Sunday, January 6, 2008

Need to clarify grey areas in new anti-defection law

Need to clarify grey areas in new anti-defection law

By Neena Vyas

NEW DELHI, MARCH 13. The new anti-defection law enacted by Parliament last year through the ninety-first amendment of the Constitution was lauded across the political spectrum as it intended to end the era of `aya rams and gaya rams,' the time when politicians flitted in and out of different political parties purely for personal gain. However, what the law may have intended to do may easily be undone by unscrupulous political parties unless certain grey areas are clarified.

The chaotic situation that prevailed in Goa before President's rule was imposed demonstrated that clever politicians have already thought up ways to skirt the rather stringent clauses relating to disqualification of legislative members. And to some extent the public perception that the Jharkhand Governor had erred in giving the first chance at government formation to the Jharkhand Mukti Morcha leader, Shibu Soren, has also something to do with the new anti-defection law.

The Tenth Schedule of the Constitution, referred to in the new law, clearly states two things. One, an elected member of a legislative House is to be seen as belonging to the political party, if any, by which he (or she) was set as a candidate for the election. And these members of political parties will attract disqualification for being members of the House "if he votes or abstains from voting in the House contrary to any direction issued by the political party to which he belongs, without obtaining, in either case, the prior permission of such political party, person or authority.'' Any defiance of the political party has to be condoned by that party "within fifteen days from the date of such voting,'' if he is not to attract disqualification.

Two, those who get elected other than as candidates of a political party (that is, independents) "shall be disqualified for being a member of the House if he joins any political party after such election.'' In short, independent members of legislative Houses remain free to do as they wish, except that they cannot join any political party.

To some extent the sad situation that prevailed in Jharkhand after the election results came in was also due to the fact that as yet it is not clearly understood by the public at large that elected members of political parties have to be guided by their political bosses in the party to which they belong if they are not to be disqualified as MLAs or MPs, as the case may be.

Take the case of Enos Ekka of the Jharkhand Party, who has now taken oath as a Minister in the Arjun Munda Government. After the results came in, both the National Democratic Alliance and the United Progressive Alliance included his name in the list of supporters submitted to the Jharkhand Governor.

While the NDA claimed that Mr. Ekka was with it, and he was "paraded'' at Raj Bhavan and in New Delhi, the boss of his political party, N.E. Horo, had given a letter of support to Mr. Soren of the UPA. Under the new law, the Governor did not do anything illegal in discounting Mr. Ekka's support to the NDA or counting him as a possible supporter of the UPA. Of course, the NDA may well be able to pacify Mr. Horo — political parties have very many ways, best left to the imagination, of doing this — in the next few days before the Munda Government takes its floor test, but how can the Governor be berated for what he did?

Take the case of Kamlesh Kumar of the Nationalist Congress Party. His party has clearly stated that it would throw in its lot with the UPA, yet, yesterday Mr. Munda included him in his list of Ministers to be sworn in. Many here believe that Mr. Kumar's "illness,'' which prevented him from taking his oath as Minister, was more political than physical. The NCP bosses have already stated categorically that they would issue a directive to him to vote against the NDA. To go back to what happened in Goa recently, the Bharatiya Janata Party claimed that Filipe Neri Rodrigues, an independent MLA, had "joined the BJP'' sometime ago and, therefore, he could not now change his mind and join the Congress camp without being disqualified. However, the fact of the matter is that Mr. Rodrigues, under the new law, was free to support the BJP but could not have joined it without facing disqualification.

The Congress did one better. After the Pratapsinh Rane Government of the Congress was sworn in, Mr. Rodrigues, who had by then already been declared disqualified by the BJP Speaker, was taken in as a Minister, using another clause in the Constitution, which allows a Chief Minister (or Prime Minister) to appoint any Indian citizen as a minister provided that he gets himself elected to the House within six months of the appointment.

Violation

Clearly, if the Congress was in unseemly haste to form its own government in Goa, the BJP too had violated the spirit and letter of the anti-defection law framed by its own government under Atal Bihari Vajpayee, as it is doing even today in Jharkhand.

Unfortunately, there are many cases in recent political history, where Speakers of State Assemblies have acted in a blatantly partisan manner instead of upholding the dignity of the chair they occupy or showing the non-partisan approach that is expected of that office. In Uttar Pradesh when Mayawati of the Bahujan Samaj Party withdrew support from the Kalyan Singh government and Mr. Singh was directed to take a trust vote, he simply broke away a sizeable number of BSP MLAs, who voted in his favour and stopped his government from falling. Although this BSP group fell short of the one-third number needed under the law at that time to recognise a legitimate split in the party, the Speaker simply went on postponing giving his order. When it finally came, it was challenged in a court, but by then it was too late.

To make the new anti-defection law truly effective — and it is needed because elected legislators get votes from the people on the basis of their party symbols and changing parties after the results amounts to committing a fraud on the people — Speakers of Assemblies will have to show more integrity and pronounce their orders on disqualification within a couple of weeks, for the law to have the desired effect.

If that does not happen, the day may not be too far off when the power to pronounce an MLA or an MP disqualified is taken away from them. Already the Election Commission has suggested that this power be given to it.

© Copyright 2000 - 2008 The Hindu

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THE HINDU

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