Overcome the malaise of defection | Opinion - Hindustan Times
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Overcome the malaise of defection | Opinion

ByAbhishek Singhvi
Jul 22, 2020 07:01 AM IST

Create a new framework to govern actions of legislators, election of speaker, role of governor

This is not about Rajasthan (full disclosure; I am arguing for the speaker in the high court) nor Madhya Pradesh or Karnataka, though paradigms can be extrapolated from these. This is state- neutral, party-neutral, and politics-neutral. It is about an institutional malaise called defection and party-hopping. It is about every major stakeholder — governor, speaker, defecting Members of Parliament (MPs)/Members of Legislative Assembly (MLAs), ruling party defenders and Opposition opportunists — having mud on their face. It is about the need to root out this “constitutional sin” by root surgery.

Politicians have found ways to beat the law and engage in the ‘constitutional sin’ of defection(Mohd Zakir/HT PHOTO)
Politicians have found ways to beat the law and engage in the ‘constitutional sin’ of defection(Mohd Zakir/HT PHOTO)

The body politic needs to decide whether acting like Brutus or changing parties midstream for the loaves and fishes of office is sinful. Innumerable Supreme Court (SC) judgments say it is, as do the elaborate parliamentary debates preceding the anti-defection law enacted in 1985. But the “true” Indian politician has circumvented the best-drafted laws through inimitable and unsurpassable jugaad. Here is how.

First, if the ruling party wants to prolong itself in office with support from other parties’ legislators acting against their own parties, individual pliant speakers are available to never decide disqualification petitions against them for years. The SC’s lament in the Manipur case (2020) is an example. Worse was Tamil Nadu, which footballed the issue between the high court and a non-deciding speaker for years, while a minority government continued. The SC decided the issue by not deciding in time.

The second jugaad is the engineered resignations of legislators in a ruling dispensation by a desperate Opposition promising them lucrative ministerships if they ensure that the Opposition comes to power. It helps that these ”toppling” agents are entitled to at least six months of ministerial portfolios in the new government, even if they fail to get re-elected.

Third, there is always the office of governor readily available for misuse. The governor seems to be at his master’s bidding, wrongly ready to interfere by giving unsustainable directions to Speakers to have floor tests within 48/72 hours, only to assist the defectors to topple the government and preclude the speaker from discharging his 10th Schedule duties.

Fourth, clear defectors, even after being subjected to ongoing disqualification hearings before the speaker, are advised by lawyers to file no-confidence motions against the speaker under a misconception of law that the SC, in the Nabam Rebia case, rendered a speaker lame-duck and paralysed him the moment a no-confidence was filed against him. Rebia only cautioned against speakers already facing prior and serious pending no-confidence motions from deciding disqualification issues against their accusers. Otherwise, every pending and prior disqualification proceeding could be rendered infructuous by the simple expedient of defectors filing subsequent no-confidence motions against the speaker, rendering the 10th Schedule a dead letter.

While individual speakers can certainly be aberrant, generalisations are dangerous. It is forgotten that the speaker is the sole persona designata who can decide disqualification petitions under the 10th Schedule. His job is non-transferable and non-delegable.

What is the solution? The common citizen may be forgiven in saying “Plague upon all your houses” to all stakeholders in such a pessimistic scenario. Idealistic lectures and sermons, by commissions/ committees or even the SC, is not going to change the nature of the beast, which is actuated by personal, pecuniary and partisan considerations. But there is a comprehensive solution.

One, we should abolish all artificial distinctions which, under the 10th Schedule, earlier had endless wrangles between defection and split, and the later amendment, which now legitimises defections if you are able to induce two-thirds to join you. The 10th Schedule should be replaced with a simple provision itemising all activities, culled from established SC cases, both inside the House and outside it, which will automatically disqualify you and force you to be re-elected in case of anti-party activities.

Two, no one who resigns or is disqualified under this new listing, should be allowed to be a minister or corporation post holder, for six months or a year even after re-election. It is instructive to go back to a parliamentary standing committee, which had observed: “..there is possibility for defection ..as the defectors can be accommodated in the Council of Ministers through the other route i.e., by offering a seat in Rajya Sabha/Upper House in the States. Stringent law, which debars defectors who later become Members of the Rajya Sabha to get the post of Ministership, is required.”

Three, we should start electing speakers, as in the old British tradition, by all or majority of parties unanimously selecting an appropriate person before each general election as presiding officer and not putting up a candidate against such a pre-selected speaker. The moral and political authority of such a person will be humongous.

Four, the governor should be constitutionally and explicitly barred from anything but a ceremonial role in the legislature to prevent meddling in the running of the House and the government.

British administrator John Owen once said, “Be killing sin or it will be killing you.” The time has come to kill this constitutional sin. The Indian experience of the dynamics of defection and anti-party activities validates William Shakespeare’s negative recognition of pessimistic reality: “Some rise by sin, and some by virtue fall.” India’s constitutional democracy must put right this upside-down balance.

Abhishek Singhvi is a senior third-term sitting Member of Parliament; eminent jurist; former chairman, Parliamentary Standing Committee on Law and Justice; former Additional Solicitor General of India; senior national spokesperson, Congress
The views expressed are personal

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