When the framers of our Constitution set out making the statues, they had certain moral & ethical standards in mind for the conduct of politics. They could not foresee the 'Aya Ram, Gaya Ram' syndrome, and the lust of power and money which prompted the enactment of the anti-defection law. Today even the anti-defection law has turned out to be inadequate to deal with the situation in Karnataka, which has multiple levels of complications, which will take great drafting genius to formulate in terms of a written law.
Political defections are not new to Indian democracy. No single party alone can be held accountable for what happened in the two southern states of Goa and Karnataka recently, which will have ripple effects in other States (like MP & Maharashtra) as well and lead to political instability which acts a fertile ground for defection.
What does the present anti-defection law say?
The anti-defection provisions in India were first introduced in 1985 through the 52nd Amendment to the Constitution when the Rajiv Gandhi-led Congress government was in power. The legislation was brought in with the view that if the evil of political defections was not combated, it is "likely to undermine our democracy and the very principles that sustain it". It provided that in case a member of a legislature voluntarily gives up the membership of her party (overtly, or even by merely abstaining from voting), he or she will be disqualified from becoming a member of that House until he/she is re-elected afresh.
However, when even this provision in the law did not stop large scale defections, another amendment provided that a member so disqualified could not become a minister unless first re-elected, thus dissuading defections for the sole purpose of immediate ministerial berth in a rival government (Usually, any person can be appointed minister given that he/she gets elected within the next six months.)
Thus, at present, the 10th Schedule of the Indian Constitution also called the Anti-Defection Act states that an elected member of a party can be disqualified on two grounds:
According to the law, at least two-thirds of the party members have to be in favour of a 'merger' for it to possess judicial validity.
The following, however, will not be considered defections:
Meanwhile, the Speaker or the Chairman of the House is the authority to decide on defection cases.
The Karnataka Incident Raises Vital Issues
The incident calls for an interpretation of the three provisions of the Constitution: Article 190 (vacation of seats), Article 164 (1B), and the Xth schedule of the Constitution.
The Judiciary on Anti Defection
The practice so far is that the Courts do not interfere until a decision regarding disqualification is taken. The Xth Schedule is pretty clear that on such particular issues, there is a bar on the jurisdiction of courts.
However, there have been instances when petitioners have approached Courts for a direction to the Speaker for him/her to take an expeditious decision with respect to disqualification. Certain significant judicial pronouncements that have shaped the anti defection law in India are as under:
▪ The law provides for a member to be disqualified if he 'voluntarily gives up his membership'. However, the Hon'ble Supreme Court has interpreted that even in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.[ Ravi Naik vs Union of India, 1994 SC]. In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.
▪ In the recent Karnataka controversy the Hon'ble Apex Court walked the tightrope to maintain the constitutional balance While the rebel MLAs wanted their resignations to be accepted fast by the Speaker and pleaded that they should not be forced to attend the house, the Speaker on the other hand maintained that the MLAs have already incurred disqualification under the Xth Schedule of the Constitution and urged that the Court cannot direct the Speaker to take decisions within a time frame. The Hon'ble Supreme Court passed an interim order giving Speaker as much time as required to decide on the resignations and permitting the MLAs to stay out of the House proceedings if they choose to do so, until further orders.
Problems in the Anti-defection Law
The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgment and interests of his electorate. Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue. Several experts have suggested that the law should be valid only for those votes that determine the stability of the government. There can also be genuine cases where individual MPs or MLAs may be are genuinely not convinced by the line taken by their party. Should he/she kill his/her conscience?
Another major problem with anti-defection law is that the Speaker has been given almost absolute powers. On many instances Speakers have not acted impartially, and have shown their political leaning. Their partisan conduct has lowered the dignity of the office, which is why their decisions are questioned in a Court of law. Apart from this, the law does not specify a time-frame for the Presiding Officer to decide on a disqualification plea. Given that the Courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.
There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions. In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House.
Anti-defection law: The Way Ahead
Although the matter boils down to the anti-defection law, yet more than the deficiency in the law it is the degeneration of the moral and ethical values of the current crop of politicians that to blame for the trouble. However certain suggestions regarding the change in the anti-defection law can be discussed as under:
Aishwarya Pratap Singh, is an Addl. Chief Metropolitan Magistrate in Kanpur Nagar, Uttar Pradesh.
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