'Defection should be referred to EC or judiciary': Subhash C. Kashyap

Interview/ Subhash C. Kashyap, former secretary general, Lok Sabha

A highly respected constitutional expert, the 95-year-old Kashyap’s two-volume book Anti-Defection Law and Parliamentary Privileges is insightful and incisive. He told THE WEEK that the law has been ineffective in stopping large-scale defections and suggests that the speaker should not be the deciding authority under the Tenth Schedule. Excerpts:

Q/ What was the backdrop for the enactment of the anti-defection law?

A/ The contours of politics in India underwent a radical change post 1967. The age of one-party dominance was over. The most important development was the formation of coalition governments of widely heterogeneous elements in several states and the change of their political labels by legislators in large numbers, thereby affecting the fate of ministries and course of political power. Of the 16 states that went to the polls in February 1967, the Congress lost absolute majority in eight and failed to form its government in seven of them. Even in states where the party retained control, its strength was much depleted and in the case of some of these states, defection by a few members could ruin its majority and turn it into a minority party.

Significantly, almost every single case of collapse of state government during this period was the direct result of change of allegiance by legislators. Empirical data shows that by the end of March 1971, some 50 per cent (2,000) of all legislators (4,000) had defected from their parties at least once. One legislator defected five times to become a minister for a few days! With an average of more than one legislator changing his label each day and for some time about one government falling each month, it is not surprising that the subject came to be discussed rather widely.

Q/ As the anti-defection law completes 40 years, the general opinion is that it has failed in its aims and objectives.

A/ The Constitution (52nd Amendment) Act, 1985, sought to outlaw defections. Besides questions raised about its constitutionality and advisability in a parliamentary democratic setup, the anti-defection law has not been able to prevent the malady even though it was amended by Constitution (91st Amendment) Act, 2003, which provided to place a limit on the number of ministers, so that they could not be more than 15 per cent of the number of members in the Lok Sabha and legislative assemblies. For the state level, however, a proviso was added stating that the number of ministers in a state shall not be less than 12 to take away the protection from defectors on grounds of splits, and to make defectors ineligible for being appointed as ministers or on any remunerative public office until re-election.

Q/ In focus is the role of the speaker. Should there be an alternative mechanism to decide on disqualification petitions?

A/ I have always been of the view that the office of the speaker or the presiding officer should not be involved in deciding cases of defection of legislators and these should be referred to the Election Commission or the judiciary.

 A view expressed on the law is that it has been ineffective against large-scale defections which result in governments falling and political instability.

That the anti-defection law has been ineffective in solving the problem of large-scale defections by the legislators for money or office is evident. There have been more defections per year in the post anti-defection law period than in the period before its enactment. Also, more governments have fallen after the anti-defection law.

Q/ There is a view that the law has been ineffective against wholesale defections, which result in governments falling and political instability.

A/ That anti-defection law has been ineffective in solving the problem of large scale defections by the legislators for money or office is evident. There have been more defections per year in the post anti-defection law period then in the period before enactment of the anti-defection law in the Tenth Schedule of the Constitution. Also, more governments have fallen after the anti-defection law.

Q/ An argument made against the Eknath Shinde and Ajit Pawar defections in Maharashtra is that while a split took place, no merger happened. But the factions got the party symbol and name while their disqualification petitions were pending. Your views.

A/ It may be pointed out that by the 91st Amendment to the Constitution, split has ceased to be relevant in case of defections. The question of disqualification of members and merger of parties as a defence has to be decided by the speaker. The recognition of political parties and allocation of symbols has to be decided by the EC, which was done. It would have been better if the question of disqualification of members had been not kept pending and decided by the speaker earlier. The unfortunate position would not be a [problem] if disqualification was also referred to the EC.

Q/ Can the issue of political morality be solved by law?

A/ Even though the role of constitutional and legislative media cannot be completely ruled out as preventive, illustrative and deterrent, measures of political culture and questions of systemic morality and character of people cannot be tackled by law alone.

Q/ Your suggestions on how to make the law work or any alternative mechanism that needs to be put in place.

A/ Defections take place for toppling governments and in a situation of instability, I have been suggesting the election of the chief minister/prime minister by the House and removal by constructive votes of no-confidence, which would mean that the motion which expresses no confidence in the ministry also mentions the name of alternative leader to head the government.