The relevance of India’s anti-crossover provision for SL

Abolishing the executive presidency:

By C .A. Chandraprema-June 10, 2018, 10:02 pm 

Whenever any discussion about the abolition of the executive presidential system comes up, one of the main points raised by those who argue in favour of retaining the executive presidential system is that once this system is abolished and power passes on to a parliamentary executive, any interested party, including foreign parties will be able to get anything they want done by simply bribing MPs. They fear that governments will be formed and fall entirely on the basis of MPs being bought off. This is a justifiable fear given the things that have happened in this country. Even though many people think that bribing MPs is a phenomenon that appeared only after the introduction of the open economy, there have been plenty of instances when MPs and ministers faced accusations of corruption even in the 40s, 50s and 60s.

The crossover of 1965 which brought down the first Sirima Bandaranaike government is also attributed to bribery. India passed its anti-crossover law in 1985 under the Rajiv Gandhi government in the form of the 52nd Amendment to the Indian Constitution. The statement of objects and reasons of the amending Act stated among other things; "The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it."

The 52nd Amendment added the Tenth Schedule to the Indian Constitution which provided as follows:

A member of either house of the Indian Parliament will be disqualified from being an MP if he has voluntarily given up membership of the political party through which he was elected or nominated to Parliament, or if he votes or abstains from voting in Parliament contrary to any direction issued by the political party to which he belongs.

2. An independent candidate who wins an election shall be disqualified from being an MP if he joins any political party after such election.

Disqualification on grounds of defection will not apply in case of a split. If a split takes place in a political party and more than one third of the MPs belonging to that political party join the dissident group, it will be recognized as a separate group in Parliament. In such an event, disqualification on the grounds that he has voluntarily given up his membership of his original political party; or that he has voted or abstained from voting contrary to the directions of his party will not apply. From the time of the split, the faction to which he belongs will be deemed to be the political party to which the MP belongs for the purposes of the provisions of this law.

A member of a House shall not be disqualified under this law if his original political party merges with another political party. The merger of the original political party with another political party will be deemed to have taken place only if not less than two-thirds of the MPs in the party concerned have agreed to such merger.

5. The Speaker or the Deputy Speaker will not be disqualified under this law if he by reason of his election to such office, voluntarily gives up membership of the political party to which he belonged.

6. On the question whether an MP has become subject to disqualification under this law, the Speaker’s decision shall be final. No court shall have any jurisdiction in respect of any matter connected with the disqualification of am MP under this law. The Speaker may maintain registers or other records of the political parties to which MPs belong.

According to the way the Indian courts have interpreted this law, if an MP publicly opposes his party or states his support for another party, that could constitute ‘voluntarily resigning’ from a party. One of the major criticisms of this law is the Speaker’s absolute power in deciding on disqualification of MPs. However, the general consensus in India appears to be that this law has succeeded to a reasonable extent in establishing party stability. In 2001, the National Commission to review the working of the Constitution headed by a former Chief Justice of India M. N. Venkatachalliah made some recommendations to further strengthen this anti crossover law among which were the following:

1. All defecting MPs whether individually or in groups be made to resign their seats forthwith and face by-elections.

Such defectors must be debarred from holding public office as a minister or any other remunerative political post for the duration of the remaining term of the existing legislature.

3. The vote cast by a defector to topple a government should be treated as invalid.

4. The power to decide on questions of disqualification on grounds of defection should vest in the Election Commission instead of in the Speaker.

In the event that Sri Lanka abolishes the executive presidency after electoral reform to ensure stable governments, India’s experience with the anti-crossover provision can be drawn on to ensure the stability of governments and the political party system.