October 18, 2017   
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Dodging Anti-Defection Law


By Dr. S. Saraswathi

(Former Director, ICSSR, New Delhi)

Tamil Nadu today presents the most confused Party politics and utterly complicated political situations challenging law and conventions.  Changes happen on an hourly basis making it difficult for people to keep track of them and it is a puzzle for decision-making authorities to handle them from an impartial and legally sound stand.

Pertinently, political developments since former Chief Minister Jayalalitha demise are as much a portrayal of the extent of manipulations possible in   our political system and functioning as the capabilities and readiness of institutions and functionaries to make the utmost use of situations. This result is the emergence of several political lessons worth learning.

Events reached an important stage when 18 MLAs of ruling Party AIADMK were disqualified by the Speaker under Schedule 10 of the Constitution.  They had submitted separate letters personally to the Tamil Nadu Governor withdrawing support to the Chief Minister.  Interestingly, they seemed to have carefully distinguished their Party affiliation, support to the Government  and  support  to the incumbent Chief Minister.

The disqualified legislators filed a petition in the Madras High Court against what they termed as “illegal” disqualification and urged the Court to quash the Speaker’s order. The Court extended the stay of a floor test from 20 September till 4 October to determine a majority in the Assembly but refused to stay the disqualification of the 18 MLAs.

This interim order pending final disposal of the case restrains the Election Commission from   declaring the 18 seats as vacant or issuing notification for conducting election to these seats.

Undeniably, the Court order partially favours all the litigants and interested parties in this case and concerns the very survival of the State Government and the  Legislative Assembly.  The disqualified MLAs neither got nor were denied all that they wanted. Consequently, the order bestowed them with hope and despair while they await the final verdict.

The disqualified MLAs have got relief that the court did not endorse their disqualification, however, not from continuing suspense about the future of their tenure. The case manifests yet another type of  Party politics which is moving farther and farther away from public interest,  popular opinion and political ethics.

Undoubtedly, the 32 years old Anti-Defection Law incorporated in the Constitution  by  the 52nd amendment once welcomed as a deterrent for  “Aya Ram, Gaya Ram” politics” has now entered a new phase thanks to professional politicians refining its use and abuse in State politics.

Veritably crooked politics in every instance of defection brings forth new possibilities of dodging the Anti-Defection Law along-with fresh interpretations of situations warranting the application of the law!

Notably, the disqualification of 18 MLAs has reduced the strength of the Assembly from 233 to 215 and lowered the majority line from 117 to 108.  This can help the State Government’s survival in the event of a confidence or no-confidence motion.

Therefore, a test at this point defeats the purpose of the defectors and disappoints the principal Opposition Party DMK which is not far from a majority. While the Court’s final verdict is awaited anxiously by the political actors the nation would like to know how the judiciary can save the country from unethical politics.

Under the Anti-Defection Schedule, a member of Parliament or legislature  may be disqualified  for  voluntary  resignation  from  his  Party or for  disobeying the directives of his Party’s leadership on a vote, plainly votes against the Party whip.

Importantly, this Schedule has been interpreted by courts on several occasions with reference to State Assemblies as circumstances surrounding the behaviour   of   MLAs are different.  Each time different issues arise requiring judicial clarification and decision.

Thus, voluntary resignation has been explained to include publicly opposing the Party of which one is a member or stating support to another Party.    In the   present case, the Speaker contended that the actions of the dissident MLAs showed that they were “making efforts to align themselves with a Party other than the Party from which they were elected”.

Citing their stay away from the State at a resort in Karnataka, the Speaker contended that it clearly showed that they had distanced themselves from the Party and were in the control of persons outside the Party.

Hence, the details are not simple and need reading into behaviour patterns and activities of dissident members to determine violation of allegiance to their Party and disobedience to the Party mandate.

True, inner Party democracy is a valuable concept for promoting a democratic Government.  It is generally acknowledged that when issues are discussed within Parties, different opinions and views might be expressed, but once decisions are taken they become Party decisions to which all adhere. This applies to election of leaders also and is an internal Party issue to be discussed and settled within.

The Statement of Objects and Reasons for the Anti-Defection Amendment states: “The evil of political defections has been a matter of political concern. If it is not combated it is likely to undermine the very foundations of our democracy and the principles that sustain it”.

However, the  Amendment cannot prevent  Party manipulations and  groupism  by  disgruntled members for leadership without  leaving  or  splitting  their  Party or openly defying  its  dictates.  Therefore, endless litigations and uncertainty in Government have arisen in many States involving the Anti-Defection Law.

Indeed, growing controversies often shift focus to identifying the real Party which means taking the fight down to Party workers at all levels. In effect, the issue can only confuse ordinary voters.

The Schedule also allows two-third members of a Parliamentary or legislative Party to merge   with another Party or form a new one. As a result the Anti-Defection Law has thus encouraged the politics of arithmetical victory in more than one way — some trying to “construct” and others to “deconstruct” a majority by playing the number game whereby every member is an invaluable asset for the Party.

Personalities play a major role in this number game.  It is a common feature in all States —- Arunachal Pradesh, Manipur, Goa, Karnataka, Tamil Nadu, Uttarakhand etc. Loyalty is to a person and not policies, be it for constructing or dismantling a majority. Disqualifying dissident members has become an easy course for proving legislative majority in many States.

Under the Anti-Defection Law the Speaker is the final authority to decide on disqualification.   For a Speaker elevated to the post with the support of his Party often after long years of service to fully tear away from his Party roots and act as a neutral judge is not difficult to imagine.  This is a difficult though not impossible task.

The Supreme Court in a recent order stated that the ruling of  the Speaker’s decision is not final, but subject to judicial review. In some cases as in Karnataka in 2011, disqualification of dissident members by the Speaker was annulled by the Court.

In the ultimate, the Anti-Defection law has been made for protecting proprieties of politics and personal conduct. Clearly our polity has to fulfill the nation’s expectations. —– INFA

(Copyright, India News & Feature Alliance)