Opinion Post-independents

The MLAs in Karnataka had argued in the court that each independent member should in fact be treated as a distinct political party having one member that had chosen to be part of the coalition government led by the BJP. But the court held that they would be subject to the provisions of the anti-defection law since the “…facts leading to the conduct otherwise show that the independent member has joined a political party or lost his independent status.”

The petitioners also argued that if joining a ministry in a coalition government leads to an independent member losing “independent” status,it can have serious implications for the future of coalition governments across the country. The court came up with a nuanced argument. It said that,when an independent member becomes part of a government led by a single party,the member will essentially have to implement the policies of that political party. This implies that they have lost their independent status. The court drew a distinction between such cases and coalitions where political parties get together to form a government and each party is not just implementing the will of the other political parties. Often,in such cases,a common minimum programme is drawn up beforehand.

The court dismissed the writ petitions of the five MLAs on the basis of four significant points. First,the independent members did not offer outside support,but instead became ministers in a government led by a single political party. Second,these independent members received and obeyed whips issued by the BJP whip in the legislature. Third,that these members attended meetings of the BJP legislature party. And last,these independent members participated in rallies organised by the BJP under the party flag and symbol. In the court’s view,all of these were enough reason to believe that the MLAs were not independent any longer.

Importantly,this ruling also brought to fore an important issue about voters. The court held that in voting for an independent member,the voters in a constituency have essentially rejected the candidates from political parties. And,therefore,if an independent member became part of a government which implements the programme of a single political party,“…every voter of the constituency should have an opportunity to oppose the illegal defection by bringing it to the notice of the Speaker.” This is different from the traditional understanding that issues of defection are to be dealt with within the purview of the rules of legislatures.

The problem of political defections is not new in India. As far back as 1967,the menace of defections had begun to affect our democratic polity. Between the fourth and fifth general elections,there were nearly 2,000 defections. A committee on defections was set up,which in the late-1960s recommended framing a law to address the problem. The anti-defection law was finally passed in Parliament in 1985 with 418 ayes and nil noes.

There is no doubt that the anti-defection law has resulted in a significant lowering of the number of defections. But,most practitioners and analysts of Indian politics recognise the perverse and perhaps unforeseen negative consequences of this law.

The independent MLAs from Karnataka have reportedly expressed a desire to appeal to the SC. The ingenuity of the Indian politician to constantly push boundaries,explore new ways of effecting defections,try to find any possible loophole in the interpretation of the law,will only mean that the courts will continue to consider cases under this law for many years to come.

Even as we wait to see how this case might evolve under the current law,there is a need to rethink some aspects of the anti-defection law in the overall interest of strengthening our democratic discourse on substantive issues on the floor of Parliament.

The writer is director,PRS Legislative Research,Delhi express@expressindia.com