Defection, corruption and the law
A special feature of Indian politics is the ease with which turncoats often talk politics. Those who were spokespersons of a particular political party till yesterday will preach the exact opposite on a fine morning, speaking on behalf of a rival party. The public does not seem very uncomfortable with this shift, though it plainly insults their intelligence.
Perhaps, these moments directly epitomise the ethical level of Indian politics. In the eve of the present Assembly elections, there were a large number of defectors across the board. In states like West Bengal, the very contest is founded upon the pre-election repudiations and tactical affiliations. Now, we have to wait for the post-election scenes that can tell us much more on the fine art of floor crossing.
Changing party lines is not a new phenomenon in India. In the early decades of Independence, there were many illustrative cases of political opportunism. B Venkatesh Kumar, in an article in EPW, says: “Between the fourth and fifth general elections in 1967 and 1972, from among the 4,000 odd members of the Lok Sabha and the Legislative Assemblies in the states and the Union territories, there were nearly 2,000 cases of defection and counter-defection. By the end of March 1971, approximately 50% of the legislators had changed their party affiliations and several of them did it more than once—some of them as many as five times.”
We always had our “aya Rams” and “gaya Rams.” The original Constitution did not foresee this trick of the trade and the enormous amount of money and power play involved in it. Therefore, by way of the 52nd Amendment Act to the Constitution, the Tenth Schedule was incorporated. This is popularly known as the anti-defection law.
But the law failed. Clause 2(1) (a) of the Tenth Schedule disqualifies a member of the legislature if he voluntarily gives up the membership of his/her political party. Clause 2(1)(b) broadly indicates that breach of the directive given by the political party would invite disqualification of the member.
Mr Bumble, a character in Oliver Twist by Charles Dickens, famously suggested that the law could be an idiot on certain occasions. Mocking at the Tenth Schedule, politicians could topple and form governments across states by institutionalising defection. Resignation became the new methodology that defeated the text of the Tenth Schedule, which is unable to deal with it. In Karnataka and Madhya Pradesh, many members of the Assembly resigned, overturning the elected governments and installing new regimes. And many of the defectors were successful in the polls that followed. People happily re-elected them under a new political label. Post-election coalitions in Karnataka and Maharashtra also certainly betrayed people’s mandates.
It is a tragedy that defection is no longer seen as unethical. It is taken as an act of political cleverness that often bears brand names like ‘Operation Lotus’.
But if we are serious about the quality of democracy, it is time to rethink our jurisprudence on political defection. Clause 7 of the Tenth Schedule was struck down by the Constitution Bench of the Supreme Court in the Kihoto Hollohan judgment (1992). Clause 7, on the face of it, was unconstitutional for it said that courts cannot even examine the decisions of the Speaker. The Supreme Court said that though it is for the Speaker to decide on the question of disqualification with the discretionary power vested with him, the scope of judicial review cannot be erased. It is Clause 6 of the Tenth Schedule that empowers the Chairman or the Speaker of the House to decide on the question of disqualification. Very often, the Speaker’s action or inaction invited judicial intervention. As political party’s men, they often delayed the decision or refused to decide the issues fairly.
Before the Supreme Court, on 6 April 2021, the Goa Assembly Speaker through his lawyer agreed to pass final orders in the matter of disqualification of legislators who left the Congress to join the BJP. The disqualifications petition on the ground of alleged defection was filed in 2019, which is yet to be decided by the Speaker. The court too is waiting for this decision. In the judgment in Keisham Meghachandra Singh Case (2020), a Supreme Court Bench led by R F Nariman brooded over the impartiality of the Speakers and even said that “Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification … with a permanent Tribunal …”
There is a view that sometimes legislators may have to act in accordance with their conscience. But the top court did not accept this contention in the Kihoto Hollohan Case. We are yet to have a new generation of our “Republicans” voting against Donald Trump, in protest of the Capitol riot. In the US, UK, Germany and several other European countries, legislators are given the freedom of conscience. Even in India, prior to the incorporation of the Tenth Schedule, many lawmakers of the Congress who disagreed with Mrs Gandhi on her stand on Emergency could express their dissent without the fear of disqualification. This “free speech” argument also has some relevance.
Defection in India, by and large, is synonymous with corruption. The anti-defection laws by themselves cannot prevent defection when done by resignation or sometimes, by mere absence at the time of confidence motion. With this understanding, the law on defection needs to be rewritten and an independent mechanism should be designed. In the process, free flow of ideas of the legislators also can be ensured in such a way that it does not amount to unfair political practice toppling the people’s mandate.
Kaleeswaram Raj
(kaleeswaramraj@gmail.com) (Tweets @KaleeswaramR)
Lawyer, Supreme Court of India