A lame Lokpal as the UPA farce ?

By Jagdeep Dhankhar ?

The movement for a powerful anti-corruption body has occupied the centrestage of national discourse today. Battered by the mega scams the common man has rallied spontaneously around Anna Hazare to secure an effective Lokpal Law that can deal with the menace of corruption.

This demand has caught the mood of the nation and attention of our Parliament. However, during the thick of the Anna Hazare movement a sudden twist was imparted to the Lokpal controversy when in an unusual manner  during the Zero Hour in the Lok Sabha, Rahul Gandhi suddenly made his formulation that Lokpal needs to be given Constitutional Status. This was hailed in some sections indicating that by this step the Lokpal will have teeth to bite. 

The issue that obviously arises is “Does a law become more efficacious and sacrosanct by the mere fact that it is made part of the Constitution ?”

This calls for an assessment of the Anti-Defection Law that too was made part of the Constitution more than twenty five years ago.

The Anti-Defection Law was passed in the year 1985 by the Parliament. At that time the Congress Party had the unprecedented strength of over four hundred MPs in  the Lok Sabha. Congress Party then  did not suffer from any compulsions  of “coalition dharma”. It was well positioned to give the Nation an effective Anti-Defection Law.  The 52nd Amendment  was effected in  the Constitution. Anti-Defection Law became  the Tenth Schedule to the Constitution.

The main intent of the Anti-Defection  Law was to combat “the evil of political defections” and overcome the  shameful phenomenon of “aya ram and gaya ram.”

The events since enactment of this Anti-Defection Law over the years   leave no manner of doubt that this law enjoying Constitutional Status has miserably failed to curb malaise of defections. Few will dispute that working of the Anti-Defection Law has left much to be desired. Analysis will reveal that this Anti-Defection Law under the Tenth Schedule  of the Constitution has achieved the very reverse of what was intended.

Rather than curbing defections, it has facilitated the same. Unprincipled politicking has only got a fillip. Several governments are in place thanks to the flaws in this law. Rather it has promoted the evil to suit the design of the party in power. The working of this Anti-Defection Law that enjoys Constitutional Status fully exposes the myth that a law is effective by the mere fact that it has Constitutional Status.

The Anti-Defection Law has rendered the Speaker an alternative centre of power. It has positioned the Speaker as the authority to determine the issues under the Anti-defection Law. This flawed provision has generated several undesirable consequences.

Well meaning efforts to overcome this fundamental lacunae have been ignored inspite of meaningful recommendations. Resultantly, over the years, this Constitutional  status law has become a problem in itself. One is left to wonder whether in the first place it was well intentioned.

Dinesh Goswami Committee on electoral reforms in 1990 recommended that  the issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission. Subsequently the Law Commission reiterated the same. Acceptance of the recommendation would have made this Constitutional Status Anti-Defection Law effective.

How this Constitutional Status Anti-Defection Law has virtually made a bon fire of political  propriety over the years is for all to see. However, recent alarming events in Rajasthan and Haryana are eye openers.

In 2008 the Congress Party in Rajasthan  failed to secure majority on its own in the 200 member assembly. This was also the situation in 2009 in Haryana where the Congress  failed to secure majority in a house of 90. In both Rajasthan and Haryana the majority was secured by engineering defections.

In Rajasthan all the six MLAs elected on the BSP symbol lent force to the Congress Government; merged with the Congress Party. In the process, all of them  managed to hold plum posts. All of them either became Ministers or Parliamentary secretaries.

The situation in Haryana was no different. Five legislators elected on Haryana Janhit Congress-Bhajanlal (HTC-BL) joined the  Congress. Of these, three came to hold office of profit. Two became Ministers and one became Parliamentary Secretary. These events indicate a low ebb in Indian politics. Propriety and morality became casualty.

In both the situations disqualification proceedings were initiated before the Speaker of the Assembly. The defections were to buttress the prospects   of the ruling party to which the Speaker belongs in both the cases. The outcome was obvious. In both the cases, the Speaker did not see any urgency. What a travesty of justice, —the years passed by and the defectors continued to share the fruits of  the office of profit and the all critical issue of disqualification  made just no headway.

In desperation, in both the cases High Courts were approached. In a judgment that has evoked both hope and admiration, a Division Bench of the Punjab and Haryana High Court on Dec 20, 2011 in a blow to Haryana Government held that the Assembly Speaker had engaged in “unnecessary delay” in deciding the disqualification petitions against  the five MLAs who switched to Congress after being elected on HJC-BL tickets. In a significant direction the High Court declared all five as “unattached members” of the House.  They are not to hold any office of profit and the Speaker has been mandated to decide the matter by end of April 2012.

In Rajasthan, the situation is all the more glaring and of deep concern for propriety of the office of Speaker.   All the BSP members are merrily enjoying the fruits of their office of profit. The petitioner who sought disqualification is trying in vain to seek effective hearing.

The events indicate that the Speaker in both the cases has taken wind out of this law that has Constitutional Status. In the process the dignity of the august office of Speaker has been ravaged. Those in power are not concerned because they are the beneficiaries. Such a situation is indeed shameful for our democracy. Such lack of accountability by Speaker of the Assembly does not augur well for our democracy.

The Supreme Court this year while terming the action of the Karnataka Speaker “hasty” called upon the Speaker to be fair, impartial and independent. The conduct of the Speaker of the Assembly both in Haryana and Rajasthan has been far from the expectation of the Supreme Court.

In view of judicial intervention in Haryana matter, one would not be surprised with the Speaker in that being on fast track. The events need to be watched with interest and concern.

The core issue is—Can the Speaker owing allegiance to a political party ever go against the interest of the party ? Surely the answer in most cases would be negative. Why then in the first place this Constitutional Status Anti-Defection Law so provided? Why recommendations that the decision of disqualification be rendered by the President/ Governor on the advice of the Election Commission were ignored ?

All these painful issues have arisen because a flawed law was given constitutional status.

Are we heading for such a flawed Lokpal Law that like the Anti-Defection Law will end up achieving the very reverse of its laudable object.

The dragon of corruption can be beheaded only by an effective Lokpal Law. It is of no consequence whether it has constitutional status.

(The writer is Senior Advocate, Supreme Court and President, Center for Human Rights and Justice)