Permission to defect

I am writing this at a time when politics in Karnataka has been in great turmoil as a result of 11 MLAs of the Bharatiya Janata Party (BJP) announcing their decision to leave their party, thereby reducing the state BJP government to a minority. Arguments on the validity of these defections have been heard by a two-member bench of the high court of Karnataka, and then by a third judge on certain points raised by the two judges. When the third judge delivers his judgment on the specific issues referred to him, there will be a greater degree of certainty about the provisions of the 10th Schedule and, to that extent, an improvement in the situation as it prevails today. Yet, what the high court bench decides may not be the final verdict. The aggrieved parties on both sides, the government and the Opposition, are likely to go on to appeal to the Supreme Court.
During the fairly long period of its existence, the 10th Schedule has not succeeded in achieving what was expected of it. Instead, it has facilitated more defections than would have been possible otherwise, and given legal respectability to corruption and lowered the standards of political morality among the leaders of political parties. I would recommend for the consideration of lawmakers that the 10th Schedule, the entire anti-defection law, be scrapped and defection by any elected representative be treated as a breach of trust placed in him/her by the electorate and instantly result in them losing membership of legislature.
When it was first introduced, any resort to the courts was ruled out in paragraph seven of the 10th Schedule. But the Supreme Court’s verdict of November 1991 struck that down as unconstitutional and brought the Anti-Defection Act under judicial review. Some blatant acts of misuse by the Speaker/Chairman of the legislature and open breach of objectivity and fairness by some selfish politicians could be corrected through judicial intervention. However, the abuses of the law continued and the act gained the notoriety of being friendly to unscrupulous politicians.
When the act was brought into force in 1985, many critics objected to the restrictions it imposed on the freedom of choice of the elected representatives. The critics specifically pointed out that parliamentary democracy has functioned smoothly in most of the Western democratic countries without a legal provision against defection.
But the situation in India is quite different. The party system in India is still very weak and deep commitment to any political ideology is yet to be developed by politicians. When India gained Independence in 1947, many people expected that within the period of one or two elections, different political groups in the country will consolidate their position as political parties with separate ideologies and fight elections on the basis of ideologies rather than other extraneous factors.
The general expectation about the formation of political parties in India was that there would be three broad groups, namely, nationalist parties with centrist ideologies, nationalist parties with ideologies of the Right and Left parties with socialist and Communist ideologies. However, the expected regrouping of parties based on political ideologies did not take place and, in fact, the third group of Leftists parties practically failed to take off. In the absence of strong national parties in most parts of the country, several small state parties, based on caste and sub-caste loyalties, have come into existence under some charismatic leaders in the post-Independence decades. They have managed to gather enough support to justify recognition as political parties.
This, indeed, is a dangerous trend and since the anti-defection law has failed to have the desired impact, the only possible remedy seems to be to replace the existing law with a new one whereby anyone who wishes to leave the party which elected him/her should lose his/her seat in the legislature instantly. Even the Independents who got elected should lose their seats if they join a political party. Anything short of this would betray the trust vested in them by the electorate.
Unfortunately, the Anti-Defection Act, though introduced with very good intentions, was implemented in most legislatures in order to serve the personal interests of a few people anxious to acquire political power for themselves. This was made possible by Section 6 of the act, which states that if any question arises as to whether a member of the House has become subject to disqualification, the question shall be referred to the decision of the Speaker or Chairman, as the case may be, and his/her decision shall be final. However, experience soon showed that some Speakers went out of their way, to an extent not contemplated by the framers of the act, to prevent disqualification of the offending members. In the case of disqualification of members of the Uttar Pradesh legislative Assembly a few years ago the numbers were found to be inadequate to term it a split. The Speaker then gave his definition of split as a “continuing” one and not limited to one session of the legislature or one occasion of voting. This led to further addition to the number of defectors and the whole idea of recognising legitimate splits came under disrepute. In some cases the presiding officer did the counting of votes in support of the resolution for disqualification without proper division, in order to support the party in power that had helped him to get elected as Speaker/Chairman.
If one makes an over-all assessment of the benefits derived from the Anti-Defection Act since its enactment, one is inclined to agree with the view that the interests of democracy at this stage of development of the parliamentary system in India would be served better by scrapping the 10th Schedule rather than trying to improve it through amendments or plugging the loopholes as and when they are brought before the judiciary. Some members of the judiciary had entertained strong doubts about the usefulness of such an act, and this is clear from the fact that two of the five judges who heard the defection case had held the view that the entire 10th Schedule was unsustainable.
Since the decision of the high court of Karnataka is expected in a few days’ time, we will have to wait patiently to know what will be the future for this act in our system of parliamentary democracy.
Whatever may be the decision of the court, it is time that the nation starts a debate on the advisability of scrapping the act instead of making piecemeal amendments as and when new problems arise in its implementation.

nP.C. Alexander is a former governor of Tamil Nadu and Maharashtra