Kerala ordinance banning defections
may politicise local bodies further
Venu Menon in Thiruvananthapuram
The Kerala Local Bodies (Prohibition of Defection) Ordinance was promulgated recently with a noble intention: to eradicate unethical politics from urban and rural local self-government.
But it could end up doing just the opposite.
The ordinance has been trumpeted by the ruling Left Democratic Front as a model for other states to follow. And the political establishment in Kerala is broadly united in this view.
But discordant notes have also emerged, on two counts.
First, the ordinance coincided with the agitation launched by the Congress and its allies at Payyavur panchayat (village council), Kannur district, to focus attention on what they describe as a brazen attempt by the Communist Party of India-Marxist, dominant partner in the LDF, to subvert panchayati raj (local self-government).
The charge was made after Congress members were cordoned off by the police and prevented from attending a crucial no-confidence motion against the council president. The president belongs to the CPI-M.
Congress politicians say the police acted at the LDF's behest, a charge denied by the CPI-M, which says the members were detained as part of a riot-control measure because a large crowd had collected at the scene.
The matter is now being heard in the Kerala high court.
Congressmen suspect the ordinance is an outcrop of this imbroglio.
Second, some of the provisions of the ordinance defy legal scrutiny and have raised eyebrows even in the ruling front.
The ordinance bans defections with retrospective effect from October 2, 1995, when the local bodies were constituted under the Kerala Panchayat and Municipalities Act.
Under the ordinance, a member elected as the candidate of a political party or coalition will invite disqualification if s/he resigns from the party or coalition or defies the party whip during a vote.
Disqualification also follows if a member shifts from one party/coalition to another.
Members have also been made subject to the directions of the party/coalition with regard to their conduct at all meetings of the local body.
The ordinance also invests the state election commission, which has quasi-judicial powers, with the authority to decide defection cases. All decisions by the commission prior to the ordinance are now deemed to have been taken under its authority.
Thus, Election Commissioner M S Joseph's landmark decision in 1997 disqualifying the deputy mayor of Thiruvananthapuram on grounds of defection stands vindicated.
The ordinance purports to fill the gaps in the Kerala Panchayat Act, which was conceived by the Congress-led United Democratic Front. The LDF is taking the credit for adding the anti-defection component that had been left out by the UDF.
"It did not seem necessary then," argues Leader of the Opposition A K Antony, who was the chief minister when the KP Act was formulated. "Now that defections are on the rise, such an ordinance is relevant. But we don't agree with some of its provisions."
One such provision is the punitive clause. Says advocate Cherniyoor Sasidharan Nair: "The punishment is two-fold for the same offence. The member is disqualified and also debarred from contesting elections for six years. This is not in keeping with the Constitution."
Besides, the ordinance is legally untenable in imposing this punishment with retrospective effect.
A more fundamental flaw is that the ordinance differs with the Constitution on the status it accords an independent member.
Under the Tenth Schedule of the Constitution, an independent member of a legislature forfeits his membership of the house if he joins a political party. The Kerala ordinance, however, allows an independent member of a local self-government body to join a political party or coalition at will. It only prohibits him/her from leaving that party/coalition later on.
At the same time, the ordinance says nothing about the shifts that occur at the level of political parties and coalitions, such as mergers and splits.
These anomalies have fuelled fears that the ordinance will politicise the panchayati raj institutions and the development process in rural areas, a point LDF leaders concede in private.
Everyone says politics should be kept out of local bodies, that decisions on community development should be taken on the basis of consensus rather than being put to vote.
But with the ordinance, that may prove to be wishful thinking. By herding local self-government functionaries under a broad political whip, the ordinance has effectively concentrated power in the hands of political parties.
The moral is obvious: the politician cannot be separated from the political motive.
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