Parliament is considering amendments to the anti-defection provisions of the Tenth Schedule. The provisions of the Tenth Schedule essentially disqualify a member elected on a party symbol if he voluntarily gives up membership of that party, or if he votes, or abstains from voting in the legislature contrary to any direction ('whip') issued by his party. But, if one-third of the members or more stray from the party line, and claim that the legislature party has split, and they constitute a new group, then disqualification does not apply. The presiding officer of the house concerned is the final authority to determine disqualification. All disqualification proceedings are deemed to be proceedings of the legislature under Articles 122 and 212, and therefore no court shall have any jurisdiction in respect of such matters.
However, anti-defection provisions failed to prevent defections. The only novel feature now is that individual defections invite disqualification, while collective defection is perfectly legitimate and is amply rewarded! As a result splits are engineered, and constitutional coups are planned with meticulous precision, and careful conspiracy. Several parties 'split' even in Parliament, and as the JMM case testifies, the defecting members benefited immensely.
There is however one major unitended consequence of anti-defection provisions. The intention was to prevent change of power in gross violation of popular mandate. But in effect, violation of party whip on any vote attracts disqualification. Party legislators who may honestly differ on a piece of legislation are now forced to submit to the will of the leadership. The ill-conceived legislation on Muslim women's maintenance after the supreme court verdict in Shah Bano case is one sad example. If the congress MPs had freedom of choice, that Bill would never have become law. That folly, and the resultant outcry forced Rajiv Gandhi to overcompensate to appease the enraged public. Unlocking the gates of the disputed structure in Ayodhya, the silanyas under the watchful eye of Buta Singh, the then Home Minister, and the launch of Rajiv's 1989 election campaign from Ayodhya with the promise of Ramraj all these followed. The rest is histotry. An even more shameful episode is the direction issued by congress party to its MPs not to vote on the impeachment proceedings against Justice Ramaswamy in 1991. Consequently, judicial accountability collapsed, and eventually power of appointment of judges has been usurped by the judiciary!
Now that the cabinet has decided to amend the anti-defection provisions, the opportunity must be utilised to remove these distortions. While defection by one or many should incur disqualification, three safeguards are needed to ensure healthy parliamentary debate, and curtail autocratic tendencies of party bosses.
First, party whip, and disqualification for violation must apply only for a vote affecting the survival of government money bills, and confidence or no-confidence motions. On all other issues, members should have the freedom to vote as they choose.
Second, there should be recognition of legitimate splits in a party. If party bosses are utterly autocratic, or if their policies are blatantly unconstitutional, then the members must have an opportunity to rebel, and even split the party. On such occasions, the split should first take place in the party fora in a transparent and public manner after a statutory notice of, say at least a month, and after the members or delegates are allowed a free vote. A resultant split in the legislature wing should be recognized irrespective of the proportion the splitting members constitute.
Third, past evidence clearly suggests that a partisan presiding officer loyal to the government cannot be trusted with the power to decide on disqualification. That power rightfully belongs to the Election Commission. Parties would do well to act with foresight and make the EC the final authority on all such matters.