Tmc Shiv Sena Anti Defection Law Has Failed Needs A Rethink

This stability has often been missing due to the defections by “aaya Rams, gaya Rams” toppling elected governments. To address this, in 1985, the Tenth schedule was added by way of the 52nd Amendment to the Constitution “for outlawing defection” by disqualifying any elected members who defect from or defy the whip of the political party to which they belong, except in the case of a split or merger.

The stated objective was the national concern about political defections, which undermined the very foundations of our democracy. Behind the scenes was also the expediency to protect the unusual majority of 415-plus, which Rajiv Gandhi got immediately after the assassination of Prime Minister Indira Gandhi.

Whatever be the motive, the underlying premise of the Tenth schedule is that the elected representatives cannot be trusted with political morality, loyalty to their own party, and independent judgment beyond party lines.

The validity of the Tenth schedule was challenged in the Kihoto Hollohan case as violative of the fundamental rights to freedom of speech and conscience, and to dissent and to dissociate from the party line. And that it suppressed democratic debate, dialogue, and disagreements. The challenge was negatived by the Constitution Bench of the Supreme Court in favour of party discipline to check the unprincipled and unethical flight of members of the House. Then followed several judicial decisions with nuanced interpretations of defection, the role of the Speaker, and the relationship between a political party and its legislative wing. By the 91st amendment in 2003, the threshold to constitute a defection as a split was increased from 1/3rd to 2/3rds of the total strength of the legislative party.

The shifting loyalties and fluidity of our politics make our elected representatives cross over to political opponents time and again, despite the Tenth schedule. The force of the original electoral verdict has been dismantled by the avatar of split and merger. Rarely is the elected representative who defects disqualified, particularly when the defection is with the blessing of the ruling party. In very few cases, the resignation of elected representatives is followed by their re-election under the banner of a new party.

In the ongoing crisis of the TMC, the defection, described as a split, is followed by a merger with a nondescript NCPI (Nationalist Citizens Party of India) to save the remaining tenure of the rebel MPs. A major faction of Shiv Sena (UBT) is on the same path. Only time will tell how this will play out. In all probability, the original TMC/Shiv Sena (UBT) leadership will challenge this as defection to seek the disqualification of rebel MPs. The status quo pending the challenge would suit everyone. Maybe, at some convenient point in time, when their utility ceases, these rebel MPs will be disqualified. Whatever the outcome, the issue is not about the political morality of these rebel MPs and the game the ruling BJP may or may not play.

Elected representatives in mature democracies, like the UK, from where we borrowed the Westminster model of parliamentary system, often take a political position different from their political party. In the US, Republicans vote openly, and at times with prior announcement, with Democrats, or vice versa. We fear this as a charter for indiscipline and horse-trading to defeat or topple the original mandate in a given election.

There arise some fundamental questions about the very desirability of the Tenth schedule. Isn’t there a stifling of intra-party democracy in all the political parties because of the structure created by Tenth schedule? Why can’t an elected representative be trusted even for five years and, if she commits defection, be answerable only to her own constituency? How easily we deny wisdom and agency to the electorate.

It would be facile to say that the Tenth schedule has made defections, toppling of elected governments and horse trading much more difficult, expensive or infrequent. The ruling parties, at whatever level, rule with the iron fist of a whip on their members and the parties in opposition remain vulnerable to poaching, despite the seemingly high threshold for split and merger. The high command culture with virtual disappearance of inner-party democracy is among the worst, if unintended, consequences of the Tenth schedule. A re-appraisal is needed after four decades of this messy anti-defection law. It is time to think of its complete abolition and re-imagine our party politics on a more mature platform of political accountability.