Democracy and its defectors

While defections, that is, the phenomenon of an elected representative leaving the party on which she was elected and joining another without re-contesting an election, is a concern for the Indian polity, it is not only an Indian affliction. In fact, it is a problem of many democracies. In the US, it is described as 8216;party switching8217;, in New Zealand 8216;waka or canoe-hopping8217;, in Ecuador 8216;camiseteza8217; or change of shirt, in Trinidad and Tobago 8216;floor crossing8217;, and in Morocco 8216;political nomadism8217;.

In all these countries, competitive politics causes representatives to switch parties, normally from the opposition to the government side, as happened some weeks ago in Sri Lanka when 18 MPs switched from the UNP to join the ruling UPFA. In Canada in March 2006 when a liberal MP switched sides to join the Conservative government it caused such a public furore that the case was placed before the Ethics Commission which found that no impropriety had been committed.

8226; In terms of democracy, how should one see defections?

Defections could be seen as a struggle between an institution and a process. Fierce competition drives politicians to strategise ways of coming to power, defections being one possible way. Institutions regulate such competition to ensure that it takes place within certain norms, that the process of coming to power is consistent with democratic principles.

While intense competition in politics is good for democracy because it reduces the scope for the abuse of power, it must be regulated to ensure no one has an unfair advantage. The story of defections in India is a story of such competition and also of such evolving regulation. Over five decades, it has resulted in the evolution of the institution of Parliament where today, as a result of the latest Supreme Court judgment, the distinction between 8216;split8217;, which is allowed, and 8216;defection8217;, which is not allowed, is now clearly available.

8226; Which are the important stages of such institutional evolution?

Defections have been an aspect of post-independence politics from the very beginning. Subhash C. Kashyap in his book Anti-Defection Law and Parliamentary Privileges 2003 states that between the fourth and fifth General elections in 1967 and 1972 from among the 4000-odd members of the Lok Sabha and legislative Assemblies in the States8230; there were nearly 2000 cases of defection and counter defection. While all states have experienced defections, the states of Goa, Haryana and Manipur have been in the forefront.

The important stages through which the institutional evolution has taken place are: one, the setting up of a committee on defections in Parliament under the chairmanship of Home Minister Y.B.Chavan in 1968; two, the passing of the 52nd Amendment in 1985, and the accompanying 10th Schedule to the Constitution, that established the provisions for tackling the menace of defections and that made the Speaker of the Assembly the ad judicatory authority to decide on cases of defection; three, several cases in the Supreme Court, from the famous Kihoto Hollohan versus Zachillu case to the most recent case in UP, where the provisions in the law are clarified, procedures defined, and issues of jurisprudence addressed, and, four, the enactment of the 91st Amendment Act of 2003 that prohibits wholesale defections that had emerged as a result of loopholes in the 52nd Amendment. Now those desirous of party-hopping, during the tenure of a house, have to resign and re-contest.

8226; What are the features of the legal contest?

The 52nd Amendment had, in its keenness to ban defections but allow the expression of genuine political differences, provided for splits in the party that would be permitted. If one-third members left it would be treated as a 8216;split8217; in the party and not as a defection. The Speaker of the Assembly was the authority to decide whether defections had taken place. These two provisions produced a politics where speakers, in most states, began to act in a blatantly partisan manner disqualifying those who left their party and delayed giving a decision on those who, in contrast, had joined their party.

In the period from 1985 to 2003 we saw great perversions in the procedures adopted by the speakers in the exercise of their powers. The Supreme Court had to intervene several times to redress issues of the violation of natural justice where 8216;due process8217; had not been followed.

8226; What are the key issues for our consideration?

This struggle between institution and process has raised the issue of further reform on two grounds. The first is with respect to partisan speakers. Such partisanship has eroded the sanctity of the legislature and made it, what JP feared it would become 8212; a place for horse trading. We need to restore the dignity of the office of the Speaker and that may mean establishing the tradition of a Speaker who, once elected, ceases to be a member of any political party and represents the interests of the whole House as in the UK. This would require an all-party consensus on the unanimous election of the Speaker. The second issue is the agreement that defectors would not be given ministerial positions or chairpersonships of corporations at least for six months from the date of their joining another party. This would increase the costs of defections. It is not too high a cost for democracy.

The writer is professor and senior fellow at the Centre for the Study of Developing Societies, Delhi