'We have made an ass of the anti-defection law': Abhishek Singhvi

UNFORTUNATELY, TALKING ABOUT the Tenth Schedule and defections forces me to use the Shakespearean adage, “the law is an ass”. We, the operators of the Tenth Schedule, and that means all stakeholders and not just politicians, have actually made it an ass. If I tell you the kind of jugaads we have adopted on the subject of defections, you will actually start laughing. And it would be really comic, were it not tragic.

If Gaya Lal was alive today, he would go and jump off a cliff for not having thought of any of these things!

Let me give you a few examples that may shock you. They may amuse you, but, above all, they will tell you all about our great genius to render non-functional something created with the highest ideals, distort something intended to be noble and high.

First is a fundamental question about the speaker’s post. We have adopted these things from Britain. In the old days, speakers were elected unopposed and had credibility by virtue of being genuinely unaffiliated. That is the first reform we need. The rhetorical sermonising from the pulpit, that when I sit on the speaker’s chair I leave behind all of my affiliations and I am not political, that is just not true. The speaker cannot at all sever his umbilical cord. He is a partisan person of a political party. Speakers of the assembly and the Parliament must be elected unopposed and given full authority to be independent.

The fulcrum of the Tenth Schedule is the speaker―the persona designata. The only one who can decide on complaints under the Tenth Schedule. The chosen arbiter. The persona designata has to be brutally and genuinely independent.

Secondly, now, the inbuilt delay [in deciding defection complaints] arises from the politics of it. If I am party A, and you defect from my party and join party B, a speaker of party A will immediately take up the complaint and take a decision. But, if the speaker belongs to B, there are any number of cases where the speaker will indefinitely and interminably prolong the complaint for months, or even years. I have handled cases in Tamil Nadu where the speaker did not decide for years. I go to the High Court, which says we cannot give a direction to the speaker. We go to the Supreme Court, which says, yes, we can give a direction to the speaker, let the speaker decide within so and so time. Then the speaker seeks extensions and finally decides three months before the end of the tenure of the assembly!

In Manipur, in his usual style, Justice [Rohinton Fali] Nariman met the issue head on and prescribed a period of three months. Unfortunately, that is completely observed in the breach because it is not statutory.

Eknath Shinde | Amey Mansabdar

Thirdly, it is a misconception that there is a two-thirds split concept in the Tenth Schedule. There is no such thing that you go with two-thirds number and you are immune from the law. You become immune only if two-thirds go with you, and I repeat, and merge with another political party. The second part is forgotten by everyone.

Take, for example, the Maharashtra case. [Eknath] Shinde and team are clearly defectors because there is no merger with any party. But that part of the explicit text of the Tenth Schedule is ignored.

Fourthly, the time you take in deciding whether you have voluntarily given up your seat is mostly a waste of time because now there are enough judgments which say that myriad situations of a diverse character will constitute giving up your seat. I do not have to say I join you, or I defect to you. If I am seen with you, accompanying you in the bus to the governor, and standing with the governor with the list of people, that is also defection. If I write to you, if I support you, if I vote against you, or I abstain from voting, these are each taken up as a de novo paradigm every time the case comes up and speakers spend days and months on it, to delay matters, even though earlier judgments have definitively decided that these are all defections.

Fifth is the period of notice. Normally, assemblies have a provision providing for either 14 days or seven days. This is done for good, positive reasons of natural justice. But it can be easily misused. Take, for example, a case where a budget session is going on and I am a defector. I leave your party and directly vote in the budget session the following day. As you know, on a vote on a money bill, the government can fall. Now, I have defected, the government has fallen, but I will then seek seven days’ notice. I will continue to enjoy the fruits of my defection. I will continue to be an MLA. But in the recent case in Himachal Pradesh, the speaker, rightly―by the way, in Himachal Pradesh, I was a victim [of defections]―said I am giving you one day’s notice. What is the need for a notice? In the Rajya Sabha election, you have to show your vote. You have voted contrary to the party whip and that means you are defecting. So he gave them one day’s notice and disqualified them. Otherwise, the government would have fallen as the budget session was on.

