Manish Tewari | Scrap defection law, find a new way to ensure probity

The  coup d’état in the Shiv Sena in Maharashtra leading to the ouster of the Maharashtra Vikas Aghadi government once again underscores the complete redundancy of the anti-defection legislative mechanism. The first private member’s bill that I had moved when I entered Parliament was to relax the rigours of the 10th Schedule of the Constitution of India colloquially called the anti-defection law.

Seeing the whip-driven tyranny that drove legislative process had convinced me very early in the day that though well-intentioned this particular legislative fiat had backfired. It had sucked democracy out of the legislative institutions. No longer could Parliamentarians or legislators exercise their judgement according to the dictates of their conscience, constituency or even common sense. They were prisoners of a rather quixotic system where the electors who had put them into public office had no influence upon the legislative choices they were compelled to make.

A brief background may just be in order. The Constitution (Fifty-Second Amendment) Act, 1985, added the Tenth Schedule to the Indian Constitution to proscribe the increasing propensity of party-hopping and defections by elected representatives post elections. The introductory delineations of the statement of objects and reasons of this anti-defection legislative instrument bemoaned this rather sordid situation vividly. It stated, “the evil of political defections has been a matter of political concern. If it is not combated it is likely to undermine the very foundations of our democracy and the principles that sustain it.”

The original anti-defection legislation of 1985 chastised acts of individual defection. It conversely acknowledged the norm of differences in political parties. It mandated that if one-third of the members of a parliamentary or legislative entity created a separate faction or even merged themselves into an analogous political outfit, their membership of whichever legislative organ they were elected to would continue without ‘interruptus’.

Why the bar for defections to be legitimate was set at one-third was elucidated in paragraph three of the Tenth Schedule. It can be described as the doctrine of “honest dissent”, i.e., not less than one-third of the strength of a parliamentary or legislature party could collectively have reservations about the ideological or political direction adopted by their original political party and, therefore, may decide to go their own separate way. However what this law accomplished in reality was transmuting a retail malady into a wholesale malaise. The reasons for splits continued to remain opportunistic not ideological.

The NDA government tried to plug this loophole vide the Constitution (Ninety-First Amendment) Act, 2003. It deleted paragraph three from the anti-defection law that permitted one-third of the elected representatives to separate from original political outfit. The Amendment Act, however, allowed paragraph four to hold the field. It authorised two-thirds of the elected representatives of a political party, should they choose so, to merge with an existing political party or form a new political party as a consequence of such a merger. This would not impact their legislative status under the 10th Schedule. Effectively what this constitutional amendment achieved was raising the bar of wholesale defections from one-third to two-thirds.

All this Constitutional jiggery-pokery, however, does not answer a fundamental question. Did the founding fathers who wrote the Indian Constitution countenance a paradigm whereby the right to choose a representative would vest in an individual elector but what he does with his elected status on a legislative  platform would be hostage to the ditkats of a political party?

Given that in Re. Kesavananda Bharti, the Supreme Court by a 7-6 majority held parliamentary democracy to be basic structure the 10th schedule of the Constitution, it negates very tenet of the basic structure doctrine, i.e., parliamentary democracy both in letter and spirit. The little person who stands in the scorching sun to press that EVM button to elect a representative has really no role for the next five years.

Coming to the private member’s bill that I had introduced in 2010 and have reintroduced again in 2020, labelled The Constitution (Amendment) Bill, 2020 (Amendment to the 10th Schedule), it envisages that whips can be issued only for that legislative business that threatens the stability of government. It would perhaps be instructive to reproduce the salient aspects of the Statement of Objects and Reasons of the 2010 Bill which are pari passu with the 2020 bill. “The disqualification of a member of a House should be only on the grounds that he votes or abstains from voting in the House with regard to a confidence motion, no-confidence motion, adjournment motion, money bill or financial matters contrary to the direction issued in this behalf by the party to which he belongs and in no other case.”

The core of the bill states: “A person shall cease to be a member if he votes or abstains from voting in such House with regard to a motion expressing confidence or want of confidence in the Council of Ministers, motion for an adjournment of the business of the House, motion in respect of financial matters as enumerated in Articles 113 to 116 (both inclusive) and Articles 203 to 206 (both inclusive), a money bill, contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf.” This would free up the legislative space for better and more diligent lawmaking.

However, even with these proposed amendments to the 10th Schedule, the fact remains that over the past 37 years the anti-defection law has failed to fulfil the foremost objective for which it was enacted, i.e., proscribing the menace of defections.

It has, in fact, created another problem by vesting arbitrary discretionary powers in the hands of the presiding officers of the legislative institutions in terms of deciding petitions under the anti-defection law. These presiding officers are not at all autonomous much as the Constitution would want them to function independently. At the end of five years or six years they have to seek re-election on the ticket of the political party that has put them there in the first place. Anti-defection petitions keep languishing without a decision for years on an end if it suits the convenience of the ruling party or the personal predilections of a particular presiding officer as legislators keep merrily party-hopping at times changing multiple parties during a five-year term.

The time, therefore, has come to rip the veneer of this legislation-driven morality. The 10th Schedule must be repealed. Parliament must apply itself to a new modus vivendi for enforcing political probity.