Half-hearted reform

THE ANTI-DEFECTION law contained in the Tenth Schedule of the Constitution stands amended. The Constitution (Ninety-First Amendment) Act 2003 was passed by the Lok Sabha and the Rajya Sabha in December last year. It has since been assented to by the President and notified.

We can draw some satisfaction from the fact that persistent efforts at seeking reforms in the Anti-Defection Law have at last yielded some result. The Statement of Objects and Reasons appended to the Amending Bill reproduces some of the points made in the recommendations of the National Commission to Review the Working of the Constitution (NCRWC) and in the books on `Anti-Defection Law' and `Blueprint of Political Reforms.'

Good as far as it goes. But unfortunately, the amendment does not go far. It is a half-hearted measure. It may help the parties in power at the Union and State levels but is not likely to really solve the problem of defections and opportunistic politics which has weakened our polity and brought instability and made governments dependent on shifting party loyalties.

It was recommended by the NCRWC that (i) the provisions of the Tenth Schedule should be amended specifically to provide that all persons defecting — whether individually or in group — from the party or the alliance of parties on whose ticket they had been elected must resign or stand disqualified from their parliamentary or Assembly membership until they contest fresh elections and win; (ii) the defectors should be debarred from holding any public office of a Minister or any other remunerative political post until fresh election; (iii) the vote cast by a defector to topple a government should be treated as invalid; (iv) decisions in matters of disqualification for defection should vest in the Election Commission instead of the Chairman or Speaker of the House concerned, and (v) the practice of having oversized Council of Ministers should be prohibited by law and a ceiling of 10 per cent of the total membership of the popular House laid down along with a ceiling of 2 per cent of the total strength of the popular House on creating political offices with the rank, perks and privileges of a Minister.

While claiming and appearing to accept these recommendations, the Ninety-First Amendment dilutes their impact potential and leaves several loopholes and escape routes. Thus the ceiling on the number of Ministers is enhanced to 15 per cent, thereby creating a situation in which, at the Union level and in some of the States, instead of reducing the number of Ministers appointing a few more will assume legitimacy. What is worse and more sinister is that no regulation or control at all is proposed over the practice of creating any number of other posts of Cabinet rank or in the Minister of State category. Such posts are created and shall now continue to be created at the will of the powers that be. There is no accountability to anyone and there is no transparency inasmuch as the people never get to know the number of posts created from time to time or those existing at any point of time. According to the NCRWC, the magnitude of the harm thereby caused to public interest, to the efficiency of administration and to the exchequer is, indeed, incalculable.

The Ninety-First Amendment takes away the protection that was provided to group defections on the ground of party splits and one-third of the members of the party defecting. But the other group defection under the merger clause still continues to be protected, i.e. if a group of two-thirds of the members of a legislature party decides to defect to topple a government, to get a share in the Ministry or in return for other material benefits, it can be saved from disqualification by claiming to have decided to merge the party with some other party.

Thus the principle that group defections are as bad as individual defections has not been accepted fully. A group can still get away with the defection if its size is bigger, viz. two-thirds instead of one-third of the strength of the party in the House.

If we decide that all defections are bad, an unambiguous provision, as recommended by the Commission, without any provisos and exceptions, is needed. It should be clearly and categorically laid down that all those who defect from their party shall stand disqualified from membership and shall remain so until re-elected.

The decision in matters of disqualification on grounds of defection is still left in the hands of the Presiding Officers. Certain provisions of the Tenth Schedule have been given entirely different interpretations by different Presiding Officers creating terrible uncertainty and fluidity in the application of the law. Despite all this, it seems there is no will to depoliticise the disqualifying process or to give up the power vested in the Presiding Officers.

Lastly, the amendment does not say anything about the validity of the vote of defectors. In a scenario where the purpose of defection is to destabilise a government, and a group of defectors is used or succeeds in toppling the government, and the House has to be dissolved and fresh elections have to be called, the possible punishment of disqualification from membership would constitute no deterrent. Because all the other legislators would also have to face the elections.

It is necessary that reform measures should not seek ad hoc patch-work solutions or merely create illusions of reform without holistically tackling the basic problem. Half-measures producing a smokescreen of change are worse than no change.

(The writer was a member of the NCRWC and Chairman of its Drafting Committee.)