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Defecting from the Law
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.
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