Revision as of 15:43, 13 January 2021

The anti-defection law

July 13, 2019: The Times of India

Karnataka political crisis: All about the anti-defection law

How anti-defection law came into force

• ‘Aaya Ram Gaya Ram’ was a phrase coined in 1967 after Haryana MLA, Gaya Lal, changed parties thrice in the same day.
• The anti-defection law sought to prevent such political defections which may be due to reward of office or similar consideration.

• The 10th Schedule was inserted in the Constitution in 1985 laying down the process by which legislators may be disqualified.

• A legislator is deemed to have defected if he either voluntarily gives up membership of his party or disobeys the directives of the party leadership on a vote.

When can a MLA be disqualified?

• If the member voluntarily gives up membership of the party on whose ticket s/he is elected.

• If the member votes or abstains from voting in the House contrary to any direction of his/her party.

• Disqualification may be avoided if the party leadership condones the vote or abstention within 15 days.

What happens if an MLA is disqualified?

• If a member of the current House (15th legislative assembly) is disqualified, it means s/he cannot contest any election to the 15th House. However, s/he can contest the next assembly election (to the 16th House). Also, Article 164 (1B) of the Constitution states a member who has been disqualified cannot be made a minister till the expiry of his or her term, or till s/he is re-elected.

• If an MLA is disqualified on conviction for certain offences, he will be disqualified for a period of six years under Section 8 of the Representation of People’s (RP) Act. But Section 8 (4) of the RP Act gives protection to MPs and MLAs as they can continue in office even after conviction if an appeal is filed within three months.

Time limit

The law does not specify a time-period for the presiding officer to decide on a disqualification plea.

Resignation vs disqualification

• If an MLA is disqualified, then s/he cannot be a minister in the new dispensation without being re-elected.

• However, if an MLA resigns s/he can be inducted as a minister and get elected to either House of the legislature within six months.

SC, 2019: discretion of Speaker should not be fettered

Dhananjay Mahapatra & Amit Anand Choudhary, July 18, 2019: The Times of India

Though the SC will decide later the key question of if rebel Karnataka MLAs have submitted their resignations prior to initiation of disqualification proceedings, it feels an interim order is urgently needed given the involvement of competing rights of parties in the litigation. “In these circumstances, the competing claims have to be balanced by an appropriate interim order, which according to us, should be to permit the speaker of the House to decide on the request for resignations by the 15 members of the House within such timeframe as the speaker may consider appropriate,”the SC said.

“We also take the view that in the present case, the discretion of the Speaker while deciding the above issue should not be fettered by any direction or observation of this court and the Speaker should be left free to decide the issue in accordance with Article 190 (of the Constitution)... The order of the speaker on the resignation issue, as and when passed, be placed before the court.”

The bench clarified, “Until further orders, the 15 members of the assembly ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or opt to remain out of the same.” The order puts the ruling coalition in a quandary as it dispels the coercive element in the disqualification proceedings initiated by the speaker which could have annulled the effect of resignation of the 15 MLAs that reduces the ruling side to a minority.

Court judgements

1967-2014

Dhananjay Mahapatra, July 22, 2019: The Times of India

The seeds of legislators being allured to switch loyalties were sown in Indian politics in 1967. In half a century, the phenomenon has come to suffocate politics. It reminds one of what 19th century French diplomat, political scientist and historian Alexis de Tocqueville had prophesied for America: “There are many men of principle in both parties in America, but there is no party of principle.”

Till the 1960s and before its split, Congress was the rotund pillar of multi-party politics, inheriting the people’s goodwill for its contribution to the freedom struggle. In 1967, as many as 16 states went to polls. Congress could not cross the majority mark in eight and began a culture of throwing baits for migratory legislators to defect.

During 1967-71, there were 142 defections in Parliament and 1,969 cases of shifting of loyalty by MLAs in assemblies. As many as 32 governments collapsed because of defections and 212 defectors were rewarded with ministerial positions (source: PRS Legislative Research).

Defections felled the first government in Haryana headed by Bhagwat Dayal Sharma. Congress defector Rao Birender Singh became chief minister in a coalition government formed by rebel Congress MLAs with the help of opposition parties. MLA Gaya Lal took ‘swinging loyalty’ to new heights by defecting thrice in a fortnight and political analyst coined the phrase ‘Aya Ram, Gaya Ram’. Half a century later, the nomenclature has changed to ‘horse-trading’.

Defections have always given a handle to governors to poorly camouflage their whimsical decisions as constitutional duties to topple governments. Such actions of governors have been the basis of many memorable Supreme Court judgments — Kihoto Hollohan [1992 Supp (2) SCC 651], S R Bommai [1994 (3) SCC 1] and Rameshwar Prasad [2006 (2) SCC 1].

Though the SC always faulted governors’ actions in lending unconstitutional help in toppling of governments, it steadfastly refused to enter the ‘political thicket’ to determine what constituted ‘horse-trading’ or defections due to allurement. And, this probably emboldened ‘political pendulum’ MLAs to continue with impunity what their predecessors had done in the past.

In the Bommai case, the SC had said, “There cannot be any presumption of allurement or horse-trading only for the reason that some MLAs expressed the view which was opposed to the public posture of their leader and decided to support formation of government by the leader of another political party. Minority governments are not unknown. It is also not unknown that the governor, in a given circumstance, may not accept the claim to form the government, if satisfied that the party or the group staking claim would not be able to provide to the state a stable government. It is also not unknown that despite various differences of perception, the party, group or MLAs may still not opt to take a step which may lead to fall of the government for various reasons including their being not prepared to face the elections. These and many other imponderables can result in MLAs belonging to even different political parties to come together. It does not necessarily lead to assumption of allurement and horse-trading.”

As the SC did not, and could not, lay down what constitutes horse-trading, some leaders of political parties continued to do what they were best at — identify MLAs in rival political parties and lure them with money or ministerial berths. Should defectors and those with criminal antecedents deserve a berth in the council of ministers? The SC in Manoj Narula judgment [2014 (9) SCC 1] had said, “Democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints.

“It can always be legitimately expected, regard being had to the role of a minister in the council of ministers and keeping in view the sanctity of oath he takes, the prime minister (or chief minister), while living up to the trust reposed in him, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a minister of the council of ministers. This is what the Constitution suggests and that is the constitutional expectation from the prime minister. Rest has to be left to the wisdom of the prime minister.”

MLAs who accept bribes to switch loyalty know that they, as public servants, are committing a crime under the Prevention of Corruption Act. Leaders who offer bribes to MLAs are also aware of their crime under the PC Act. And yet, leaders do not flinch in offering ministerial posts to defectors.

The fourth president of the US, James Madison, had once said, “If men were angels, no government would be necessary. If angels were to gover n men, neither exter nal nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

India’s first president Rajendra Prasad had agreed with B R Ambedkar to say this on November 26, 1949, “Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it.”

The Karnataka political imbroglio, caused by ever familiar defections, offers an opportunity to the SC to think of auxiliary remedial measures, in addition to the antidefection law in the Tenth Schedule of Constitution, to maintain polity’s purity.

See also

The Constitution of India (issues)

Ten laws that shaped the Indian republic

Rajya Sabha