Two sides of defection : Telangana Today (20-03-2019)

Two sides of defection

Telangana Today (20-03-2019)

Vanam Jwala Narasimha Rao

Quite a few persons including elected representatives belonging to different political parties are joining the Telangana Rashtra Samithi in the recent past ostensibly for a political reunion and polarization. For some it may be unethical but for others it may be an essentiality.  

The reasons for switching over allegiances to TRS stem from the fact that they are being fascinated to the government, to the Chief Minister, to his welfare and development schemes and the way CM is guiding the State towards the path of Golden Telangana. Another factor is that, the political parties of those elected representatives joining TRS, might have failed to play the role of true opposition necessitated in a democratic set-up. It is also not uncommon that even opposition parties do admit people from TRS as and when some of them show interest to do so. Thus, floor crossing from one party to other is only the degree but not the kind and so criticism from any corner should be viewed in that context.

The Law

Taking shelter under and advantage of the Anti-defection Law, the opposition Parties in Telangana, in a bid to get their defected legislators disqualified as members of Legislative Assembly are approaching Courts. The legislators in question have openly issued statements that they would like to work under the leadership of CM KCR for development of their constituencies since they promised this to the voter during elections and shifting allegiance to TRS which is the only alternative to fulfil their promise to the voter.

Though there are enough of anti-defection law provisions in India that could be interpreted either way, well laid conventions are however absent. Functioning of parliamentary democracy depends more on conventions rather than legal provisions.

Different Variants

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 its 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 is not in a position to implement electoral promises is left with no alternative except to quit parent party. In a way the Anti-defection law restricts representatives from voicing the concerns of their voters in opposition to the official party position.

Other Nations

An analysis of GC Malhotra, former Secretary-General of the Indian Parliament reveal that only 7 of 25 non-Commonwealth nations had anti-defection laws and none cost members their seats for voting against their parties. 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. While switching over 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. Even in the United States, with its stable two-party system, some members serving in the House and Senate changed their parties from time to time.

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.

Courts’ Judgements

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 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.

Against this background and under the present circumstances, all those sections seeking development of the State are coming together to work for the welfare of the state. Telangana State has now achieved political and economic stability. This process would go on. May be polarization is an out-and-out inevitability and the need of the hour.