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Defecting from the Law

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is a visiting fellow at the Vidhi Centre for Legal Policy, New Delhi.

The impunity with which legislators in Andhra Pradesh and Telangana have ignored the anti-defection law points to certain weaknesses in the processes and norms laid down in it. What is required to remedy this, however, is not just a minor tweak, but a complete overhaul of the way the law works to adequately address the problem of defections by sitting legislators before it overwhelms India’s democracy.

I would like to thank Hemant Desai and Shraddha Upadhyay for their inputs.

Since it was inserted into the Constitution, the Tenth Schedule of the Constitution of India (the “anti-defection law”) has been a subject of considerable debate and controversy. It has been partially struck down by the Supreme Court in Kihoto Hollohan v Zachilhu (1992). Yet, the controversies and debates have led it to be amended again through the Constitution (Ninety-First Amendment) Act, 2003. In its 32 years of existence, political parties and legislators have come up with creative and ingenious ways of avoiding the rigours of the law, and it has taken much litigation, going all the way up to the Supreme Court,1 not to mention the 91st amendment, to curb these attempts.

However, recent events in Telangana and Andhra Pradesh show that the anti-defection law faces a new, devastating threat. It comes from the simple refusal of speakers to perform their constitutional duties under the law by not taking a decision as to the disqualification of a member of legislative assembly (MLA) within reasonable time. This means that an MLA, who has otherwise violated the Tenth Schedule by “defecting” to another political party, will not suffer the legal consequence of disqualification for such “defection,” but instead will continue to enjoy her seat. This effectively renders the anti-defection law irrelevant, with terrible consequences for India’s constitutional democracy.

Until the Constitution (Fifty-Second Amendment) Act, 1985 was passed, the Constitution of India did not use the phrase “political party” at all. Even though the Indian Republic has been a multiparty system, following the Westminster form of parliamentary democracy, the Constitution itself seems to be “blind” to the existence and operation of political parties. It is not as if India did not have experience with a limited form of multiparty democracy prior to the coming into force of the Constitution; this was what the Government of India Act, 1935 had enabled. Yet, it was only with the coming into force of the 52nd amendment to the Constitution, which introduced the Tenth Schedule to the Constitution, that the words “political party” were used for the first time in the Constitution of India.

The ostensible reason for the introduction of the Tenth Schedule was to curb the so-called “aaya-ram-gaya-ram” practices of Indian legislators. The inspiration for this moniker is said to be Gaya Lal, a Haryana MLA who changed parties thrice in the space of one fortnight in 1967 while retaining his seat as an MLA. Defections thereafter reached such epidemic proportions that the stability of some state governments was always in question, distracting from any semblance of good governance.

The Tenth Schedule was offered as the solution to this issue. But, almost as soon as it was applied in various legislatures, it was challenged in the Supreme Court as being against the basic structure of the Constitution. By a narrow majority of three to two, a Constitution Bench held in the Kihoto Hollohan case that the Tenth Schedule was largely valid, but read down paragraph 7 which tried to exclude judicial review of the speaker’s decision on disqualification. The minority judgment (authored by Justice J S Verma) held it to be against democracy, a basic feature of the Constitution, raising some valid concerns about the Tenth Schedule, notably its reliance on the position of the speaker to make an impartial adjudication when the post clearly was a partisan one. Subsequent years have proved the minority judgment right as speakers have only become more partisan.

One initial loophole in the law, that of defections being valid if a party “split,” was closed by the 91st Amendment Act. Multiple committees over the years had recommended that this loophole, which allowed “bulk defections” while penalising individual defections, be closed. Coupled with the constitutional limit placed on the number of ministers in a government, it was hoped that this would prevent the kind of unprincipled defections that the Tenth Schedule had tried and failed to stop.2 This did not necessarily work as intended.

Disregard for the Law

After the assembly elections in 2014, a troubling situation has emerged in Andhra Pradesh and Telangana in the context of the anti-defection law. As of date, 27 legislators are alleged to have defected from various parties to the ruling Telangana Rashtra Samiti (TRS) since 2014. The speaker, S Madhusudhana Chary, himself a member of the TRS, has not taken any decision on the disqualification petitions filed against these MLAs over these three years. Likewise, in Andhra Pradesh, the Telugu Desam Party (TDP) in power has been able to get 21 MLAs from the Yuvajana Shramika Rythu Congress Party (YSRCP) to defect to it, without suffering disqualification (Somashekar 2017). Here too, Speaker Kodela Siva Prasada Rao, a member of the TDP, has taken no decision on the disqualification petitions.

The speakers’ inaction in both these states is the latest manifestation of the underlying problem highlighted by the minority judgment in the Kihoto Hollohan casethe partisan role of the speaker. In the past, speakers’ decisions have been challenged before the Supreme Court and high courts, and set aside on various grounds.3 This new modus operandi to defeat the anti-defection law seems to avoid any possible judicial review.

