'Anti-defection law has proved to be a complete failure': P. Chidambaram

Interview / P. Chidambaram, former Union minister

P. CHIDAMBARAM WAS A first-time MP when the anti-defection law was passed in Parliament in 1985. He walked up to A.K. Sen, the law minister, and suggested that he should carefully consider the provisions being made in the Tenth Schedule. Sen’s reply, said Chidambaram, was that it could be amended later.

Forty years later, the Congress in its manifesto for the Lok Sabha elections promised to amend the law. Chidambaram, the chief architect of the manifesto and one of the brightest legal minds in India, insists that an amendment should make defection a ground for automatic disqualification and ban the member from contesting an election during the term of the house. Excerpts from an interview:

Q/ A Congress government enacted the anti-defection law in 1985. Before the Lok Sabha elections this year, the Congress, in its manifesto, said the law must be amended. Why do you feel the law needs to be amended?

A/ I remember the year in which the Tenth Schedule was passed in Parliament. A.K. Sen, who was the law minister, had moved the bill. I was a first-term member of Parliament, and I walked up to him and said, ‘Sir, I think you should carefully consider the provisions you are making in the Tenth Schedule’. He said, ‘Let’s pass it, and then we can always amend it’.

The original Tenth Schedule had a provision for split and merger. The provision for split was omitted by an amendment, but the provision for merger remains. And that has been open to abuse. The provision for merger encourages one or more members who are elected on a party ticket to defect from the party and then put forward various arguments. The provision for merger, on many occasions, effectively becomes a split in the legislature party. The matter then goes to the speaker, who sits on the complaint for months, in some cases, years. He hands down a decision towards the end of the term of the member, and in many cases, after the term of the member is over.

It has spawned litigation in every high court. Some high courts have taken the view that is plainly wrong in view of the subsequent judgment of the Supreme Court. They have taken the view that even if there is no split in the parent political party, there can be a split in the legislature party, and one section or one faction can claim to be either an independent party or merge with another party. That is why we put it in the manifesto; all this is completely open to abuse.

Q/ What is the solution?

A/ The simple provision should be that if you defect, which is if you join another party, if you resign from your party, if you vote against your party’s whip, the party being the party on whose ticket you were elected, instantaneously you are disqualified, and you cannot contest an election for the remainder of that term. It is written in the manifesto that we promise to amend the Tenth Schedule of the Constitution and make defection a ground for automatic disqualification of the membership in the assembly or Parliament. In one section, the entire law of defection can be reformed and it can become an effective deterrent to defection.

Q/ How are you going to go about it? You are not in power.

A/ The party in power believes in Operation Lotus. The party in power encourages defections; it encourages splits in parties. Therefore, this party in power will never agree to our amendment. The manifesto promises if we come to power, we will pass this law. And I have no doubt that if the Congress had formed the government, either on its own or in alliance, we could have persuaded the council of ministers or the cabinet to pass such a law. This is a very simple, elegant solution to defection. The Tenth Schedule was added in 1985. Now, this is the 40th year, and yet defection has not been effectively suppressed by the Tenth Schedule. My proposal will effectively suppress any defection.

Q/ Do you feel that there are problems with the law, or is it that the political class has found a way around it?

A/ Problem with the law, number one. Number two, problem with the abuse of the law. Three, problem with the speakers’ action and inaction. Four, problem with the interpretation of the provisions by various high courts.

Q/ Proposals have been made that speakers’ role can be looked at and an alternative mechanism can be set up to decide on disqualification petitions.

A/ There is no need for that. In the case of resignation, although the speaker has to satisfy himself on whether the signature of the MLA or the MP is genuine, the resignation must be accepted. Similarly, in the case of defection, all that the complainant has to say and the speaker has to be satisfied with is whether he has resigned from the party, whether he has voted against the party’s whip, whether he has joined another party. So these are incontrovertible facts; so there is no great enquiry required. The examination of these three facts can be completed in half an hour.

Q/ You feel that the law in its present form has actually helped wholesale defections.

A/ Obviously. The fact that despite 40 years of the Tenth Schedule, there have been hundreds of defections proves that the law has been ineffective.

Q/ Can any law deal with issues of political morality?

A/ Here, we are not talking about political morality. If you are very unhappy with your party, resign and contest an election. If you resign and contest an election, there is no bar. You can’t rely upon the strength of your previous election and defect and betray your party. You can always resign and contest an election. The moment you resign, there will be a vacancy, there will be a by-election, contest it. We are not deciding the morality of that legislator. We are discussing the morality of his keeping the victory that was won on the strength of his earlier party, but acting against the interests of the original party.

Q/ Allegations have been made against the Congress that it, too, has encouraged defections.

A/ I am not discussing whether one party’s record is good or another party’s record is bad. All I am pointing out is that under the Tenth Schedule, as it stood and as it stands, it has proved to be a complete failure.

Q/ No party has got a clear majority in the Lok Sabha elections. Do you fear that defections could begin again?

A/ I don’t think so because the BJP has two allies who bring 28 seats to the alliance, and with some smaller allies, they cross 272. If one of the two allies were to withdraw support, then I think the game of defections may start. But as long as both the allies stand by the BJP, there is no compelling reason why they should encourage defection. But that does not mean that the BJP will not encourage defections. It is in the BJP’s DNA to encourage defections.