On 15th February, 1985, the Indian Parliament passed the 52nd Constitutional
Amendment Act, thereby inserting the 10th Schedule. But what they never anticipated were the decades of debate and qualms. The aforementioned Schedule, popularly known as the Anti Defection Law (ADL), aimed to bring about a sense of stability and succor to the democratiic structure of the country. Having said that, the result did not correspond with the intended purpose.
To understand the purpose of the Act, a little insight into the very reason why it was
initiated must be provided. In 1967, a Haryana MLA, Mr. Gaya Lal, switched his
allegiance with political parties thrice in quick succession. A fellow MLA from the
Congress party replied to a question posed by the press regarding Mr. Gaya Lal’s
current allegiance, saying, “Gaya Ram is now Aaya Ram”. The catchy phrase caught
the public ear, and the rampant political turncoat trend came to be known as “Aaya
Ram Gaya Ram”. The infamous incident provided an opportunity to the citizens and
the media to criticize the incumbent politicians for indulging in corruption and
violating the trust of the voters. A reform seemed inevitable at this stage, and led to
the introduction of the 52nd Amendment in 1985.
To throw light on the exact provisions of the law, a simple example can be given.
If a person A, belonging to party XYZ is elected to a legislative house in the country,
either the Parliament or a State Assembly/Council, and he then voluntarily resigns
from party XYZ and switches over to party PQR, he can be disqualified under the
ADL. Any Indian voter, even a member of the concerned House, can file a complaint
against person A to the presiding officer of that House (usually the Speaker), who
will then have the power to disqualify person A. This decision of the Speaker is
subject to judicial review, i.e., the Supreme Court has the power to examine the
judgement of the Speaker, and if the said judgement is found to be unconstitutional,
the SC can overturn it.
Initially, the ADL seemed to solve the problems looming over the democratic tenet.
Members of the legislature, whether state or central, were unable to voluntarily
resign from their parent party and shift to another party without facing the threat of
disqualification. The political pillars, for the time being, were saved from collapsing.
Alas, like all good things, the steady flourishing period did not last long, with
politicians discovering the glaring loopholes in the ADL.
The law states explicitly that if an elected member is believed to have defected, the
presiding officer of the House must make the decision of disqualification. What the
lawmakers failed to take into account was the possibility of the presiding officer
behaving in a partisan manner to his/her own political party.
Members of the Arunachal Pradesh Legislative Assembly in 2016 paid a heavy price for this
overlook of the promulgators, wherein the Speaker acted hurriedly, patently favoring
his own political party, led by his cousin.
If this were not enough, the law does not stipulate a time frame within which the presiding officer of the House must act on the complaints of disqualification under the 10th Schedule.
In Telangana, Mr. T. Srinivas Yadav won a seat in the Assembly on a TDP ticket. However, finding himself in the Opposition, he resigned from his
party and joined the ruling party, namely, the TRS. The Speaker failed to act on this.
Additionally, Mr. Yadav was given a ministerial post in the TRS, violating another
law, the 91st Constitutional Amendment Act, which debars defectors from holding
any Remunerative Political Post unless he/she has been re-elected to the concerned
House.
The failure to adhere to the law by not only the Speaker, but also the Chief
Minister of Telangana, who recommended Mr. Yadav for the post, and the governor,
who administered the oath to Mr. Yadav, is astounding. When an RTI was filed
regarding this series of bewildering incidents, the Honorable Speaker responded
incredulously, that Mr. Yadav was a member of the TDP, indicating that the ADL
does not apply to him. The case was rightfully taken to Court, where it has been
pending for five years.
Yet another incident has come to light recently. In 2017, the Manipur state elections
revealed a hung verdict, following which, the BJP formed a coalition with 3 regional
parties and led the government. One Congress MLA, Mr. T. Shyamkumar, then
defected to the BJP. The Speaker contentedly sat on the complaint to disqualify the
concerned defected member. Later, 7 more Congress MLAs defected to the BJP.
This appeared to be no different than the first, and the Speaker felt no urgency to act
on the disqualifications. The Supreme Court finally entered the picture in March
2020, and 3 years after the elections, disqualified the first defector, Mr. Shyamkumar. Later, in June, 2020, the Manipur High Court ordered the Speaker to take action on the years-long pending disqualifications of the other 7 members, and
debarred them from entering the Assembly.
The High Court added one more directive, wherein the Speaker must act on the matter of the disqualifications only after the Rajya Sabha elections. Meanwhile, a few more people from the BJP camp defected to the Congress. To add to the theatrics, 4 of the earlier 7 defectors who had
been banned from entering the Assembly, decided to return back to the Congress.
Finding the situation not in his parent party’s favour, the Speaker overruled the High
Court directive, and just in time for the Rajya Sabha election, disposed of the case
of the 3 defectors who remained in the BJP. Not only has the Speaker evidently
violated the court’s decision, but has also acted partially by only disposing of the
cases of the MLAs in the BJP, and not the other 4 who returned to the Congress.
This disdainful yet sudden turn of events brings to light the urgent need for swift
directives by the Supreme Court and consequently, immediate action by the
Parliament, something which is long overdue. The Supreme Court has already
announced that it is rendered by and large helpless by the Act at the pre-decisional
stage, i.e. it cannot make any judgements unless it is by power of judicial review.
In simple words, if the Speaker simply fails to act on the complaints he/she has
received, the SC cannot do anything, which is what happened in the cases of
Karnataka and Manipur among others. More power must be given in the hands of
the apex of the Indian judiciary. Secondly, the Presiding Officer must be given a
definite and reasonable time limit within which he/she must act on the complaints.
The SC has previously suggested a time frame of 3 months.
A person who had incurred disqualification for defection does not deserve to be an MP or an MLA even for a single day, SC Justice Nariman observed. Of equal importance the Parliament
must discuss whether the Presiding Officer is an appropriate choice to be given this
power. As in the case of Arunachal Pradesh, the Speaker might be acting in a partisan
manner, thus undermining the sanctity of his role. An autonomous body, such as the
Election Commission, could be considered to be authorised to disqualify members.
The SC, in a judgement in January, 2020, suggested a permanent tribunal headed by a retired Supreme Court judge or a former High Court Chief Justice.
One can only pray that the Parliament understands the urgency of the issue, and does
not allow the country to retrogress to the 1960s era of instability and corruption,
when voters and political parties alike were betrayed callously.
By: Shimon Chadha
Reference: Byju, Psrindia, The Hindu, Google