Institutional fixes and the need for ethical politics

Late night on March 23, while the nation was vexed with the coronavirus crisis, Shivraj Singh Chouhan of the Bharatiya Janata Party (BJP) was sworn in as the Chief Minister of Madhya Pradesh in a small ceremony at the Raj Bhavan. The next morning, he won a trust vote in an Assembly session boycotted by the Congress legislators. The Supreme Court had, on March 19, given an order directing the Speaker to conduct a floor test the next day. Kamal Nath of the Congress party resigned as Chief Minister just hours before the scheduled time for the floor test. With the resignation of the 22 Congress MLAs who subsequently joined the BJP, the halfway mark of the Assembly had reduced, allowing the BJP to stake claim to form the government.

In the midst of the coronavirus pandemic, the BJP machine was still active and able to wrest power in yet another State it lost in the Assembly elections. The rush to hold a floor test seems to be have been driven by the need to capture the reins of the State before a longer coronavirus lockdown. Much of India was already in a lockdown when Mr. Chouhan took oath. Since no other Minister was sworn in, Madhya Pradesh does not presently have a cabinet or a dedicated Health Minister at this time of a health emergency.

New method of bypass

The political skulduggery in Madhya Pradesh represents a new method of bypassing the anti-defection law and toppling elected governments. The H.D. Kumaraswamy-led Congress-JD(S) government was brought down in July last year in a similar manner with 17 MLAs of the ruling coalition resigning and joining the BJP. Under this novel method, a set of legislators of the party in power is made to resign from the Assembly to reduce the total strength of the House enough for the BJP to cross the halfway mark to form government. In the ensuing by-elections, the members who resigned were then fielded as BJP candidates (most of whom have been re-elected in the case of Karnataka). The same practice is likely to be repeated in Madhya Pradesh soon.

This method of mass defection circumvents the provisions of the Tenth Schedule of the Constitution (better known as the anti-defection law) that prescribes the grounds for disqualification of legislators: voluntarily giving up party membership and voting or abstaining to vote against party directions. Though resignation is not mentioned as a ground for disqualification, the Speaker in Karnataka disqualified them for the rest of the Assembly’s term, thereby barring them from contesting the by-polls. While the Supreme Court upheld the disqualification, it stuck down the bar from contesting by-polls. In Madhya Pradesh, since the Speaker has accepted the resignation of the MLAs, the defectors can in any case contest the by-polls.

The recurrence of this model of defection signals the exploitation of the inherent weaknesses of the anti-defection law. While solo legislators jumping ship might have reduced now, “horse-trading” seems to have gone from retail to wholesale. This threatens the underpinnings of India’s electoral democracy since such surreptitious capture of power essentially betrays the people’s mandate in a general election. Further, as the by-polls are held after the alternate political formation has assumed office, the turncoats now have an upper-hand in the election as members of the ruling dispensation.

Rethinking the law

In this context, it is important to examine whether the anti-defection law fulfils any purpose. This law raises fundamental concerns regarding the role of a legislator in a parliamentary democracy. It denies the legislator the right to take a principled position on a policy matter and reduces her to an involuntary supporter of the whims of party bosses. The constitutionality of the Tenth Schedule was challenged for violating the Basic Structure of Constitution with regard to parliamentary democracy and free speech, but the Supreme Court in Kihoto Hollohan v. Zachillhu (1992) in a 3-2 verdict upheld the law while reserving the right of judicial review of the Speaker’s decision.

Also read | When defection is a mere detour for an MLA

Hence, the anti-defection law, on the one hand, severely restricts the freedom of a legislator and makes her a slave of party whips. On the other hand, it has not been able to meet its primary objective of preventing horse-trading and continues to be circumvented to bring down elected governments. This calls for reforms that address concerns at both ends of the spectrum. For addressing the first issue, as the Dinesh Goswami Committee also suggested, the scope of the binding whip should be restricted to a vote of confidence. For addressing the second issue, it is best to institutionalise the Karnataka Speaker’s decision to bar the defected members from contesting in the ensuing by-poll, if not for a longer period, and thereby disincentivise MLAs from jumping ship.

These reforms would require a constitutional amendment to the Tenth Schedule, an uphill task under the current circumstances. Even if these measures are introduced, our politics might come up with other ingenious ways to circumvent them. As the orders in the Karnataka and Madhya Pradesh cases show, the courts also cannot be relied on much to curb defections. We are facing a deeper challenge of the corrosion of India’s parliamentary system, for even in jurisdictions without such anti-defection laws, we do not see “horse trading” and “resort politics”. Hence, beyond institutional fixes, we also need a popular articulation of an ethical politics that causes the public to shun such political manoeuvres.

Mathew Idiculla is a lawyer, researcher and writer based in Bengaluru and a consultant with the Centre for Law and Policy Research

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Printable version | Sep 20, 2020 1:18:09 PM |

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