The parliamentarians and legislatures, under oath of Constitutional propriety, can’t annihilate Anti-Defection laws by circumventing and indulging in house trading and poaching to dislodge duly elected governments. People’s mandate for 5 years is to perform, to be re-evaluated in next elections, but unethical political defections subverts the fundamentals of a vibrant democracy.
By KC Mittal
New Delhi: Eventually the cat is out of the bag. Eknath Shinde and Davendra Fadnavis are the masterminds to topple the legitimate government by hook or by crook, undermining the Constitutional ethos. The menace in which sequence of events were orchestrated by airlifting the MLAs to Surat, Guwahati and Goa, away from the State, incommunicado, incurring huge unaccounted expenditure has no constitutional sanction, blatantly indulging in corruption. This has become a trend to belittle democratic institutions, a matter of worry for the whole nation, if we are democratic Country. Use of ED or IT department or any of the modus operandi facilitates to achieve such unethical defections to dismantle the Constitution of India.
A fallacious perception is being built that 2/3rd members of the legislative party if join together can escape disqualification under Xth Schedule. The legal position is totally different.
Going by the Constitutional Bench judgment, in case of Rajendra Singh Rana & Ors vs Swami Prasad Maurya, interpreting para 3 of Xth Schedule as introduced in 1985, the Apex Court held that a legislator do not wear two hats, one as a member of the original political party and other as a member of legislative party. The Court turned down the argument that 1/3rd legislators forming a separate group would postulate a split in the original party. It categorically held that para-3 speaks of two requirements, one a split in the original party and two a group comprising 1/3rd legislators separating from the legislative party. As such, the decision of the Speaker of UP Assembly recognising the split of 37 MLAs belonging to BSP, without a split in the original political party was struck down. Actually, Mayawati cabinet 2003 recommended for dissolution of Assembly, when 37, out of 109 BSP. MLAs , requested the speaker to recognise the analogy of 1/3, claiming it permissible. The speaker recognised them. This led to litigation. Another important aspect was that before the Speaker apart from split of 1/3rd MLAs, split in the original party have to be prima facie shown by the relevant material. The twin requirements cannot be obliterated.
Having failed to deter, para-3 of the Xth Schedule was deleted in 2003 and more stringent para-4 was introduced applicable from 01.01.2004. This requires merger of the original political party mandatorily and such mergers to escape disqualification, is required to be agreed by the 2/3rd legislators. Thereby, the twin requirements have not been given a goby nor a group of 2/3rd legislators without the merger of the original party can escape the consequences of disqualification. This cannot be confused or bellied. The exercise in Maharashtra is totally unconstitutional, to say the least.
Registration of political parties and allotment of symbols is within the exclusive domain of the Election Commission, regulated under the provisions of The Representation of People’s Act and the Election Symbols (reservation and allotment) order, 1968. Simply because a group of legislators separate they cannot claim any right or domain over the registered political party or the symbol, a subject matter to be adjudicated by the Election Commission, whenever approached. The dominance and authority of a political party cannot be disputed. Only a candidate to whom party grants ticket symbol is made available to contest. Eknath Shinde or all other supporters, has won on Shiv Sena ticket and are bound by party discipline.
They cannot claim any right directly or indirectly in the party or in the house, even if he claimed 2/3rd legislators. Even in Assembly, they can’t occupy the seats allocated to Shiv Sena. At best they would be unattached members, leave aside authority to appoint Chief Whip or issue Whip.
The historical background of “aaya-ram gaya-ram” and the menace of floor crossing infected very polity in India. The Apex Court, in “Kihoto Hollohan”, upholding the constitutional validity of Anti- defection law, observed that it would strengthen parliamentary democracy by curbing the unethical defections. Relevant passage must enlighten us, which I quote- “there is a real and eminent threat to the very fabric of Indian Democracy posed by the certain levels of political behaviours conspicuous by their utter and total disregard of well recognized political proprieties and moralities. These trends tend to degrade the tone of political lies and in their wider propensities, are dangerous to and undermine the very survival of cherished values of democracies. There is a legislative determination through experimental constitutional processes to combat that evil.”
The parliamentarians and legislatures, under oath of Constitutional propriety, can’t annihilate Anti-Defection laws by circumventing and indulging in house trading and poaching to dislodge duly elected governments. People’s mandate for 5 years is to perform, to be re-evaluated in next elections, but unethical political defections subverts the fundamentals of a vibrant democracy. Such overtures orchestrated from within or outside support, more so none other than power centre, would undoubtedly be a betrayal of public faith in democracy.
Recent sequence of events in Maharashtra, may be 7th or 8th example of state government in succession, being toppled by adopting unconstitutional means and methodology.
Political gimmickry has become an Industry in India, dismantling democratic Institutions. But, if democracy is to survive Xth Schedule must be enforced in letter and spirit. A unique legislation to curb menace of unethical defections, essentially to save and strengthen fundamental values of aptly designed constitutional institutions.
The authority to legislate is more important than the scrutiny. It’s a pious job entrusted to Lawmakers a matter of great eminence, but if they indulge in such activities than even god may not save well established institutions. Unfortunately, even the Institutions for Constitutional Studies and courses prescribed by Parliament for the benefit of lawmakers have been rendered defunct and be revived. Lacking basic knowledge of Constitutional proprieties and values will destroy us. A well trained lawmaker will provide better governance. It’s high time to provide minimum qualification, especially in Constitutional laws to save Construction and these institutions.
We are proud to be a vibrant democracy, acknowledged globally, let it be not destroyed.
(KC Mittal is former chairman and member of Bar Council of Delhi. Views expressed are personal)