Does the anti-defection law serve any purpose?

The Supreme Court has held that it is the Speaker’s discretion to decide on the resignations of the 15 dissident MLAs belonging to the Congress-Janata Dal (Secular) coalition government of Karnataka as and when he considers appropriate. What is the right course of action for the Speaker? 

Srinivasan Ramani discusses the political saga in the State with P.D.T. Achary, former Secretary General of the Lok Sabha, and M.R. Madhavan, president of the PRS Legislative Research. Edited excerpts:

Mr. Achary, the Supreme Court ruled on the Karnataka incidents saying that the Speaker has the complete discretion to decide upon the resignations of the MLAs. What does this entail on the resignations so far? While the Speaker also has the duty to verify the voluntary nature of the resignations, does this mean he can question the letter of resignations that were handed over to him in person and even if it is in the prescribed format?

PDTA: Yes, certainly. Under Article 190(3) of the Constitution, the Speaker has to satisfy himself that the resignations are voluntary and genuine and can reject them if he feels they are not. The Speaker has absolute discretion in this matter.

So, in this case, the legislators have sent a sworn affidavit saying that they have resigned. Should this not bring the matter to rest?

PDTA: The Constitution is clear on this. Only the Speaker has the discretion to decide whether the resignations were voluntary or genuine. No other constitutional authority can decide this.

Mr. Madhavan, in the specific case of Karnataka, the legislators have resigned saying they do not have confidence in the current government. The argument being made by their detractors is that these resignations are a ruse as they are doing so to evade disqualification. What is your position on this?

MRM: There are far more fundamental issues to be discussed here. All the institutions including legislature and judiciary here follow certain rules based on the Constitution, but beyond that there are certain conventions and assumptions under which these institutions operate. For example, the Speaker; there are only a certain set of rules to be followed by him/her. Beyond that, there is an assumption that the Speaker is a neutral person and acts in good faith. Unfortunately, that assumption has been broken into pieces in our country.

For example, in the last Parliament, there was a no confidence motion tabled by a set of MPs. The Speaker refused to consider this saying that there was too much disturbance in the Lok Sabha, but during the same period allowed the Finance Bill to be passed without discretion. In the elected House prior to this, a similar incident occurred in the way the reorganisation of state bill (that bifurcated Andhra Pradesh) was passed.

In the States, in the last Andhra Pradesh assembly for example, four MLAs who officially belonged to the YSRCP were in the cabinet led by Mr Chandra Babu Naidu (of the TDP)! Yet the Speaker did not act on their disqualification. What more proof was required to prove that the person had switched sides? There is therefore problem of political culture with the lack of ethics and the judiciary cannot do much about this.

In the Karnataka case, the Supreme Court would have embroiled itself into a political crisis and did the right thing to allow the Speaker the discretion to rule on the resignations.

Mr. Achary, as speakers generally belong to ruling party, they have tended to act less as neutral institutions as several recent actions that were pointed out by Mr. Madhavan show. In some cases, despite clear cases of defections, the Speakers have refused to act. Is this not against the spirit of the anti-defection law?

PDTA: Yes. Speakers have not acted as impartial umpires generally on issues related to defection. There is a basic assumption in the Tenth schedule that the Speaker will decide things on merit and be impartial. Invariably they come from ruling parties (Somnath Chatterjee being the Speaker in UPA-1 was an exception). There have been many issues in which Speakers have acted -sitting on cases of defection, the way they have conducted proceedings etc.

But anti-defection law is something handled by politicians. Also there have been demands that it should be handled by the Election commissions, politicians have resisted it. They being what they are, they have dealt it in their own way.

In the case of Karnataka, there are issues which are quite important. The Supreme Court has said that the Speaker will have the discretion to decide upon the resignations and after that he has convey it to the Supreme Court. I have a reservation with this. The Speaker has the authority to decide upon the resignations and no outside authority should come into the picture. Merely because the matter was brought to the Supreme Court and the court has given an interim order, the Speaker’s decision shouldnt’ be conveyed back to the court. What happens if the Speaker rejects the resignations – and I think there are reasons for doing so in this case? What does the Supreme Court do?

The other part of the order was that the members are free and nobody can be compelled to enter the House. The ruling party and other parties have the right to issue a whip to its members to attend the house and vote on a measure. I am not able to understand this part of the order. Suppose the MLAs who have resigned do not attend the proceedings despite the whip, they should be bound to face the consequences. I think this part of the Supreme Court order is problematic.

