What India needs is a Public Representatives Protection Programme
by Dr. Piyush Mathur
At a time when the whole world has been preoccupied with the unfolding crisis of Coronavirus, one of India’s states has been busy playing a bizarre political drama that Indian citizens have seen a few times too many in one state or another. This drama tends to have the following sequence of events—give or take a couple—and colouration:
For weeks or months, a given state’s ruling party or coalition (and sometimes even its opposition parties) would have been exhibiting dissent and fissures over power and/or personalities. Against that backdrop, rumours would have been rife among the people about which politicians from which party had been sulking and for what reason—and what type of attempts, if any, were being made to mollify them (and whether these attempts were being successful). Reporters would have been hot on that trail—prompting the politicians to make tall claims contradicting the rumours and underlining their own party’s members’ commitment to its unity, to the service of the state, and to the service of the nation-state itself. The politicians’ statements would usually come adorned with creative, evocative allusions to India’s ancient epics and mythic folklore—and they would tend to reinforce the loving metaphor of the (joint) family to refer to their own party or coalition while appreciating its internal democratic differences!
Then, a number of elected representatives from the state’s legislative assembly are suddenly found to be transported away to (or seeking shelter in) some far-off location within the country—usually before some crucial floor vote (or to force such a vote). This act of transportation generally takes place in the dark of the night and in secrecy—and the citizens come to know about it the next day through the media and the word of mouth. Immediately in the aftermath, a fierce political slugfest—with plenty of grandstanding—unfolds in full media glare, accompanied by legal challenges (or threats of legal challenges) and accusations of physical coercion as well as conspicuous bribery.
In the midst of the above drama, journalistic reports begin to trickle in about how the missing legislators are being feted by some senior dissenting leader or leaders at some luxurious resort or guesthouse (presumably to pamper them for the sake of their votes in the assembly)—even as these same legislators are claimed to have been held hostage by those from their own party. And even as the reporters try every which way to get a scoop on the developing story, local police cordon off the hideout—from leaders of the party to which the rebels belong, as also from parties vying to woo back the hiding malcontents. Sure enough, senior leader or leaders that would have arranged this coup (of an apparent mass abduction) also arrange to have these legislators release their own individual statements to the media: In the olden days, this exercise used to involve the release of simple press statements for the print media, or audio statements for the radio; subsequently, video clips or television footages became fashionable; now these missing legislators appeal directly to the public from their guarded resorts of luxury and importance via YouTube or Facebook or other such Internet-based video services.
This drama usually ends, in the short run anyway, with a floor vote; it may alternatively end with a formal legislative or legal recognition of the malcontents as members of a party not originally their own (in other words, with their validation qua turncoats); in some cases, these rebels are de-recognized (and they thus lose their assembly seats). In our current case, which began to unfold in Madhya Pradesh on March 10, a similar drama has led to the fall (on March 20) of the Indian National Congress’ (INC’s) government—which is likely to be replaced by a government headed by the Bhartiya Janata Party (BJP).
No matter which parties might be involved in it, this type of political drama is always marked by threats of violence and corruption; and while localized clashes and coercive acts underpin it entirely (sometimes in front of the media), there is no telling the heights to which the bribes—be they in cash or kind—are offered and accepted (not to speak of the depths of truth’s suppression that inevitably accompanies them). All in all, India loses plenty of resources (time and money) via missed days of governance through these episodes of elected representatives’ covert rebellions; above all, the citizens’ trust in parliamentary democracy weakens through them. When citizens witness politics in its degraded forms of naked power play, abject corruption, subterfuge, doublespeak, and violence, then they either lose all respect for it or come to cherish a warped view thereof that cannot be distinguished from organized crime.
The need for a Public Representatives Protection Programme (PRPP): a tentative proposal
In view of the above situation, what I propose is that India put in place a permanent Public Representatives Protection Programme (PRPP). Before touching upon its broad contours, let me suggest that this programme would strive to provide a safe and uniformly transparent framework for elected representatives wanting to switch their loyalties; it would thus serve to remove the drama (and most of its associated ills) from this recurring event of India’s politics.
I realize that India has had a so-called anti-defection law (the Tenth Schedule) in place since 1985; this law permits sitting legislators to switch their parties provided that those attempting to make this move constitute at least 2/3rds of the total strength of their party’s legislators in a given elected body. The anti-defection law, in other words, mandates that only a proportionate collective of legislators, rather than individual legislators, could switch their party loyalties without losing their elected seats; it thus presumes that the legislators attempting to make this type of a move would have already arrived at a consensus of sorts among themselves in its regard.
