Opinion Ways to Loyalty

The gradual undermining of the legislator,thanks to a rather draconian anti-defection law,was brought into focus once again by Friday’s judgment of the Karnataka high court. By a two-to-one verdict the court upheld Karnataka assembly Speaker K.G. Bopaiah’s outright expulsion of 11 rebellious BJP MLAs for presenting a petition to Governor H.R. Bhardwaj and rebelling against Chief Minister B.S. Yeddyurappa.This Karnataka vote of confidence is a watershed in the country’s politics and will certainly change the style in which politicians operate to bring down governments mid-term. We will no longer witness the unseemly spectacle of batches of MLAs being whisked away by a rival party to luxury destinations to save them from attempts by their original party to woo them back. Those who want to bring down a government will have to be far more crafty in the future. H.D. Kumaraswamy,who boasted of his intentions before television cameras to attract other disgruntled BJP MLAs,in the end only harmed his own cause. If party rebels show their hand in any way before a confidence vote it would give an excuse to the speaker to purge his party of such elements. Incidentally,the overriding power of the speaker has also been challenged by Amar Singh and Jaya Prada in a petition before the Supreme Court earlier this week questioning a 14-year-old court ruling which disqualifies a rebel legislator if he votes against the party whip,even after expulsion from the party. When the anti-defection law was first passed in 1985 by the then prime minister,Rajiv Gandhi,it was universally hailed. A law to protect our democracy from horse-trading,in which money and incentives played a big part,was welcomed in a nation sickened by the Aya Ram Gaya Ram syndrome. But today the pendulum has perhaps swung too far in the opposite direction. The Karnataka court’s interpretation of the law implies that the speaker has unlimited powers and MLAs and MPs are virtually bonded slaves of the political party to which they are affiliated. Justice N. Kumar,who took the opposing view to Chief Justice J.S. Khehar and Justice V.G. Sabhahit,warned of the dangers of equating dissent with defection. The anti-defection law was amended in 2003 by the NDA government to plug the loopholes which had shown up. With the new amendments conceived by the then law minister,Arun Jaitley,and with the backing of most political parties,the right to split a political party if one-third of its legislators backed the move was scrapped. The new law decreed that two-thirds of the legislators had to agree before a merger with another party was valid. The decision of the chairperson or speaker in a legislature in this regard was final and no court or governor had any right to review the circumstances prior to a legislator’s expulsion — something the Karnataka governor obviously glossed over while directing the speaker to permit the expelled MLAs to vote. Another new clause stipulated that the speaker did not have the power to review his own decision. The law-makers took this precaution,in case,as has actually happened in the past,a presiding officer himself turned eventually into a Gaya Ram. The question is whether the benefits of the anti-defection law outweigh its disadvantages. True,the law ensures some degree of stability in governments elected with narrow majorities,a common feature in today’s fractured polity. It promotes party discipline and does not allow venal politicians to sell themselves to the highest bidder. To some degree it protects governments against the manipulations of vested interests,like the rival mining lobbies in this case,to destabilise unfriendly governments.

But the downside is that anti-defection provisions suppress healthy intra-party debate and discussion,which are the essence of democracy. Indeed,a major reason why debates in Parliament and state assemblies are not taken as seriously as in the past is because a legislator’s position must necessarily conform to the party whip. Legislators do not have the luxury of making up their own minds and there is no question of a conscience vote. If the prime minister was to impose an emergency in the country tomorrow,his own party members would per force have to fall in line. In Parliament there is an increasing tendency for the ruling party to work out an agreement over the passage of a bill with opposition leaders behind closed doors or in parliamentary committee deliberations. The debate on the floor of the House becomes mere window dressing. As former MP Shahid Siddiqui once remarked bitterly,“Parliament is the chessboard on which the pawns are moved,but the hands moving them are elsewhere.”

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Certain proposals voiced recently to amend the anti-defection law may not necessarily eliminate the prevailing flaws in the system. Law Minister Veerappa Moily proposes that the disqualification of legislators should be decided by the president in conjunction with the governor on the advice of the Election Commission,and not the speaker. But,like the speaker,other constitutional offices can also be susceptible to influence and this would also impinge on the legislator’s privilege.

Vice President Hamid Ansari’s suggestion that whips should be limited to bills that threaten a government’s survival,such as money bills or a confidence vote,would expand the space for true debate on policies,though it would not resolve the issue of horse-trading.

In the end,responsible behaviour from our political class cannot be achieved simply by legislation. The Karnataka chief minister,for instance,has got around the anti-defection law simply by “persuading” at least two Congress MLAs to resign their seats so as to stack the numbers in his favour in a no-confidence vote. Eventually,a democracy depends on the good sense of its political representatives and the discerning powers of the voters who elect them. It is pertinent to remember that none of the world’s other,more mature,democracies has an anti-defection law.

coomi.kapoor@expressindia.com