Remedy worse than disease ..

By Cleofato A Coutinho
14 March 2010 11:36 IST

The women's reservation bill has been pushed through  in the Raja Sabha after it,  not being even allowed to be introduced in Parliament for 13 years and after the those opposing the bill were marshalled  out and the members of major political parties were ‘whipped' into voting for the bill.

 At stake was the government itself, as the government has wafer-thin majority in the Lok Sabha. The government staked its existence on earlier occasion in getting the nuclear deal passed. This time the government staked its existence over the women's reservation bill. It is said that the nuclear bill was the prestige of the prime minister while the women's reservation bill is the prestige of the Congress President.

On both the occasions the governments would not have collapsed in case the bills were defeated.  However,  in the case of nuclear deal there  were not much rumblings except that it was a view of the supporting parties that the government ought not to be sacrificed at the alter of the nuclear deal but overwhelmingly the ruling coalition was for the deal. So no problem.

In the women's' reservation bill, it is almost clear that overwhelmingly Members of Parliament are opposed to the bill. It is argued that the bill amounts to sacrificing their seats. On the basis of selfish interest, the Members of Parliament are opposed to the bill.

It is on record that there is a huge revolt in the principal opposition party, with almost 70% of the MPs opposed to the bill. That is what the chief whip of the principal opposition party informed a leading national daily.

One of the leading rebels, who was a former finance and external affairs minister and currently the chairperson of the public accounts committee, informed the press that he wished to be a martyr by defying the whip. Even in the ruling party, though the MPs have not come out in the open press, reports clearly indicate that the Members of Parliament are opposed to the bill.

The merit of the bill is not the subject here but the issue is the death of a debate in Parliament. The ruling party brought the bill before the House even without consulting the principal opposition, which was supporting the bill. And after the bill is bulldozed in Rajya Sabha, the government has now spoken of consultation and debate.  

This issue of consultation and debate is a serious one since the anti-defection law and the whip under it is used to bring about unity in voting. The anti-defection law came about to curb the evil of political defection motivated by lure of office or money. In a way, it was felt that people's mandate cannot be allowed to be made fun of by the voice of defections. It was in that context that dissent was sought to be curbed in making and unmaking of governments.

However, with the passage of time and particularly  now with the women's reservation bill, it is now clear that the fears expressed by the petitioners before the constitution bench of the Supreme Court that the issuance of whips would constitute a fragrant violation of fundamental principles and values, which are basic to the sustenance of Parliamentary democracy have come true. The Supreme Court trashed the arguments ‘right to dissent' and ‘freedom of conscience' against the backdrop of defections by use of money and power. That was in the context of formation of governments.

Fundamentally, what was accepted by the Supreme Court was that ‘loyalty to party is the norms, being based on shared beliefs.' The court was of the view that political parties function on the strength of the shared beliefs and that disparate stands by members of the same political party is not correct in a democracy. Thus, the basis was that a party stand would be worked out on shared beliefs and basis. It was never visualized that party bosses would turn the anti-defection law into party dictatorship when it comes to regular law making or in bringing Constitutional amendments. 

In India, unlike the west, tickets to contest election are issued by the party High commands and that principle applies for the ruling as well as the principal opposition parties. Thus, the Members of Parliament would naturally obey the diktat of the party. But to issue coercive method of whipping Members of Parliament into submission when they overwhelmingly are not supportive of the party stand does not argue well for democracy. The Members of Parliament have become mere messengers of the party. There is no doubt that the party image plays a role in the election. But the parties stand ought to be worked upon shared beliefs. Adv Ram Jethmalani, who spearheaded the arguments before the constitution bench pointing out that the ‘remedy is worse than the disease' and that the anti-defection law attempts to ‘throw baby with the bath water' seems to be coming true.

There is no doubt that defections have to be curbed. The whips would be issued by the party, but the birth of the anti-defection law was in protecting the people's mandate and to curb the evil of defections. The law was never thought of to stifle debate and discussion, which is the basic job of the Parliament. Whips ought to be restricted to those motions in Parliament without which governments would collapse or can be formed

Fourteen long years may have passed since the bill was first brought before the House. There has been hardly any debate on the bill. The details of the bill are not known to general public. Consensus could be built if the view of every body is taken into account. Law must be based on public discussion, debate in Parliament and shared beliefs of party members. However, high sounding the principles are - it would be the job of the party bosses to convince their members in Parliament and their rank and file.

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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Previous Comments

When more number of women enter Parliament, could this reduce the corruption? Or could it be that the men behind the curtain could still manipulate the unsuspecting and walk with the cake?

- vishwas prabhudesai, loliem | 15 th March 2010 08:12

 

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