Open Forum

New Delhi, 22 June 2018

Defection Conundrum

A TRIANGULAR CONFLICT

By Dr. S Saraswathi

(Former Director, ICSSR, New Delhi)

The disqualification of 18 rebel AIADMK MLAs by the Speaker of Tamil Nadu Assembly in September last, under the Anti-Defection Law over which a High Court case is going on for the past nine months, could not be settled by the two-judge first Division Bench of the Madras High Court which delivered a split verdict. The Bench consisted of the Chief Justice and another judge. The case will now be taken to a third judge, nominated by the senior-most judge in the court, whose decision will be final.

While the Chief Justice upheld the Speaker’s decision in favour of disqualification of the members, the other judge took an opposite stand. The result is continuation of uncertainty over the present AIADMK government in Tamil Nadu.

“Since this court does not sit in appeal over a decision of the Speaker, it is not for this court to adjudicate the merits of the decision”, said the Chief Justice. The other judge found perversity, non-compliance with principles of natural justice, malafides, and violation of constitutional mandate in the Speaker’s ruling. In his view, the Speaker’s order had given an “artificial majority” to the government and should be set aside.

Recall, the 18 MLAs, through a letter to the Governor, had voluntarily withdrawn support to the present Chief Minister and asked for constitutional proceedings against him. They did not resign from the party, nor recommend any other member for the Chief Minister’s post. There is no ready reckoner to guide the Governor to deal with such internal party differences over leadership.

For the disqualified members, it was an instance of naked bias of the Speaker, who did not commence disqualification proceedings against another 11 MLAs of the party, who voted against the same Chief Minister on the floor test conducted in February and later joined him. This argument had lost its validity as it was not raised at that time.

Another development since the pronouncement of the split verdict is the offer of the Chief Minister to withdraw disqualification of rebel MLAs if they were to return to the parent body.  One prominent member among the disqualified is said to have offered to resign his seat and face re-election.

It is a strange situation that in this case, a unanimous verdict, whether upholding or rejecting the disqualification of 18 members, would have adversely affected the position of the government.  If disqualification were to be nullified allowing the members to return to the Assembly, the government would lose its majority; if upheld, the ruling party would have to face 18 by-elections against powerful rivals.

For the disqualified MLAs, it is a big disappointment except for the possibility of the third judge giving a favorable verdict. Ruling party members naturally rejoice over the decision that at least temporarily extends the life term of the government. Meanwhile, the 18 constituencies go without representation in the Legislative Assembly.

The Chief Justice, who concurred with the Speaker, held that scope for judicial review is limited in defection cases though the Speaker’s decision is subject to review. The Supreme Court had also held that the Speaker was the sole authority in the matter and it can be invalidated only for certain specific causes like violation of constitutional mandate, malafide intention, perverse, and contrary to natural justice.

The case going on for eight months, and having potential to decide the future of a government and the chances of many political parties also expose many practical issues surrounding implementation of the Anti-Defection Law.

Meanwhile, the disqualified members have got some more time to reconsider their decisions in the light of the split verdict. However, the legal outcome of withdrawing their petition will also have to await judicial decision. It will further complicate the issue and expose the inadequacy of the Defection Law in disciplining political parties.

The Constitution grants freedom of speech in Parliament. Under Article 105(2), no MP shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any of its committees. The application of the Anti-Defection Law should not impinge on the rights and immunities under this article.

Tamil Nadu politics reveals the probability of a triangular conflict among the Speaker, the political parties (taken as an institution), and the courts in resolving defection disputes and applying the law. Within each of these, there may occur differences between political parties, and among judges.

Is there anything wrong with Indian law or Indian power seekers or decision makers? Far from that, across the world, parliamentary governments based on party system suffer from similar if not identical problems. In several countries, switching party loyalty is considered as part of competitive party system. Most of the small European countries -- Latvia, Lithuania, Estonia and Czeck Republic -- do not decry defections. There is even an idea that it is healthy for party system.

Britain and the US do not have anti-defection laws. They have few restrictions on parties and members. Switching parties does not receive much attention. In Canada, attempts to introduce anti-defection law have not succeeded; but defections are not common. So also in Australia, though defection after election on a party ticket is frowned as a “fraud on the voters”.

Laws banning defections known as floor-crossing laws is more common in nascent democracies than in established old democracies. Bulgaria, Congo, Ghana, Gyana, Hungary, India, Israel, Mexico, Pakistan, Portugal, Rumania, Samoa, Senegal, Singapore, Sri Lanka, Surinam, Tanzania, Thailand, Tobago and Trinidad, Uganda, Ukraine, Zambia, and Zimbabwe have experience in legal bar on political defection.

A study on defections in various countries has brought out that the link between personal advancement and party loyalty is strongest within established and stable political party system and weakest within new and volatile party systems. Similar is the state of parties in India with a strong democratic organisation and those depending on the hold of a small clique – be it a sole leader, family or caste.

Party switching is found very common in South Africa, Japan, Bolivia, Ecuador, Nepal, Russia, The Philippines, France, Italy, and Brazil. The 1996 Constitution of South Africa banned floor-crossing, but an amendment in 2002 relaxed the restrictions. It was approved by the Supreme Court of South Africa. Many other States in South Africa have passed anti-switching laws.  Similarly, New Zealand adopted an anti-defection law in 2001 with a “sun-set” clause and gave it up in 2005 as scheduled.

How the voters view defection does not bother the parties. It cannot also bother them as most parties are willing to change their alliance partners at any time. As the saying goes, there are no permanent friends or permanent enemies in politics! A study on the Philippines concludes that “parties are merely temporary electoral and legislative alliances designed to maximise the electoral chances of individual politicians”.

Frequent defections reflect lack of “parliamentary fitness” of political parties and “political immaturity” of candidates. Voters, therefore, nurse an idea that there is no meaningful difference between most parties except leadership, that is, management of the parties. The triangular conflict in defection cases yield different solutions adding to the confusion.

(Copyright, India News & Feature Alliance)