De jure, defecto

As the presiding officers8217; annual conference draws to a close, a major topic of discussion is the need to review...

As the presiding officers8217; annual conference draws to a close, a major topic of discussion is the need to review the anti-defection law. Of course, the law is being reviewed the umpteenth time; no previous review has produced rational results. It has been used often since being introduced in 1985; and yet there appears to be no consensus on how to control its deleterious side-effects, including the proliferation of political parties by splits and mergers, the use of money to encourage mass defections such as are protected by the law, the naked incursion of courts into what should be the domain of various speakers, and, above all, the freezing of Parliamentary creativity, innovation and excellence by heavily constraining the freedom of speech of legislators inside and outside legislatures. The presiding officers need to think about a few points in particular, pertaining to how far the law and its implementation have drifted from the original intent of those who framed it.

The 52nd Amendment to the Constitution contained a single, pure declaration:nbsp;8220;This Bill is meant for outlawing defection.8221;nbsp;Nobody anticipated that it, in the course of time and events, would outlaw instead freedoms of speech and vote of legislators. The key question now is how to reform the anti-defection law to outlaw defections without stepping on the freedoms of speech and vote of members. nbsp;

The most abused provision in the anti-defection law is the disqualification of members on ground of voluntarily giving up membership of their political parties. Courts have provided nebulous interpretations of the phrase; and speakers and chairmen have construed the meaning of the words 8220;voluntarily giving up membership of a political party8221;, with political factors firmly in mind.nbsp;This is the provision that unacceptably constrains the freedom of members of legislatures to speak in, and outside, the House. Outlawing defection is not inextricably linked to constraining freedom of speech.nbsp;Freedom of speech and of dissent against party authority inside and outside the legislature has, therefore, to be restored to end the enslavement of Parliament unknowingly created by the law over the past two decades.nbsp;

The central mistake is that the law does not realise that what it wishes to contain 8212; political instability 8212; is caused by voting, and not by speech in the House. Curbing legislative coups must be correlated to the casting of votes for those coups; but if every time members vote they are constrained by a whip, the point of individual members would be lost.nbsp;Such whips should be issued only on confidence motions; governments8217; stability should never be tested on any other motions, such as Cut Motions and so on. If the demands for grants are cut or increased by the House it should never be deemed as censure of the government. So long as governments believe budgets have to be passed untouched by legislatures, the sad spectacle of governments controlling the Houses instead of the Houses controlling the governments will continue.

The present law does a bad job of addressing its own objectives. In particular, it does not rule out the possibility that defectors might first cross-vote and then be disqualified 8212; while their vote stands.nbsp;This is in spite of the Supreme Court ruling in Rana vs Maurya that orders of the speakers and chairmen under the Tenth Schedule needed to be retroactive. The law, as it stands, acts counter to stability: if a member votes even once against his party whip, even on innocuous motions, he stands disqualified for the term of the whole House.nbsp;Thus, instead of dealing with his cross-vote, the law is dealing with the member. Instead, to effectuate the original intent of the law, cross-votes on confidence and no-confidence motions should be ignored;nbsp;cross-votes on other motions must be respected.

Consequently, political parties must be allowed to split and merge outside the legislature in accordance with the election commission8217;s standard procedures and not the whims of the presiding officers of legislatures. The authority on the party status of a member should be the EC.

Thus reform is necessary, and must be deep. It should restore constitutionally guaranteed freedom of speech, action and association of legislators; it should reduce and rationalise the regulation of their votes; it should act on votes retrospectively, and the EC should be restored to paramount status.

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The writer is secretary of the Goa legislative assembly 038; author of 8216;Ideas for an Alternative Anti-Defection Law8217; expressexpressindia.com