Manish Tewari | Does the anti-defection law silence voice of democracy?

The ongoing tug-of-war between the National Congress Party’s stalwarts, Mr Sharad Pawar and his nephew Mr Ajit Pawar, has once again shown the obsolete nature of the anti-defection law, and how it has completely lost its relevance.

In 1985, the Parliament amended the Constitution and introduced the 10th Schedule which codified the legislative mechanism pertaining to anti-defection laws in India.The intention behind the law was to combat and surmount the evils of political defection which would undermine the very foundation of our democracy, and the principles that sustain it.

However, the recent instances of mass defections in Maharashtra, Meghalaya and Goa engineered by the ruling dispensation at the Centre clearly demonstrate once again that the law has failed miserably to achieve its legislative intent. The anti-defection law epitomises a flawed legislation with noble intentions.

India’s tryst with the anti-defection law commenced post the Fifty-Second Constitutional Amendment Act of 1985. According to this amendment to the Constitution, a member of a house shall be disqualified if he, or she: (1) Voluntarily gives up membership of such political party from which he was elected to the legislature or, (2) Votes or abstains against the directions of the political party, without the prior permission of the party. The law provided the exception that such disqualification shall not occur if one-third of the members of a House create a separate faction, or merge with any other political entity. This exception was an attempt by the law to maintain equilibrium between the power of the representative to express dissent, and the powers of the political party to protect its political capital. However, this attempt was not sufficient to curb defection. Cases for defection continued, clearly showing that the law failed to achieve its objectives.

The Ninety-First Amendment Act of 2003 attempted to address the aforementioned issue. This attempt, however, also failed to address the issue of defection, and had the unintended consequence of further enhancing the powers of the almighty whip.

As a principled opponent of the 10th Schedule, my opposition is not just regarding its practical failure, but also regarding its jurisprudential incongruity with Indian law. Article 105(1) of the Indian Constitution safeguards the freedom of speech and expression in Parliament. This article was based upon the idea that a parliamentarian should have the freedom of speech to address the grievances of his constituency. However, anti-defection laws curtail this freedom of the representatives, if it is in dissonance with party lines. This is in stark violation to the very idea upon which Article 105(1) was envisaged.

Similarly, the Hon’ble Supreme Court, in its landmark judgment of Kesavananda Bharti vs Union of India, held that parliamentary democracy is a basic feature of the Indian Constitution. However, a party-dominated system that practically vassalises the parliamentarian, who was elected to represent the best interests of his constituency, violates this basic structure doctrine.

It would perhaps be the understatement of our times even if it is articulated with full rigour that the Tenth Schedule of the Constitution has sucked the life breath of democracy out of the legislative institutions. While it has spectacularly failed to achieve its intended and stated objective, that is to curb the menence of the politics of Aya Rams and Gaya Rams, it has ended up turning the legislatures into plazas de toros of whip-driven tyranny. No longer can a parliamentarian exercise legislative freedom according to his conscience, common sense or even constituency.

While a representative is elected by the little person who stands in a long line in the blazing sun or pouring rain once in five years, the legislative life of that representative is run by the party that gave him the ubiquitous ‘ticket’ to run for elections.

When I entered the hallowed portals of the Parliament, the first private member’s bill that I had moved was to relax the archaic and rigid nature of the 10th Schedule. The bill proposed to moderate the powers of the whip and ensure that the whip only be used as an instrument to prevent situations where the stability of government would get impacted.

I have again introduced another private member’s bill: The Constitutional (Amendment) Bill, 2020.  This bill also envisages disqualification of a member of a house on grounds that he or she votes, or abstains from voting in a confidence motion, no-confidence motion, adjournment motion, money bill, or financial matters contrary to directions issued by the party. This helps in ensuring equilibrium between the freedom of a member of House to represent his interest, and the ability of the party to protect itself from any malafide political machinations. It is unfortunate that the government has failed to appreciate the reform, and on the contrary, is weaponising the 10th Schedule to satiate its incessant greed for power and prestige.

On the contrary, the developments in Maharashtra, Goa and various other places over the years, where governments have been toppled over the years using unjust and foul means, have once again underscored that the powers given to the presiding officers are not used in a fair, just and equitable manner to prevent political chicanery and manifest illegality that totally demolish the essence, substance and the very raison d’etre of the Tenth Schedule repeatedly.  There is a need to seriously deliberate upon the role, nature and even the kind of person/persons who should occupy the chair of legislative institutions both in the Central and state legislatures.  The recent disqualification of Mr Rahul Gandhi, despite Article 103 of the Constitution of India vesting the powers in the President of India and not the Speaker of the Lok Sabha, given that the ingrediants of Section 8(3) of Representation of People’s Act, 1951, were far from complete, is legally untenable. No disqualification was possible, much less warranted.

The time has come to repeal the 10th Schedule of the Constitution of India and replace it with something that really works both to curb the menace of defections and ensure that the oxygen of democracy is pumped back into our legislative institutions.