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Harihar Swarup

Guarding against defections.

THE Vajpayee Government's decision to plug loopholes in the anti-defection law is a welcome step. Significant particularly is the scrapping of the provision that recognises a split if the legislators form one-third of the total strength of a legislature party.

The lacuna in the present law has assumed menacing proportions and is used by unscrupulous legislators to wreck havoc on theparliamentary apparatus, particularly in the States. Norms and established conventions are thrown to the winds as a small number of politicians make or break governments or help minority dispensations stay in power.

The Government introduced in the Lok Sabha on Monday the Bill to amend the Constitution's 10th Schedule dealing with the anti-defection law stipulating that anyone giving up membership of his party in the legislature or voting against its whip would be required to resign and contest again.

In the new law, the powers of presiding officers to deal with defections are also proposed to be withdrawn; in fact, they may have no role under the modified arrangements.

According to current thinking, the adjudicatory function is proposed to be given to the court or the Election Commission. The Congress Party, whose support is necessary for the amendment, does not favour conferring such powers on the Commission. It feels that a senior judge of the Supreme Court should be entrusted with the task of deciding defection cases.

Eighteen years of the working of the anti-defection law has done little to curb the phenomenon and that the actions of Governors and Speakers have not been without political bias. The National Commission to Review the Working of the Constitution (NCRWC) has been zeroed in on the role of Governors and Speakers.

It says: "What has been even more disconcerting is that some of the Speakers have tended to act in partisan manner and without proper appreciation — deliberate or otherwise — of the provision of the 10th Schedule... Almost everyone dealing with this subject agrees that flouting people's mandate cannot and should not be permitted — neither singly nor in a group..."

Defections, doubtless, encourage corruption of highest level. Defectors usually are gifted with political positions and other such perquisites so openly that it really makes a mockery of democracy. The amended Anti-Defection Bill would do well to consider particularly the view of the NCRWC that "if a candidate has an insurmountable problem with his party, he should resign and go back to the people for fresh mandate.

Also the disqualification for a defector should be automatic and immediate and his vote should be annulled".

The Review Commission has said that to ensure that the party machinery does not misuse power either; what constitutes defection should be redefined. The whip should be only applicable in situations where the life of the government is in danger and not to all voting as at present under the 10th Schedule.

To be precise, except on voting on the Finance Bill, or confidence motion, whip should not be applied from the point of view of anti-defection law. The question of defection will only arise when a legislator actually changes allegiance or defies party directives on critical issues.

Now that the provision of one-third as a prelude for the split is being done away, this view of the NCRWC needs to be considered in right earnest. Members' rights against the possibility of bossism and settling political or personal scores have to be safeguarded.

When Rajiv Gandhi took the momentous decision in 1985 to halt the menace of defection, motives were imputed to him. It was said that he wanted to ban defections to ensure that his massive majority in the Lok Sabha remained intact. Criticism notwithstanding, his government brought the Anti-Defection Bill because the youngest-ever Prime Minister had made up his mind to end the run of "Aya Rams and Gaya Rams".

The objects and reasons appended to the measure emphatically stated: "The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it".

Several lacunae, however, remained in the legislation and for this lapse those who doubted the intention of the Bill were to be squarely blamed. Mind you, they were men of such eminence as Madhu Limaye and noted jurist Nani Palkhiwala.

Their contention was that denying a member the right to vote in the House, as per his conviction, amounted to negation of the verdict of the people whom he represents. Also Limaye and Palkhiwala and others feared that a blanket ban on MLAs to change sides was too harsh a step and would prevent genuinely ideological split.

Rajiv Gandhi held several rounds of discussions with political parties and as a compromise the clause relating to disqualification of a member following his expulsion from his political party for his conduct outside the House was dropped. Instead a new rule was brought in. It stipulated that the split in a party in Parliament or State Assembly would be recognised if one-third of its members break away.

The original Bill had provided outright disqualification of members who defected to other party or formed their own group.

The Anti-Defection Bill, therefore, underwent changes in 1985 before Parliament put its seal of approval on this very important legislation. Eighteen years of working of the anti-defection law has not fully yielded the desired results.

Even though the anti-defection law acted as a deterrent to habitual defectors, it suffered from serious shortcomings. Since its enactment, it became evident that the anti-defection law has not fully achieved the objective for which it was brought. Defections continued to happen, and worse was the role of Governors and Speakers who acted with political bias to safeguard the interest of their parties.

Even after the passing of the anti-defection law, governments of Nagaland, Mizoram, Tamil Nadu, Pondicherry, Manipur, Goa and Meghalaya fell on account of floor crossing. Madhya Pradesh, Gujarat, Bihar, Andhra Pradesh, Kerala, UP, Punjab, Himachal Pradesh, Haryana and Arunachal Pradesh did not escape defections and the Speakers and Governors did not cover themselves with glory while interpreting the law and the object behind it.

The history of defection dates back to 1948 when the socialist members decided to leave the Indian National Congress and resign their seats to seek re-election.

In 1950, 23 Congress legislators defected to form the Jana Congress in Uttar Pradesh. In 1953, the Praja Socialist Party leader Prakasam defected from the PSP and joined the Congress to form the government in Andhra Pradesh. Another PSP leader, Thanu Pillai, Chief Minister of Travancore and Cochin, crossed floor and joined the Congress.

A total of 97 members defected from the Congress and 419 from other political parties to join the Congress during the period 1957 to 1967. Also during 1967-1971, as many as 32 governments were toppled as a result of floor crossing and shifting of allegiance by legislators.

In 1967 alone, more than 500 legislators crossed floor, giving rise to the politics of "Aya Ram and Gaya Ram". The Opposition got the opportunity in the 1967 general elections to capture power in some States. Unprincipled alliances and defections became the order of the day. In 1967-68 175 MLAS defected from the Congress and 139 defected to join the Congress. In Parliament also, the strength of the Congress was reduced to 283.

Concerned at the malady of frequent floor crossing, a Congress member, P. V. Venkatasubhiah moved a private member's resolution in December 1968 in the Lok Sabha suggesting that the House appoint a committee to consider the problem of legislators changing their allegiance from one party to another. A committee, headed by the then Home Minister, Y. B. Chavan, was subsequently set up with Chavan declaring that "Defections are a national malady which is eating into the vitals of our democracy". The report of the committee was put in cold storage.

Another abortive attempt to curb defections was made in 1973 when a Constitution (Thirty Second Amendment) Bill was brought but could not be passed and lapsed with the dissolution of the Lok Sabha in January 1977.

The Janata Party government, headed by Morarji Desai, brought another Anti-Defection Bill in 1978 but it was opposed at the introductory stage by both ruling party and Opposition members and had to be hastily withdrawn. Rajiv Gandhi, after securing the massive mandate, brought the Anti-Defection Bill in 1985 and ensured its passage by Parliament but many shortcomings remained in the legislation.

Hopefully the amendments to the Constitution will check the menacingly rising evil of defection.

(The author, a former Bureau Chief of PTI, is a Delhi-based freelance journalist.)

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