Socialist candidate in the spring of 2007 and became President of France, several high-ranking Socialists left their party to become officials in Sarkozy government. Instances of British and Canadian legislators crossing the floor are there though not many. Party switching occurs in western democracies, even in modern times.

There are advantages and disadvantages with the Indian Anti-Defection Law. It provides stability to the government by preventing shifts of party allegiance, ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party policies. It also promotes party discipline. By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people. It interferes with the member’s freedom of speech and expression by curbing dissent against party policies.

There are judgments on disqualification of Members and the Tenth Schedule by the Supreme Court from time to time. On whether the right to freedom of speech and expression is curtailed by the Tenth Schedule, the Court observed that, the provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution. On whether only resignation constitutes voluntarily giving up membership of a political party, the Court said that, the words “voluntarily giving up membership” have a wider meaning. An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party.

On several other issues the Court observed that: Once a member is expelled, he is treated as an ‘unattached’ member in the house. However, he continues to be a member of the old party as per the Tenth Schedule. If he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party. On granting finality to the decision of the Speaker is valid, the Court said that, to the extent that the provisions grant finality to the orders of the Speaker, the provision is valid. However, the High Courts and the Supreme Court can exercise judicial review under the Constitution. Judicial review should not cover any stage prior to the making of a decision by the Speakers. The Speaker of a House does not have the power to review his own decisions to disqualify a candidate. Such power is not provided for under the Schedule, and is not implicit in the provisions either. Further the Court said that, if the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties. In such a case the Court can review the Speaker’s decision making process under the Tenth Schedule.

In the report “Ethics in Governance” of the Second Administrative Reforms Commission, it is noted that “Defection has long been a malaise of Indian political life. It represents manipulation of the political system for furthering private interests, and has been a potent source of political corruption.” The report further notes that “there is no doubt that permitting defection in any form or context is a travesty of ethics in politics.”

The National Commission to Review the Working of the Constitution recommend that “the power to decide on questions as to disqualification on ground of defection should vest in the Election Commission instead of in the Chairman or Speaker of the House concerned.”The Election Commission and “Ethics in Governance” report also recommended that the issue of disqualification on grounds of defection should be decided by the President or the Governor concerned under the advice of the Election Commission, instead of relying on the objectivity of the decision from the Speaker.

Let the (Deputy) Speaker of AP Legislative Assembly Nadendla Manohar, before whom a decision is pending on disqualification of Legislators belonging to three political parties, initiate a process and deliver the judgment that becomes “The Best Practice” and an “Established Convention” of Indian Anti-Defection Law. End