National

Slip Through The Loopholes

As events in four states show, the anti-defection law isn’t effective. It needs a major overhaul.

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Slip Through The Loopholes
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  • In Telangana: Out of 15 elected MLAs of TDP, 12 have already joined the ruling party, the Telangana Rashtra Samiti
  • In Andhra Pradesh: 16 MLAs from the YSR Congress have switched sides and joined the ruling Telugu Desam Party
  • The Demand: The anti-defection law has failed to stop defections. Jurists think it’s time to review and rejig the law.

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The anti-defection law, late parliamentarian Madhu Lim­aye had complained, while legalising ‘wholesale defection’, had stopped short of preventing ‘retail defections’. Events in Uttarakhand over the past few weeks, Arunachal Pradesh earlier this year and in Andhra Pradesh and Telangana prior to that indicate that his apprehensions were not misplaced.

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The day before the Supreme Court-monitored floor test was conducted in the Uttarakhand assembly on May 10, Congress MLA Rekha Arya was found missing from Mussoorie, where all Congress MLAs were herded together to prevent them from being ‘lured’ or ‘abd­ucted’. No surprises, the next morning she arr­ived at the assembly with BJP legislators, flashing a victory sign, indicating a switch of sides. Meanwhile, BJP’s Bhim Lal Arya, suspended earlier for praising Uttara­khand’s Congress chief minister, Harish Rawat, arrived at the assembly alone and apparently voted in favour of the Congress.

The two ‘defectors’ run the risk of being disqualified under the 31-year-old anti-­defection law. But following the unprecedented floor test without a gov­e­rnment and a speaker, neither the two MLAs nor the two national parties seemed unduly bothered about the risk or constitutional niceties.

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What could have prompted Rekha Arya, till recently seen protesting against the dismissal of the Harish Rawat government in public, to switch sides? Even when one discounts allegations of allu­rements offered for a switch, the fact that polls are due in the hill state next year may have weighed with her. For dissatisfied MLAs, the option of changing sides at a time of impending elections must have been tempting.

An even more glaring example of the abuse of the constitutional provision is cited from Telangana, where a TDP MLA was sworn in as a minister in the TRS government headed by chief minister K. Chandra­sekhara Rao. Talasani Srinivas Yadav took over as the commercial taxes minister in December 2014, when he had claimed to have resigned from TDP. But even six months later, his name continued to figure as a TDP MLA. In response to an RTI application, the Speaker’s office said it had not received any intimation of that resignation.

Yadav’s actions should have been held as amounting to defection and he should have been disqualified under the Tenth Schedule of the Constitution. But no action was taken. The speaker took his time to ens­ure that the required number of TDP MLAs switched sides before recognising them as part of the TRS Legislature Party in the assembly.

Under the law, the speaker’s decision is final. But no time-frame is prescribed for him to take a ‘final’ decision. An irate Vijay Bahuguna, former Uttarakhand chief minister and a Congress rebel, questions the role of the speaker. “The decision on disqualification should be left to the Election Commission of India or the President. The speaker usually belongs to the ruling party and is partisan in such cases, acting to protect ruling party interests,” he told Outlook after he and other eight Congress rebels were disqualified by the speaker and the high court refused to intervene.

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Lok Satta leader Jayaprakash Narayan, a strong supporter of the 91st amendment, now feels betrayed and says the law needs to be changed. Lamenting that strong opposition leaders are being inc­reasingly silenced in legislatures, he aff­irms that a ruling party, by definition, controls the speaker.

“Any defection against the ruling party is ruthlessly put out, while a defection favouring it is routinely ignored by the speaker. Legislators desperate to nurture their constituencies cannot get anything done if they are not in government. This is what propels them to change sides,” says Narayan.

While politicians have made a mockery of the anti-defection law, constitutional experts agree on reviewing the provisions. The Dinesh Goswami Committee on Electoral Reforms (1990) and the Law Commission in 1999 had also recommended a review. While the committee recommended restricting the law to confidence motions, the Law Commission had then suggested that parties issue whips only on voting that may lead to the government falling. Critics have been pointing out that the anti-defection law prevented MPs and MLAs from freely voicing their opinion on public issues, forcing them to toe the party line even if they were personally opposed to it.

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While the role of both the speaker and the governor have come under a scanner for the arbitrary ways in which the law has been administered, the BJP has given confused signals on its own stand. While the Union parliamentary affairs minister Venkaiah Naidu believes the role of the speaker in Uttarakhand was dubious and needs to be reviewed, the Centre informed the Supreme Court in a separate case that the Lok Sabha speaker’s rulings were final and courts did not have any jurisdiction to adjudicate on them.

Defections in Arunachal and Utt­arakhand have drawn national attention, but in Andhra and Telangana the ruling parties, Telugu Desam Party and Tela­ngana Ras­htra Samiti, have been encouraging opposition MLAs to jump ship. In Tel­angana, the TRS had launched an exercise, rather blatantly named ‘Operation Akarsh’, and thrown its doors open to TDP MLAs. Out of 15 elected MLAs of TDP in Telangana, as many as 12 have joined the TRS. Since the law permits a bloc of at least two-thirds of MLAs to merge with another party, TDP lost out when the speaker finally recognised the merger of the Telugu Desam Legislature Party in the TRS.

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K.P. Vivekanand Goud, a TDP MLA who joined the TRS, believes that the merger’s time had come. He was elected on a TDP ticket from Quthubullapur (Telangana). “The TDP is now confined to Andhra Pradesh and has no political space here,” he argues. Andhra Pradesh chief minister Chandrababu Naidu, who had cried foul at the engineered defections in Telangana, is busy following a similar policy in his state. He has now absorbed 16 MLAs of the YSR Congress into the Telugu Desam.

In Andhra Pradesh, the YSR Congress had a strength of 67 MLAs in the assembly. The legislators did not have the required numbers to meet the stipulated criterion. The YSR Congress duly complained to the speaker about the defections; he has kept the complaint petition pending. Compare this to the Uttarakhand case, where the nine rebel Congress MLAs, who supported the BJP for division of votes on the Appropriation Bill, were promptly disqualified by the speaker.

Justice Sudershan Reddy, retired Supreme Court judge, remarks sarcastically on the similarities in the two Telugu-speaking states. “The way parties organise defections, the way our chief ministers function, the manner in which speakers are discharging their duties, are completely similar,” he says, recalling how the anti-defection law was meant to stop horse-trading. “The Constitution trusted speakers to discharge certain constitutional obligations. But when the speakers refuse to act in an appropriate manner, the constitutional provisions are themselves rendered void.”

But defecting MLAs in both states remain defiant. Jyothula Nehru, YSR Congress MLA from Jaggampeta in East Godavari, says with a snigger, “Maa pani memu chesukuntamu, vaalla pani vaallu (We will do our thing, let them do theirs).” Nehru explains that he wanted to achieve four major goals for his constituency—an industry, housing sites, an irrigation project, and healthcare and education facilities. “All of these have been promised to me. What more do I need as an elected representative of my constituency,” he asks.

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Retired Supreme Court judge P.B. Sawant believes that the existing anti-­defection law should be scrapped and a new law should be brought in. “A new law is required to ban defections and which would require the defector to seek a fresh mandate from the people, because otherwise it would be a betrayal of the people who have voted for him for being from a particular political party.” There is enough potential for political turmoil in coming years for Parliament to consider his recommendation.

By Bula Devi in Delhi & Madhavi Tata in Hyderabad

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