A defective law

Recent events in Goa and Jharkhand have exposed the inadequacy of the anti-defection Act, as amended by the NDA government, to stem unprincipled defection by legislators.

V. VENKATESAN in New Delhi

THE Tenth Schedule of the Constitution, containing provisions for disqualification on the grounds of defection, was added through the 52nd Amendment Act, 1985, soon after the Rajiv Gandhi government came to power at the Centre following the Congress' massive electoral victory in the wake of the assassination of Prime Minister Indira Gandhi. The Congress had won 401 seats in the Lok Sabha, and the government's motives in introducing the legislation were suspect. Doubts were expressed whether the then ruling party wanted to freeze its majority and split the Opposition parties through the law.

Whatever the motives, there was no disagreement about the intentions of the law: if the evil of political defections were not combated, it would undermine the very foundations of democracy and the principles that sustain it. Constitutional practice since then, however, has revealed that the Act hardly helped the nation to achieve this goal, with political parties and presiding officers making use of several loopholes in it to serve partisan ends.

The National Democratic Alliance (NDA) government introduced a key amendment to this Schedule a year ago, through the 91st Constitutional Amendment Act. It omitted Paragraph Three of the Schedule, dealing with exemption from disqualification in case of splits constituting one-third of the strength of the parent party. The rationale was that the Paragraph allowed wholesale defections, while the rest of the Schedule declared individual defections illegal.

The Act also limited the size of the Ministry and sought to disqualify defector-legislators from being members of the House and from being appointed to a remunerative political post, including that of a Minister.

The then Law Minister, Arun Jaitley, reasoned during the debate on the Bill in Parliament that with the omission of Paragraph Three, the presiding officers of State legislatures and Parliament would be left with very little discretion and scope for its abuse, and their decision would be entirely based on the facts of individual cases.

JAITLEY'S optimism was apparently misplaced, as shown by the recent political developments in Goa and Jharkhand.

In Goa, two Bharatiya Janata Party legislators filed petitions with the Speaker, Vishwas Satarkar, seeking the disqualification of an independent MLA, Filipe Neri Rodrigues. The petitions, filed on the eve of BJP Chief Minister Manohar Parrikar's move to seek a confidence vote in the Assembly on February 2, contended that Neri had joined the BJP in 2002. Neri was a Minister in the Parrikar government and had resigned only two days before the vote. He had also withdrawn his support to the government.

Satarkar issued a notice to Neri to appear before him in connection with the petitions. Neri, however, decided to appear after the confidence vote. Finding that he could not be disqualified without following due process, the Speaker ordered his removal from the House soon after it met on February 2 on the grounds of disorderly behaviour, and sought to deprive him of his right to vote against the Parrikar government. The Speaker's questionable action led to a melee in the House, resulting in Parrikar winning the confidence vote under doubtful circumstances.

Although Governor S.C. Jamir's decision to dismiss the government soon after and install a Congress government led by Pratapsinh Rane was debatable, it was the Speaker's partisan conduct that showed the BJP as equally guilty in flouting the law. If Neri had indeed "joined" the BJP in 2002, how did the Speaker overlook his disqualification under the Act since then?

Sub-clause 2 of Clause 2 of the Tenth Schedule says that an elected member of a House who has been elected as such otherwise than as a candidate set up by any political party (meaning independent) shall be disqualified for being a member of the House if he "joins" any political party after such election. In other words, independent legislators can legally "support" a political party's effort to form a government, short of joining that party. Neri, before he quit the Parrikar government, was an independent member of the Assembly supporting the BJP government, and hence his disqualification under the Act did not arise.

Two BJP legislators, Pandurang Madkaikar and Isidore Fernandes, who resigned from the Assembly - they were later rewarded with ministryships by the Congress - had also not suffered any disqualification under the Act, even though their conduct shed light on how smart defectors could take advantage of the loopholes in the Act. The Act only prevents the offer of ministerial posts to an incumbent legislator who suffered disqualification because of defection; it naively overlooked the option of resignation from the Assembly available to a potential defector, and the likely reward he could get for his "sacrifice". Fortunately for the Congress, the imposition of President's Rule in Goa on March 4 after the Rane government won the vote of confidence with the help of defectors, helped erase the taint it invited in circumventing the spirit of the Act.

IN Jharkhand, the issue was whether the NDA could have legally secured the support of certain MLAs in order to win the vote of confidence in the House without their attracting disqualification under the Act. On March 15, when BJP Chief Minister Arjun Munda won the vote of confidence in the Jharkhand Assembly for the NDA government headed by him, the newly elected Speaker, Inder Singh Namdhari, announced that including him the NDA's strength in the 81-member Assembly was 41.

The support of Enos Ekka, the lone MLA of the Jharkhand Party, was crucial for the NDA's victory. Ekka has therefore been sworn in Minister, even though he violated the whip issued by his party to vote against the NDA's motion seeking vote of confidence in the Arjun Munda government. The NDA camp has reasoned that the whip issued to Ekka by his party president, N.E. Horo, did not apply to him since he fought the election on a symbol different from that of the Jharkhand Party. The Jharkhand Party symbol is the "drum" but Ekka fought on the "aeroplane" symbol as the returning officer did not allot the "drum" symbol to Ekka despite the party's request. In any case, the party had given a letter stating that Ekka was its authorised candidate from the Kolebira constituency from where he was declared elected. The Election Commission's web site also shows him as the candidate of the Jharkhand Party.

Section 2 (b) of the Tenth Schedule states that a member of a House belonging to any political party shall be disqualified from being a member of the House if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs without obtaining the prior permission of such political party and such voting or abstention has not been condoned by such political party within 15 days from the date of such voting or abstention.

The import of this provision is that Ekka's support to the Munda government would be valid only for 15 days from March 15, and if his party did not condone his action within this period, he would invite disqualification under the Schedule.

The NDA is banking on the support of Kamlesh Kumar, the lone MLA of the Nationalist Congress Party (NCP). Kumar was a Minister in the short-lived Shibu Soren-led United Progressive Alliance government. He violated the whip issued by his party to vote against the Munda government by abstaining from the House on March 15 on health grounds. He too faces disqualification under the Schedule, unless his party condones his action before March 30. The announcement by the expelled Jharkhand State unit president of the NCP, Dhruv Bhagat, that the State unit had merged with the BJP is not valid as the party has denied the merger.

Clause 4 (1) of the Schedule says that a member of a House shall not be disqualified when his "original political party" merges with another political party. Since Kumar is the lone MLA of his party, the protection given by Clause 4 (2) to those mergers approved by two-thirds of the members of the legislature party would not apply. If he still "merged" himself with the BJP, then he would invite disqualification under Clause 2(a) as well - for voluntarily giving up his membership of the NCP.

The prospect of losing the potential support of these two MLAs should have dissuaded the Munda government from accepting the challenge of forming the government. If, however, the government still survives in office, it would only be thanks to Clause 6 of the Schedule, which says that the question of disqualification of a member shall be referred to the presiding officer (Speaker) of the House and his decision shall be final. A Speaker like Namdhari could endlessly delay a decision on the disqualification of these two MLAs, thus prolonging the tenure of the Munda government. The view expressed in some quarters that such a power ought to have been given to a neutral authority like the Election Commission, rather than to the Speaker's office, thus makes perfect sense.