institutional-fixes-and-the-need-for-ethical-politics

Source: the hindu

 

Context: Shivraj Singh Chouhan of the Bharatiya Janata Party (BJP) was sworn in as the Chief Minister of Madhya Pradesh in a small ceremony at the Raj Bhavan in the midst of a Corona scare in India.

Background:

  • The Supreme Court had, on March 19, given an order directing the Speaker to conduct a floor test the next day. 
  • With the resignation of the 22 Congress MLAs who subsequently joined the BJP, the halfway mark of the Assembly had reduced, allowing the BJP to stake claim to form the government.
  • Since much of India was already under lockdown, no other minister was sworn in.
  • Madhya Pradesh does not presently have a cabinet or a dedicated Health Minister at this time of a health emergency.
  • Similar incidents: The Congress-JD(S) government was brought down in July last year in a similar manner with 17 MLAs of the ruling coalition resigning and joining the BJP.

New Method of Bypass:

  • The political trickery in Madhya Pradesh represents a new method of bypassing the anti-defection law and toppling elected governments. 
  • Novel method: Under this method, a set of legislators of the party in power is made to resign from the Assembly to reduce the total strength of the House enough for the other party to cross the halfway mark to form government. 
  •  In the ensuing by-elections, the members who resigned are fielded as candidates of the other party then most of them are re-elected.
  • Against the spirit of Anti defection law: This method of mass defection circumvents the provisions of the Tenth Schedule of the Constitution.
    • Grounds of disqualification as per anti defection Law: Voluntarily giving up party membership and voting or abstaining to vote against party directions.
    • Resignation is not mentioned as a ground of disqualification.However,  the speaker in Karnataka disqualified 17 MLAs for rest of the assembly term.
    • SC  in Karnataka episode upheld the disqualification.however, it stuck down the bar from contesting by-polls. 
    • In Madhya Pradesh, since the Speaker has accepted the resignation of the MLAs, the defectors can in any case contest the by-polls.

Implications:

  • Threatens India’s electoral democracy: The recurrence of political defection through the novel method is clear exploitation of Anti defection law.It betrays people’s mandate.
  • Wholesale defections: While solo legislators jumping ship might have reduced now, “horse-trading” seems to have gone from retail to wholesale.
  • The turncoats now have an upper-hand in the election as members of the ruling dispensation. It raises fundamental concerns regarding the role of a legislator in a parliamentary democracy. 
  • Legislator as rubber stamp: It denies the legislator the right to take a principled position on a policy matter and reduces her to an involuntary supporter of the whims of party bosses. 
  • Violates fundamental right to freedom of speech: Legislators act more like representatives of political parties instead of being people’s representatives.
    • Not fulfilling primary objective : On the other hand, it has not been able to meet its primary objective of preventing horse-trading and continues to be circumvented to bring down elected governments.

Way ahead:

  • Rethinking the Law:Examine whether the anti-defection law fulfils any purpose.
  • Need reforms that address both the concerns: Protecting right to freedom of speech of legislators as well as preventing horse trading as well.
  • Anti defection law should be restricted to only in case of important matters: As per Dinesh Goswami Committee the scope of the binding whip should be restricted to a vote of confidence.this would require amendment in the tenth schedule of the constitution.
  • Disincentvising MLAs:  Institutionalise the Karnataka Speaker’s decision to bar the defected members from contesting in the ensuing by-poll.

Beyond institutional fixes, we also need a popular articulation of an ethical politics that causes the public to shun such political manoeuvres.
 

Recommendations on reforming anti defection law: 

Dinesh Goswami Committee on Election Reforms (1990): The issue of disqualification should be

decided by the President/ Governor on the advice of the Election Commission.

✓ The Election Commission called for this advice to be binding in nature.

Halim Committee on anti-defection law (1998):

✓ The words ‘voluntarily giving up membership of a political party’ are not comprehensively

defined.

✓ Restrictions like prohibition on joining another party or holding offices in the government be

imposed on expelled members.

✓ The term political party should be defined clearly.

Election Commission 

✓ Decisions under the Tenth Schedule should be made by the President/ Governor on the binding

advice of the Election Commission.

Constitution Review Commission (2002)

✓ The vote cast by a defector to topple a government should be treated as invalid.

✓ Several experts have suggested that the law should be valid only for those votes that determine

the stability of the government (passage of the annual budget or no-confidence motion).

Source: https://www.thehindu.com/opinion/op-ed/institutional-fixes-and-the-need-for-ethical-politics/article31370475.ece