Since the coming into force of the Constitution (Fifty Second Amendment) Act, 1985 known as the anti-defection Act, our parliamentary institutions have successfully addressed the challenges emerging from various acts of defection. However, there is a need to test both the relevance and the adequacy of the existing provisions in the context of our democratic process unfolding today.
The Act amended Articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and state legislatures and added a new Tenth Schedule to the Constitution setting out certain provisions as to disqualification on grounds of defection.
An exhaustive review of the laws to address the needs of the contemporary political scenario is an agenda of electoral reforms, in which the revisiting the provisions of the anti-defection law forms a central concern. The core committee formed by the government is still grappling with the issues to evolve a consensus acceptable to political parties.
The first major issue that needs immediate redress under this law is that the freedom of speech and expression of the Members of Parliament or state legislatures is not compromised while ensuring the basic party discipline. The second is laying down the ethics for coalition governance which is here to stay as an increasing reality of Indian polity. The third is the issue of regulating the independent members so as to define their obligations in case of various positional ties, for this would go a long way in reigning in the threat and instability brought about by these independent members in today’s times where coalition has become a norm rather than an exception.
In the United Kingdom, where the practice of issuing whips or directive is a usual practice, there exists no law as such on defection. The compliance to these whips is dealt with within the precincts of the political party without calling into question the membership of the legislature. A similar position has been taken in Australia, Canada, France, Germany and Malaysia. On the other hand, Bangladesh, Kenya, Singapore and South Africa, have moved on the lines of India and worked out well-defined laws to deal with the cases of defection.
One significant comment against the anti-defection law of 1985 is that it negates the freedom of speech, right to dissent and freedom of conscience of the members, thereby weakening the very purpose of parliamentary democracy which strongly argues for the primary accountability of members of legislatures to their constituency and their electorate.
One option is to restrict the purview of the whip to only select specifically defined subjects wherein the defiance of the whip issued by a political party will call for disqualification of the member. These could be motions expressing confidence or lack of confidence in the government, adjournment motions that lead to voting and money Bills. A private member’s Bill with similar objectives, tabled Congress MP Manish Tiwari in 2010 is pending in the Lok Sabha.
Equally significant is the process of disqualification. The present provisions empower the Speaker or chairperson of the legislative body to determine the veracity of the complaint filed by political parties for disqualification. Instead the provisions should be amended and the cessation of the membership should become automatically effective once the non-compliance of the whip in above four subjects is recorded.
In all other matters, the party should be competent to issue whip to its members for compliance. However, the conduct of the member should be a matter for determination by the concerned political party within the framework of its constitution, without leading to any disqualification from the legislature.
It has been 28 years since any single party won a majority in the Lok Sabha, and it has been 23 years since coalition governments have become a norm in India. The Constitution does not provide any guidelines for forging such political coalition alliances before or after the polling. As a result, such alliances are again open to unethical bargaining at the time of forming the government, as well as afterwards.
There is an urgent need for tackling the compulsions of coalition leading to paralysis in decision-making. A detailed procedure and regulation for post election coalition of political parties should be prescribed. Coalition formation should be in the form of a joint written agreement by all coalition partners formally submitted to the president/governor. Within this framework, automatic disqualification incurred as a result of voting-against the above four issues should be applicable to all the partners in coalition as well as independent members supporting the government in any given capacity.
Those garnering outside support to the coalition should also be subject to the same discipline of signing a written coalition agreement formally vetted by the governor/president and should incur automatic disqualification in case of defying the whip on the four issues elaborated above.
To ensure that this framework for coalition governance does not become the breeding grounds for an autocratic party paradigm, it is important that a safety-valve measure is kept alive through which coalition partners may oppose and thereby keep a check on the government in cases of necessity. In cases where one-third of the members, including independents, supporting a coalition government go against it on any issue to safeguard and give prior intimation to the president/governor, these members would be exempt from disqualification.
In the current scenario, where no single party is winning a clear majority, the role of independent MPs to consolidate majority support is a growing reality that one will have to gradually learn to accept. It is important to clearly define the various positional ties as well as the attached obligations of independent MPs supporting a ruling coalition. All independents supporting a coalition government should sign and submit a written agreement and should be automatically disqualified if they withdraw support on the four issues discussed above.
To address the needs of the contemporary Indian polity limited amendments to the anti-defection law would take away the compulsion to tow the lines dictated by political party directives. These will also ensure that in order to solicit the support of individual members on any issue or Bill egalitarian discussion, consultation and deliberation towards proper understanding of the merits and demerits of any piece of legislation takes place and the government stability is based on minimal consensus programmes.
Nripendra Misra is ex-chairman, TRAI and director, Public Interest Foundation.