Defections and expulsions —A G Noorani

Our think tanks would do well to conduct a comparative study of the three laws and suggest a model law which is both effective and fair. The two crucial tests are definition of the offence of defection; it must punish the defectors, but not the dissenter. It must also provide independent judicial review

South Asia is the only place in the world in which parliamentary democracy is disfigured by anti-defection laws. Sri Lanka was the first to have them, followed by India to punish its aya rams, gaya rams. Pakistan followed to keep its lotas steady. After every election, legislators get restive and party bosses get anxious; so also on the eve of a confidence vote. The bosses have two weapons: anti-defection law and expulsion.

Last month the Communist Party of India (Marxist) disgraced itself by expelling a veteran of 40 years, Somnath Chatterjee, because he refused to resign as Speaker of the Lok Sabha on the eve of the confidence vote. He bravely followed the example set by Vithalbhai Patel, a Congressman who refused to resign from the office of the President of the Central Legislative Assembly in 1930 on the directive of the Congress leaders. He was praised for this.

There is the case of the PMLQ member of the National Assembly Kashmala Tariq who was expelled from the party for reasons that make no sense. She was late for the Assembly session convened to elect the leader of the House. Entry was sought, but refused. Eleven other party members also did not cast their vote. She had, besides, formed a group of around 15 MNAs on a reform agenda, a common practice.

In all other democracies the party whip is withdrawn from one who flagrantly violates party discipline and he is refused the party ticket for the next elections. But the disease erupted in India with such virulence in 1967, when the Congress lost its hegemony at the Centre and office throughout the northern belt, that it was felt that the law alone can provide a deterrent, if not a cure.

In 1985, Rajiv Gandhi pushed through a drastic law (the Tenth Schedule to the Constitution) to freeze his massive majority. He, however, ignored the report of a star-studded All Parties Committee, and left loopholes. Nawaz Sharif was moved by similar considerations when in July 1997 he got enacted the 14th Amendment which inserted Article 63 A in the Constitution.

Our think tanks would do well to conduct a comparative study of the three laws and suggest a model law which is both effective and fair. The two crucial tests are definition of the offence of defection; it must punish the defectors, but not the dissenter. It must also provide independent judicial review.

The Second Amendment to Sri Lanka’s Constitution, enacted in February 1979 amended Article 161 to provide an anti-defection law. Proceedings can be taken when an MP “ceases, by resignation, expulsion or otherwise to be a member” of the party. Does “otherwise” apply to a man who does not cease to be a member yet flouts its policies? The Speaker is informed of the cessation of membership.

A very fair remedy is provided to curb arbitrary expulsion. The member is entitled to move the Supreme Court. A Bench of three Judges decides “whether such expulsion was valid or not”. The Speaker appoints a Select Committee of MPs “to inquire into, and report to Parliament on the circumstances in which” the MP had resigned, or been expelled or had “otherwise ceased to be a member” of the Party. In cases of expulsion the Committee is appointed only after the Court has ruled that the expulsion was valid. In all cases Parliament resolves, after the Committee’s report, whether the MP has lost his membership.

The flaws are obvious. The definition is hopelessly vague, and, except in cases of expulsion, the judges on disputed defections are fellow MPs. The ruling party enjoys an unfair advantage.

The Indian law makes the Speaker, generally a member of the ruling party, judge in such cases; not the Election Commission. In 1992, the Supreme Court upheld this by a narrow majority (3-2). The Court agreed unanimously that an independent tribunal was necessary. But shutting its eyes to the realities, the majority held the Speaker to be “independent”. It is unlikely that the Court will affirm that in 2008. The law originally exempted party splits by one-third of the members, i.e. wholesale defections. This was deleted in 2004. Party mergers are still exempted.

Defection is precisely defined: “if he has voluntarily given up his membership” of the party. The Supreme Court has ruled that resignation is not the only factor; the real test is conduct on the whole. One would think that is properly a matter for judicial determination; not by the politician in the Chair. The other offence is violation of the party whip by his vote or abstention from voting. The Supreme Court has “read this down” to limit it to “a vote on the motion of confidence or non-confidence…or where the motion….relates to a matter which was an integral policy and programme” of the party “on the basis of which it approached the electorate”. This confines the motion to a manifesto pledge.

The law bars the jurisdiction of the courts: “Notwithstanding anything, no Court shall have jurisdiction in respect of any matter converted with the disqualification” of an MP under this law. The Supreme Court ruled that this does not bar challenges to the Speaker’s decision by writs to the Supreme Court and High Courts on the ground of malafides, bias, violation of natural justice, perversity and the like.

An expellee is free to join another party, which is why political parties resorted to the device of suspension. The Supreme Court’s judgement in 1996 that an expellee is guilty of defection if he joins another party is palpably wrong. Surely, the MP ceases to be a member of the party after his expulsion and cannot be said to have “voluntarily” given up its membership. This ruling by a two-member bench has been wholly criticised.

For the same reasons, clause 6 of Article 63 A of Pakistan’s Constitution cannot oust the Court’s jurisdiction, as it purports to do. The offence is unhappily defined. Violation of the whip, by vote or abstention, is one case. The other is if he “commits a breach of party discipline which means a violation of the party Constitution, code of conduct and declared policies.” This must be “read down” to cover grave and persistent breaches.

The remedy it provides is grotesque. The disciplinary committee of the part decides the matter on a reference by the leader who, no doubt, will exercise due care to pack it. “A personal hearing” must be accorded to the accused. And to whom does an appeal lie, pray? To the very person who initiated the proceedings, the party leader. This is not an appeal from Caesar to Caesar but from Caesar to his mistress, Cleopatra.

The leader’s decision “shall be final”. It is communicated to the Speaker who in turn transmits it to the Chief Election Commissioner who thereupon acts merely as a functionary — “shall give effect to such decision”. Of what avail the most precise of definitions if the dispute is decided by the very person who alleges defection? The only safeguard is that the Courts can entertain a challenge to his decision and do justice. The law is patently unconstitutional. It does not set up an independent tribunal to decide disputes.

As for expulsion, the party bosses’ other favourite weapon, a political party, like any unincorporated association such as a club, enjoys autonomy only within the parameters laid down by the law. A standard work sums them up in three propositions. First, “the power of expulsion must be exercised with meticulous attention to the rules which create it, and if any single formality is omitted the purported expulsion is of no effect.”

Second, “expulsion must be bonafide and in the interests” of the organisation and not from any “improper motive”. Last, where the rules provide for expulsion for conduct injurious to the organisation, “the power must be exercised not only bonafide but judicially”. The test is “reasonable and probable cause”. The rules of natural justice must be followed. The member “must have every reasonable opportunity of defending himself”.

The notice or charge-sheet must not be a recitation of comments but a list of precise charges covered by the rules with particulars specific enough to enable the member to respond. Geoffrey Howe and Norman Lamont delivered blistering attacks on the prime minister in speeches after resigning from the cabinet. No democratic party can treat that as a breach of party discipline. Why not bar defectors from public office for say a year. Turncoats want immediate returns.

We are prescribing a legal cure to a political disease. By all means mend the dents on the lota. But remember, no lota can be more steady than the ground on which it rests.

A G Noorani is a prominent lawyer and a commentator on regional affairs

Source: Daily Times, 25/8/2008

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