Issue 39 Vol II, May 15, 2007

L A W  &  J U S T I C E

Is Old Game of Defections Over?

Indian parliamentarians had earned the dubious distinction of Aya Rams and Gaya Rams; jumping from one political party to another in matter of days. Defections not only sullied the image, but brought in money bags and muscle power and provided instability to the political party system and the governance. A new constitutional amendment ends all this. Senior advocate and a commentator on public affairs, Joginder Singh Toor discusses how it would add to the stability and end horse trading among the legislators.

Ninety first amendment of the Constitution of India may prove too strong a rope to be broken by any member of elected legislators even if one third or one half or any member change loyalty from the political party that  had set them up for contesting the election on its ticket.

An atmosphere of almost instability in 1985 when Rajiv Gandhi took over, a paramount need in bringing about legislation to prohibit defections, 42nd amendment of the Constitution was rushed through. It  subjected a member of a house to disqualification if he has voluntarily given up his membership, or 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 prior permission ......or he joins any political party.

Disqualification on the ground of defection did not apply to a split by not less than 1/3rd of the members. Para 3 of the Tenth Schedule provided :-

"3. Disqualification on ground of defection not to apply in case of split.—Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one third of the members of such legislature party,--

(a)             he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground—

(i)                that he has voluntarily given up his membership of his original political party; or

(ii)              that he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and

(b)             From the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph."

Para 3 provided a shield to the dissidents in a party from disqualification if they happened to be not less than 1/3rd of the members; till 2003 when during the tenure of the N.D.A in the centre, elections to States of Chhatisgarh, Madhya Pradesh and Rajasthan were to be held. Atal Bihari Vajpayee the then Prime Minister expressed his personal opinion that there should be no change over once elected, whether 1/3rd or even more. Almost all the parties agreed and constitution's 91st amendment followed in 2003 to be effective from January, 2004, deleting Para 3 all together from the 10th Schedule. The net effect of the amendment is that once elected on the ticket of particular party , he or she cannot change the loyalty to any other political party whatsoever number of such legislators may be.

Jagjeet Singh originally member of NCP was sole elected member of the N.C.P. in Haryana. He claimed that as a result of a split in NCP he had formed and joined a new political party namely 'Democratic Dal of Haryana' on 20th Dec., 2003 and intimated the fact to the speaker with a request that he be treated as member of the new political party. It was later on merged with Indian National Congress. He stood disqualified. Karan Singh Dalal's case was similar except that he was member of Republican Party of India.

On challenge by Jagjeet Singh the Supreme Court of India finding merit in the order of the Speaker left a mark on the polity of India by holding that the requirement was not the split of the local or a state wing of the original political party, but that of the original political party.

In view of the changed legal scenario as a result of 91st amendment, the question of even an independent member, supporting the ruling party from out side without joining it, can attract disqualification if he has give up his independent character. A mere expression of out side support would not lead to an implication of a member joining a political party. At the same time non-fulfillment of formalities with a view to defeat the intent of paragraph 2(2) is also of no consequence. The question of fact that a member has given up his independent character and joined for all intents and purposes a political party though not formally, so as to incur disqualification is to be determined on appreciation of material on record, said the Supreme Court.

The scope of changing loyalties even by a single member party legislator or by an independent one, has been marginalized too narrow.

The option to vote against the direction of the political party is not there at all. Voting or abstaining from voting against the direction of the political party straight away attracts disqualification. Head of the political party is now virtually supreme.

[jogindersingh_toor@yahoo.com]

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