Mr. Achary, the penalty for defection is disqualification. Doesn’t the member therefore have the right to join another party after resignation? Can a Speaker prevent the member from resigning only to hold him guilty for defection?

PDTA: I think the petitions under the 10th schedule in these cases were given much before the resignations. Cases for anti-defection were filed before the resignations came up. Suppose the Speaker refuse to accept the resignations, they will continue to remain members of the ruling party (the Congress) and the party has the right to issue a whip and if they dont attend the House, they will face the consequences. That is the law. But in the Karnataka situation, every day something new emerges – a trust vote followed by a possible fall of government and so on. It is difficult to know what lies ahead in such a fluid situation.

Mr. Madhavan, considering the Speaker is not an impartial person in practice, shouldn’t anti-defection law be implemented by an authority such as the Election Commission? Or should there be a timeframe to decide upon actions related to the anti-defection law?

MRM: The Election Commission being impartial is another assumption, probably a reasonable one. But I think looking for another institution to decide on this process is to look for bureaucratic solution to what is essentially a political problem. The whole problem, in my opinion, arises in the anti-defection law itself which goes against the principles of representative democracy. That is the original problem.

If you go back all the way to 1774 to Edmund Burke’s famous speech on representation. He says that the representative should not think of what is good for the country and not just of his constituents. Similarly, there is a famous speech by Winston Churchill, that for him, first came the nation, then the constituents and then the party. What we have done with the anti-defection law is that we have made every MP or a MLA a slave of the party leadership. Invariably have converted a parliamentary system to a de facto presidential system because the head of the executive who happens to be the prime minister also controls the majority party in the legislature. In essence, the executive and the legislature seems to have merged in purposes.

While discussing the draft constitution, Dr. Ambedkar once spoke about the differences between the presidential system in the US and the parliamentary system that he proposes and showed how despite the stability inherent in the former, there was the responsibility of any member, including those of ruling parties, to move motions and question the government of the day in the latter. He said that this responsibility was very important in a country like ours. We have chosen the parliamentary system but the anti-defection law has hollowed the deliberative aspect of representative democracy.

To me there is one solution. Delete the Tenth schedule of the Indian Constitution.

Mr. Madhavan has a very strong view on this that the anti-defection law has reduced the legislator into a figurehead of the party leadership and is against the deliberative nature of parliamentary democracy. But at the same time, there is an expectation that legislators delineate themselves on ideas and issues, which is why they go to elections for a mandate on the party ticket. Defections reduce them to individuals who seek the loaves of power to move from one party to another. Mr. Achary, how would you address these two aspects and what is your view on the anti-defection law as it exists?

PDTA: When the anti-defection law was passed, people were very afraid about the curbs on freedom of expression and speech of the legislators. The evil that was staring us in our face then was the “Aya Ram-Gaya Ram” business which was shaking up the entire party system. In order to put an end to this and to preserve the party system, the law came about, with some important weapons for the political party. But there are some provisions that are problematic.

The law says for example that even if a legislator has been expelled by a party and continues to a member in the legislature, he/she will still be held against the party whip and could be disqualified if he/she voted against the whip’s directions. This is illogical.

The Supreme Court has said that when the party issues a whip, it must be for a very important legislative measure or a trust vote on which the government’s survival is at stake, for example. For occasions, parties need not issue a whip. I don’t think political parties are clearly aware of this. I know instances when the parliament secretariat had to circulate this decision by the Supreme Court on whips to parties. Whips should be used only for crucial issues.

So, both of you will agree to the statement that there is a problem with political culture, that well thought out laws or institutional corrections cannot necessarily address?

MRM: I agree to an extent. We certainly need well thought out laws. But I think on the question of defections and other acts, the larger society and the electorate needs to act on this kind of political culture. Legislators who act in unscrupulous ways should be voted out in subsequent elections. It is that simple. If you do certain things that you should not do, then you will lose elections. That is how democracy is supposed to work.

PDTA: The anti-defection law needs to be looked into again by the law makers and reformed in light of the experience of its implementation since 1985. There have been a large number of cases of defections and how they have been handled. Lately, for e.g., we have seen people moving out of parties in large numbers and eluding disqualification by suggesting that they have merged with their new party. The law is clear, mergers are between two parties and two-third of the members will agree to the merger. Now the practice is the other way around – two-thirds of the members or more move out and then they merge with the new party. The law is made to stand on its head by the legislators. In light of this, if the law, the way it is has to go, I would agree with that.