Vice President Hamid Ansaris observations on internal democracy in our legislatures merit revisiting the Tenth Schedule of the Indian Constitution that seeks to prevent party hopping by our Parliamentarians and state legislators.
He said We need political consensus so that room for political and policy expression in Parliament for a member is expanded. A whip could be limited to bills that could threaten the survival of a government,such as money bills or no confidence motions.
He was alluding to the rigours of the Tenth Schedule that inadvertently restrict the freedom of expression of individual members to serve the higher ideal of political morality,ordained unfortunately through a legislative fiat.
One of the first actions of the Rajiv Gandhi government was to introduce The Constitution (Fifty Second Amendment) Bill 1985 to add the Tenth Schedule to the Indian Constitution. The Schedules mandate was to curb the growing tendency of political defections. In the decades spanning the late 60s to the early 80s,defections became the rule rather than the exception.
The unamended Schedule penalised individual acts of defection but recognised the principle of splits whereby if one-third of the members of a legislative party broke away and formed a separate group or joined another political party,they could continue as members of the legislature. The ingenuity of the immoral converted the retail malaise of defections into a wholesale malady.
The NDA government,through The Constitution (Ninety First Amendment) Act 2003 omitted paragraph three from the Tenth Schedule which allowed one-third of the parliamentarians/ legislators to split from their parent party. However,it left paragraph four in place,which allows two-thirds of the members of a parliamentary/ legislative party to merge with an existing political party or form a new political party. What this constitutional amendment did was raise the wholesale defection bar from one third to two thirds.
Against this background,Ansari underscores the dilemma that is,how to provide more freedom of expression to our lawmakers while containing their opportunism through legislative action.
What may have impelled Ansaris exposition is that the drafting of laws in India remains an essentially non-transparent bureaucratic function. To top it all,political parties routinely issue whips to its members to vote one way or the other on a bill. Treasury members have to vote for every bill and the Opposition is invariably against it,irrespective of the merits. This disincentivises lawmakers from seriously researching,doing lateral thinking or searching for best practices to incorporate into legislation. They become disinterested in constructively contributing towards legislation,which is the principal function of Parliament and instead expand their energies on other procedural instrumentalities like questions,zero hours,calling attention etc.,to try and meaningfully contribute to the national discourse.
The contra-argument is that Parliamentary standing committees have been instituted to enable individual MPs to provide their inputs on legislation so that a broad consensus can be hammered out before a bill enters the house for the final rites of passage. However this argument suffers from an inherent flaw. Since a member of Parliament only serves on one standing committee and the practical possibility of getting onto even one more committee depends upon the availability of space which is invariably non-existent,therefore a MP is handicapped by the inherently constraining committee system.
What then are the actionable points of Ansaris observations on which various political parties need to build consensus? One small amendment needs to be made to the Tenth Schedule and,perhaps,one-odd change to the Representation of Peoples Act can provide an appropriate fix to this problem.
First and foremost,the provisions of the Tenth Schedule need to be tightened by shifting the burden of proof,and automatically disqualifying the lawmaker who violates a lawful direction of the party on whose symbol he has been elected. Rather than wait for a petition to be filed by the political party concerned in terms of paragraph six and the relevant rules of the Tenth Schedule,the onus should be on the member concerned to file a petition for the restoration of his membership.This would obviate the problem of a friendly presiding officer delaying or reserving a decision on a disqualification petition as has been the case in the past,and allowing defaulting lawmakers to complete their terms. Defection may be treated as an electoral malpractice whereby a defector is debarred for six years from contesting any election.
Rather than waiting for the wisdom of political parties to manifest itself through a self-imposed restriction on the issuance of whips to those legislative items that threaten the stability of government like money bills and no-confidence motions,an amendment may made to paragraph two of the Tenth Schedule that inserts a proviso which states That the provisions of Para 2 (1) (b) would only apply to the violation of a direction given by a political party on a no-confidence motion or matters connected to the financial business of the government. This would entail automatic disqualification of the member concerned. Paragraph four should be deleted. This would take care of both stability and expanded legislative space for individual members.
The writer is an advocate in the Supreme Court,MP and national spokesperson of the Congress. Views expressed are personal
