Defection and Constitutional Propriety – Letter

Advocate & National Spokersperson
of the Indian National Congress,
B-38, Defence Colony,
New Delhi – 110024.
24 August, 2014

Dear Shri……………………
Sir,
I am writing this letter with certain suggestions to improve the efficacy of the Anti Defection Law, Tenth Schedule of our constitution.

It is needless to mention that sustainability of democracy depends not only on the constitutional principles but also on constitutional morality and constitutional propriety. Constitutional morality has been defined by Dr. Ambedkar as “a paramount reverence for the forms of the Constitution, enforcing obedience to authority, acting under and with a habit of open speech, of action, subject only to legal control….”. On the background of this, if we analyse and introspect present day political dynamics and the political behavior of the legislators and the ministers, we will find that the spirit and essence of constitutional propriety has become irrelevant. You will share my concern that despite the fact that the historic Anti Defection Law (Tenth Schedule) is in place, included in the Constitution in 1985 by the Rajiv Gandhi Government, to combat the evil of political defections and the said law has been strengthened by the 91st constitutional amendment in 2003, the malady of defection is still eating into the fabric of our democracy. Therefore, it is important, for the sake of building a healthy democracy, that the present provisions of the Anti Defection Law are reviewed in the light of our experience and requirements and also the ambit of the law is widened.

In essence, defection has been defined by constitutional and legal experts as disloyalty, abandonment of duty or principle. A political party functions on the strength of shared beliefs or collective conscience. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. By defecting, a Member not only becomes disloyal to the party and its ideology but also commits a breach of trust with her/his electorates and undermines the very survival of the cherished values of democracy.

Anti Defection Law is very clear so far as the grounds for disqualification are concerned. It states that a Member of a House belonging to any political party becomes disqualified for being a Member of the House, (a) if she/he voluntarily gives up her/his Membership of such political party; or (b) if she/he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days. From the above provisions, it is clear that a Member elected on a party ticket should continue in the party and obey the party directions. A Member cannot voluntarily give up her/his Membership. In the event of her/his expulsion from the party, she/he is treated as an unattached Member of the House. Even in this case, the ‘unattached Member’ is not free to join another party or to form his own party on the event of which the Member shall attract disqualification. In case of Independent Members, it states that an independent Member of a House become disqualified to remain a Member of the House if he joins any political party after such election. A nominated Member of a House becomes disqualified for being a Member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in the House. As amended in 2003, a Member of either House of Parliament / State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister or any remunerative political post. The underlying premise in declaring an individual act of defection as forbidden is that lure of money or office could be presumed to have prevailed. This presumption has been made by the legislature on its own perception and assessment of the extant standards of political proprieties and morality.
The same presumption of influence by money or by office, certain standards of morality have been prescribed rather constitutional and legal provisions have been made for the persons occupying constitutional positions like the judges and the CAG. In judiciary, no person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India. When it comes to pick-choosing retired Judges of Apex Court, fingers of suspicion are likely to raise especially when the appointment process is arbitrary or whimsical. Existence of discretionary power in hands of political executive apart, the exercise of the same without following a due process nevertheless casts serious aspersions over the impartiality or neutrality of those chosen for lucrative or plum assignments. The Comptroller and Auditor-General also shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office. In services also, the guideline is that no officer, Civil or Military, may retire with the view of being re-employed, and drawing pension in addition to pay, whether in the general service or in the service of any local fund.
Now, the time has come to apply this conscientuous principle to the Ministers, both at the Centre and in the States. The Cabinet in Westminister model functions on the principle of collective responsibility. For the purpose of accountability, the Cabinet is treated as a single entity. The Ministers are appointed by the President on the advice of the Prime Minister and remains so as long as they enjoy the confidence of the Prime Minister. The President can remove a Minister, if advised by the Prime Minister, but nowhere it is written or implied that a Minister can voluntarily give up her/his position in the cabinet and defect to another political party in anticipation of a plum political position in future. It needs to be understood that a Minister is not a simple legislator but holds an important position, under oath/affirmation. When a Member becomes a Minister she/he takes oath that she/he will conscientiously discharge her/his duties as a Minister for the Union and that she/he will do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will. Therefore, Defection by a Minister not only tantamounts to violation of the cardinal principle of collective responsibility of the cabinet but also belies the oath/affirmation taken by the Member because the reason for defection is mostly in anticipation of a larger favour. For maturity and stability of the Indian democracy, it would be pertinent that once a Minister voluntarily gives up her/his position in the cabinet and defects to another political party under the Anti Defection Law, she/he should be automatically debarred from holding any ministerial responsibility or any remunerative office for his life time. It will bolster the image of democracy that a body of men are united for promoting their joint endeavors in the national interest, upon some particular principles in which they are all agreed. In other words, by banning defections by Ministers, there would be less corruption, more stability of the government, and more meaningful governance with less personalism. It should also be examined if the Anti Defection Law can apply to pre-poll alliances. The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances also. The Law Commission proposed this change with the condition that partners of such alliances inform the Election Commission before the elections.
The question of defection has haunted Indian politics since more than three decades. This was sought to be eliminated by the Tenth Schedule of the Constitution and its amendment in 2003 but whereas individual defections have become rare, bloc defections are not only permitted and promoted in the name of merger but amply rewarded also. Defectors are usually rewarded with plum political positions/seats of influence which makes mockery of democracy and the Objects and Reasons of the Anti Defection Law. It encourages corruption – both economic and moral – at the heist levels. Therefore, defections flout people’s mandate and cannot be and should not be permitted – either individually or en mass. There is a strong need for reforming the Anti-Defection Law. It needs to be categorically provided that a defector Minister(s) – whether an individual or a group, small or large – would not only instaneously and automatically lose her/his Membership of the House, but she/he could not be appointed as a Minister or to any public office of material benefit or influence for the rest of her/his life time. Besides, for strengthening the Anti Defection Law, the terms like ‘political party’, ‘split’ and ‘merger’ need to be precisely defined to avoid partisan and ambiguous decisions by the Presiding Officers, deliberate or otherwise. The concept of ‘unattached Member” also needs to be done away with. Defection should automatically lead to disqualification. The flaws in the Anti Defection Law need to be corrected as part of governance reforms and this can be done by either constitutional amendment or by amending the rules, to save democracy.

Hopefully, the aforementioned suggestions shall be helpful in strengthening the exsting Anti Defection Law to make it a practically effective one.

Receipt of the letter may please be acknowledged.
With warm regards,

(JAIVEER SHERGILL)

To,
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