Nonetheless, judicial review will not be taken away entirely. The Telangana impasse is under consideration in the Supreme Court of India (S A Sampath Kumar v Kale Yadaiah 2016) and the Andhra Pradesh case is in the Hyderabad High Court (Business Standard 2016). The Supreme Court has referred the Telangana case to a Constitution bench in an order dated 8 November 2016 and one hopes that the Court hears and decides the case before the completion of the full term of the legislative assembly. Before the Supreme Court, the Telangana speaker has raised the question as to whether a court can at all issue a direction for expeditious disposal of a disqualification petition under the Tenth Schedule. The key question before the Constitution bench is whether a high court or the Supreme Court can order the speaker to take a decision on such disqualification petitions.

The instances in Telangana and Andhra Pradesh are not the first, and certainly will not be the last attempts by political parties or legislators to overcome the Tenth Schedule. These have happened exactly because of the reasons pointed out by the minority judgment in the Kihoto Hollohan case—an overbroad law which requires a partisan speaker to act in a non-partisan manner.

Though transplanted from foreign shores, the Westminster form of parliamentary democracy has taken root here but developed some rather bizarre and dangerous mutations, such as routine defection. Further, with the increasing likelihood of those with criminal charges against them getting elected and the decisive role of money power in an election (Vaishnav 2017), this suggests a democracy in poor health.

But, is the fix the right one? Does the Tenth Schedule, in its present form, strike the right balance between the freedoms of the legislator and the need for respecting democratic mandates and processes? It is perhaps time to take heed of Justice Verma’s dissent in the Kihoto Hollohan case and reconsider the anti-defection law. Perhaps, one of the reasons why there is so little debate in Parliament over important legislation (Gandhi 2016) could be because there is little or no incentive to do so when the voting takes place along entirely expected lines. It might make sense, therefore, to restrict the anti-defection law only to votes on the budget and confidence/no-confidence motions.4 It follows, therefore, that votes which do not follow the party whip in such instances should be automatically deemed invalid, and the member disqualified by operation of law. The disqualification should also be as a matter of course and not involve any discretion or decision-making on the part of the speaker. While the Supreme Court has placed much faith in the neutrality and sanctity of the office of the speaker, the reality is that the office is anything but, a fact recognised ironically by the Supreme Court itself while holding that the decisions of the speaker nonetheless will be subject to judicial review, and invalidating such decisions in no fewer than 11 cases.

These changes are necessary since what has taken place in Telangana and Andhra Pradesh is probably being watched with interest by political parties around the country. Given that most ideas concerning governance in India, good or bad, have travelled from the states to the centre, the day may not be far when the central government is formed through an illegitimate majority gained only by flagrant violation of the Tenth Schedule.

Notes

1 The Supreme Court alone has delivered no fewer than 20 judgments interpreting some aspect of the Tenth Schedule, the earliest being the Kihoto Hollohan case and the latest in Nabam Rebia & Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016).

2 See,“Statement of Objects and Reasons” to the Constitution (Ninety-first Amendment) Act, 2003 (http://indiacode.nic.in/coiweb/amend/amend91.pdf).

3 See, for instance, Balchandra Jharkiholi v B S Yeddyurappa (2011), where the Supreme Court set aside the decision of the speaker of the Karnataka State Legislative Assembly disqualifying 13 members of legislative assemblies.

4 This suggestion was made in a private member’s bill to this effect by then member of parliament, Manish Tewari, but the same lapsed. See Manish Tewari (2016).

References

Balchandra Jharkiholi v BS Yeddyurappa (2011): SCC, SC, 7, p 1.

Business Standard (2016): “Hyderabad High Court Issues Notices to 20 YSRCP Members,” 14 November, viewed on 10 June 2017, http://www.business-standard.com/article/politics/hyderabad-high-court-i....

Gandhi, Jatin (2016): “Parliament Spending Less Time Debating Laws Than Ever. Here’s Proof,” Hindustan Times, 29 August, viewed on 10 June 2017, http://www.hindustantimes.com/india-news/parliament-spending-less-time-debating-laws-than-ever/story-S91dFmwUsDJWpMzBEm7PuN.html.

Kihoto Hollohan v Zachilhu (1992): SCC Supp, SC, 2, p 651.

Nabam Rebia & Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016): SCC, SC, 8, p 1.

S A Sampath Kumar v Kale Yadaiah (2016): Special Leave Petition (Civil), SC, 33677/2015, order by the Supreme Court dated 8 November 2016, viewed on 10 June 2017, http://supremecourt.gov.in/jonew/courtnic/rop/2015/40016/847711.pdf.

Somashekar, M (2017): “Ruling Parties Use Defections to Consolidate Position in AP, Telangana,” Business Line, 11 April, viewed on 10 June 2017, http://www.thehindubusinessline.com/news/national/ruling-parties-use-defections-to-consolidate-position-in-ap-telangana/article9631218.ece.

Tewari, Manish (2016): “Liberate the Legislator,” Hindu, 30 April, viewed on 10 June 2017, http://www.thehindu.com/opinion/lead/lead-article-by-congress-leader-manish-tewari-on-liberate-the-legislator/article8537888.ece.

Vaishnav, Milan (2017): When Crime Pays: Money and Muscle in Indian Politics, Delhi: HarperCollins.

Updated On : 16th Jun, 2017

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