To some extent, the Tenth Schedule reinforces party whip inasmuch as it does not require that a legislator formally declare his or her intention to move from one party to another; instead, it allows the Presiding Officer and the courts to infer from the rebellious behaviour of a legislator whether he or she has defected or not: This behaviour is characterized based upon whether the legislator has or has not voted according to party line in the preceding days, weeks, or months; whether he or she has publicly voiced support for opposition parties or invoked them to form a new government, etc. As for Presiding Officers, they tend to be members of the ruling party or coalition.
All in all, this type of a setup gives a disproportionate amount of power of political arbitration to those already in power (whereby encouraging covert action); it also seems a bit dated given that it belongs to a bygone era when (even the legislators’) access to instantaneous multimedia communication could not have been taken for granted—and the culture of political communication had to be a certain way (whereby requiring a heavy reliance on inference—say, based upon locally released public statements or addresses). The PRPP that I am proposing would do the following three things to the Tenth Schedule:
rectify its inherently authoritarian, anti-democratic tendencies
vastly expand the scope of that law, in its modified form, beyond the legislative bodies to all of India’s elected bodies whose elections are contested by members of any registered political parties; and
provide a binding, politically neutral administrative framework for its implementation.
The broad contours of the proposed PRPP—and how it could be arrived at—are as follows:
The Parliament of India would empower—via a bill passed into an Act—the Election Commission of India (ECI) to articulate a Public Representatives Protection Programme (PRPP) for all of India’s elected bodies that see a direct or affiliated participation from registered political parties.
The PRPP Act would mandate that its provisions be enforced—via the PRPP itself—across the aforementioned type of elected bodies (instead of being restricted to the legislative bodies).
A key clause of the PRPP Act would countermand an existing rule within the Tenth Schedule that currently empowers the Presiding Officer of a legislative body to be the last port of call (preceding the High Courts and the Supreme Court of India) for any defections inside it. (Partly owing to this rule, ruling parties tend to have an outsize role in managing and manipulating defections—given that it is almost always one of their own members that also enjoys the powers of a Presiding Officer.) The PRPP Act would transfer the power and the responsibility to manage the requests for elected representatives’ defections from Presiding Officers to the ECI.
The PRPP Act would make it obligatory for wannabe defectors to make a formal request to the ECI regarding their desire to defect to another party—or to float a new party all their own. The PRPP itself would articulate the necessary procedures, relevant arithmetic, appropriate durations, and permissible frequency of such requests (per person per term) regarding such requests and their actualizations inside any given elected body involving any party-based participation. Above all, the PRPP Act would mandate that only a formal request to the ECI would trigger the procedure toward a defection inside an elected body with party-based participation; the act would prohibit courts from inferring whether an elected representative is a de facto defector or not.
The PRPP Act would also require the ECI to maintain a certain number of shelters across India for defectors that would have made their requests to it regarding an imminent defection. These shelters would maintain a strict protocol—which would include a standard of security apparatus, a minimum level of technological infrastructure, and a structure of media access to wannabe defectors. The PRPP itself would stress transparency—and full disclosure to the public—regarding all attempts at defections; it would also require wannabe defectors to furnish their updated tax records to the ECI alongwith their requests.
To the extent that the PRPP would prohibit courts from inferring whether an elected representative has defected or not, it would also prohibit political parties from unseating a sitting public representative from their own party based purely upon whether he or she has been adhering to the party line or not. A political party could of course deny its primary membership to a public representative elected on its ticket; however, it should not be allowed to unseat that person through that manoeuvre.
In other words, the PRPP, in the long run, would encourage India’s political parties to screen their own more responsibly—while also ensuring that those elected to public office accept greater personal responsibility for their individual votes inside their elected institutions instead of acting like juveniles under the supervisory gaze of the High Command.
So long as India does not articulate a constitutionally empowered public representatives protection programme such as the above, its citizens would continue to be subjected to the cruel jokes of utterly manipulated defections. That’s not democracy.
References
Narayan, Jenna (undated; presumably 2007) “‘Defect-Shun’: Understanding Schedule X to the Constitution of India” (Accessed on March 22, 2020 via the following URL: https://www.indialawjournal.org/archives/volume3/issue_1/article_by_jenna.html)
Relhan, Vibhor (December 6, 2017) “The Anti-Defection Law Explained” (Accessed on March 22, 2020 via the following URL: https://www.prsindia.org/theprsblog/anti-defection-law-explained)
Tenth Schedule of the Constitution of India: https://www.mea.gov.in/Images/pdf1/S10.pdf
A former fellow at the Indian Institute of Advanced Study, Dr. Piyush Mathur is a political philosopher and consultant. You may write to him by clicking on his name—or by contacting Thoughtfox. For his other publications, click here.