A move against defections

The National Commission to Review the Working of the Constitution comes up with a 'block vote' proposal in order to correct lacunae in the concept and implementation of the anti-defection law.

THE Tenth Schedule of the Constitution, which provides for the disqualification of elected representatives when they resort to defection, was incorporated in the Constitution through an amendment in 1985 under peculiar circumstances. The Congress(I) led by Prime Minister Rajiv Gandhi had been swept to power the previous year. Riding the crest of a sympathy wave following the assassination of Indira Gandhi, the party had won 401 Lok Sabha seats, an electoral record in India. Therefore the Constitution 52nd Amendment Bill, which was introduced with the apparent objective of preventing unprincipled defections and thus addressing the concerns of governments hanging on thin majorities, created ripples. Critics saw in the government's move an attempt to end whatever little dissent there was within the ruling party and consolidate its absolute majority in Parliament. Since then the anti-defection law has been criticised as being defective. Now, the National Commission to Review the Working of the Constitution (NCRWC) may be considering a proposal to correct the lacunae.

The Tenth Schedule has by and large failed to check defections. Critics say that while making individual acts of defection illegal, the law allows en masse defections. A Member of Parliament is disqualified if he or she voluntarily gives up the membership of a party and if he or she, at the time of voting in the House, acts contrary to the whip issued by his party without obtaining its prior permission or the action is not condoned by the party within 15 days from the day of voting. However, these provisions do not apply in case of a split in the party or its merger with another party. A split is considered valid if the group splitting away consists of not less than one-third of the strength of the legislature party. In case of any merger, the move must have the backing of not less than two-thirds of the legislature party.

On February 18, 1992, the Supreme Court, in its majority judgment (by three members on the Bench) in Kihoto Hollohan vs Zachillha and others, upheld the validity of the Tenth Schedule but declared as invalid paragraph 7, which barred the jurisdiction of the courts in the matter. Justifying the provision that recognises a split, the court said: "That a particular course of conduct commended itself to a number of elected representatives might, in itself, lend credence and reassurance to a presumption of bona fides." Two Judges on the Bench, however, held the entire Act ultra vires of the Constitution, holding as untenable the implicit assumption in paragraph 7 of impartiality on the part of the presiding officer of the House. Subsequent events have vindicated the minority view. For instance, the law could not prevent the Bharatiya Janata Party from engineering defections with the help of a partisan Speaker in an attempt to form a government in Uttar Pradesh after the Assembly elections in 1997 (Frontline, November 14 and November 18, 1997).

The anti-defection law has also been criticised on the grounds that it infringes on the basic powers, privileges and immunities of members in exercising their freedom of speech and freedom of action, which includes the freedom to vote.

Also, the decisions taken by the presiding officers in the exercise of powers granted to them under the Tenth Schedule have varied, giving rise to allegations of partisan behaviour. For instance, as the Lok Sabha Speaker, Rabi Ray held in one instance that the split was a one-time affair and disqualified those who joined the splinter group belatedly. However, his successor Shivraj Patil ruled that a split was a continuous process and extended legal protection to all members who left the Janata Dal at various points of time during 1992-93.

THE NCRWC proposal seeks to rectify the law just by changing the manner of counting the votes in the legislature in the event of division on certain motions. According to the procedure proposed, the legislative wing of every party represented in the House shall have one block vote, which is equal in value to the number of members of that party in the House. The value of the block vote of each independent member or nominated member shall be equal to one. Under the present law, independents and nominated members would be disqualified if they join a political party.

Under the proposed measure, the fate of the motion would be decided by counting the total value of block votes, and not individual votes. The block vote would be deemed to have been cast on that side of the motion on which a majority of the members of that block have voted. In the event of an equal number of members of a block voting for and against the motion or abstaining, the entire block would be deemed to have abstained from voting on the motion.

Interestingly, the NCRWC proposal gives the option of a group of parties registering itself as a pre-election coalition so that all its constituents together shall have one block vote during the term of the House so constituted. This, it is believed, would stop a potential destabiliser from leaving a pre-election coalition.

The proposal does not restrict the freedom of a legislator to vote according to his or her conscience. Only in the case of motions that would have a bearing on the stability of a government would his or her vote be deemed to have been cast on the side on which a majority of the members of his block have voted. When a member's vote in crucial matters is counted with that of the majority of his party members and does not depend on the will of any leader, there would be no case for disqualification. This will make the Tenth Schedule redundant.

These changes are proposed to be incorporated through an amendment that would add a proviso to Article 100 (on voting in Parliament) and Article 189 (on voting in State legislatures). The proposal, according to sources in the Commission, has received a favourable response from experts. The Commission is likely to adopt the proposal and prepare a paper for a wider debate before its submits its report in October.