Sixth is probably the most absurd, which is now fortunately pending for consideration before a larger bench of the Supreme Court. A five-judge bench of the Supreme Court, in the Nabam Rebia judgment said that if I defect, but at the time of defection or before defection, I level a genuine allegation about the speaker―lack of faith, bias, etc―then the speaker is disabled from deciding on the complaint against defection as long as a notice seeking his removal is pending. Now, this paragraph is, first of all, wrong and loosely worded. Second, look at the bizarre ways in which this is being misused. This happened in Maharashtra. All the defectors sat together and decided they are defecting. They know they will be disqualified immediately by the speaker because they are going away to other cities, sitting with the other side, openly cohabiting with the BJP. So before leaving Mumbai, they make a complaint against the speaker. When the speaker takes up the disqualification petition, there is an objection to it. He cannot decide on it.

Unfortunately, with great respect to the Supreme Court, an erroneous order was made disabling the speaker from deciding, allowing the defectors to enjoy the fruits of defection. It is like saying that I disable the judge by making an allegation and I will go and commit a criminal act.

Seventh is another stratagem, another jugaad adopted in India, which the framers of the Tenth Schedule or Gaya Lal never even dreamt of. You will find this new stratagem in the Maharashtra cases, and I have done all these cases. Say I am defecting tomorrow, and today I file a complaint in the Election Commission saying I am the real party, please give me the symbol and decide on my petition. And then, I defect. Consequences follow as per the Tenth Schedule. But before the speaker decides, and he could be delaying, because of either a friendly Central government or a friendly EC, I get my EC complaint decided first. The EC decides I am the real party, the symbol is mine, and that is then used to say there is no defection.

Now, the Supreme Court in the Sunil Prabhu case (petition filed by the Uddhav Thackeray faction) has rightly debunked this. The Supreme Court has specifically said the EC and the Tenth Schedule operate in different spheres. It is ridiculous to say that the EC, operating under a non-statutory symbols order (Election Symbols Order, 1968) with the speaker operating under the Tenth Schedule of the Constitution, will be able to render the speaker’s decision infructuous.

Eighth, an important point is the retrospective aspect of defection which is frequently forgotten. I defect today, you are the speaker, you delay, or you do not delay, I delay the decision-making by filing applications, and you take one year to decide. In that one year, the government falls, the defectors form the government. But when the decision comes a year later, it is found that you have defected. Now, the law is clear. One year later, when the decision of the speaker comes, it relates back, because the act of defection happened one year earlier. That decision applies from the inception, which means on the day the new government was formed, it was formed by the vote of defectors. What this means is that those votes have to be excluded and the government has to go, which is exactly what happened in the Sunil Prabhu case.

Ninth, and this is the amazing part―the Supreme Court said, yes, there is defection in the aforesaid Sunil Prabhu case and the judgment on defection must relate back, and so, it must be deemed that the voting in the floor test was invalid because it had the votes of defectors. But then, the Supreme Court, with great respect to them, nullified that conclusion by further finding that you are not liable for a change of government because Uddhav Thackeray did not take the floor test. That is irrelevant. You have to only exclude the votes of the defectors. If I decide not to take part in the voting on the floor, how does that change the illegality of defection?

Tenth, take another example. Suppose the BJP is in power and a Congressman defects to the BJP. That Congressman is not disqualified because the speaker is considering the petition for six months. He is made a minister as a reward for defection. He does not have to be re-elected for six months. This encourages defection. You have to prohibit such ploys by saying you cannot be a minister without an election in such cases.

I have given you many examples. Do you not think this kind of jugaad, distortion, manipulation, deceit and lack of bona fides make the law an ass? Then, eleventh, my final point, does it not make it necessary to scrap the Tenth Schedule and have a simple rule that the moment I cross over, irrespective of one-thirds or two-thirds, irrespective of party A or party B, I just have to fight another election.

Also, twelfth, let us have an independent constitutional commission to decide on defections, or change the way the speaker is appointed.

Otherwise, it is a sham. It makes a mockery of our system. And there are much higher consequences, because one man, one vote, free and fair elections and level playing field for elections are all part of the basic structure of the Constitution. One man, one vote becoming two defections, one vote... you are actually affecting the basic structure. You are affecting democracy itself. So it is time to completely overhaul the system.

Singhvi is a four-term sitting MP and one of the country’s leading lawyers. He is former chair of three parliamentary standing committees―commerce, law and home; member of the Congress working committee; former additional solicitor general of India; senior national spokesperson of Congress; chair, Congress department on law, human rights and RTI; author and well-known media face.

As told to Soni Mishra