Anti-defection law: Time to revisit or repeal – MP, Rajasthan political crises expose its limitations

July 23, 2020 5:45 AM

Every political party is empowered under its party constitution to enforce discipline to preserve, protect and uphold, at least, a semblance of its ideological moorings and identity.

The question right now is whether Sachin Pilot and 19 of his loyalist Congress MLAs have incurred disqualification. The question right now is whether Sachin Pilot and 19 of his loyalist Congress MLAs have incurred disqualification. (File image)

By Devender Singh Aswal

The high drama in Rajasthan, and earlier, in Madhya Pradesh, has yet again exposed the gross inadequacy of the anti-defection law. The precise grounds for disqualification of a legislator under the Tenth Schedule of the Constitution are: (a) if she has voluntarily given up her membership of such political party, or, (b) if she votes or abstains from voting in the House, contrary to the direction or the whip, issued by the political party of which she is a member. However, in case of merger of not less than two-thirds of the members of the legislature party with another party, the defection law will not apply. The competent authority to decide the question of disqualification is the Chairman/Speaker of the House, which, after the judgement of the Supreme Court in Kihoto Hollohon vs Zachilhu and others in 1992, can be a subject of judicial review.

The question right now is whether Sachin Pilot and 19 of his loyalist Congress MLAs have incurred disqualification. On a petition of the Congress legislature party, the Speaker of the Rajasthan Vidhan Sabha issued show-cause notices to Pilot and his loyalist legislators to explain as to why they should not be disqualified under the Tenth Schedule. The show-cause notices have been challenged in the Rajasthan High Court, and the judgement will likely be out later today.

Every political party is empowered under its party constitution to enforce discipline to preserve, protect and uphold, at least, a semblance of its ideological moorings and identity. Pilot and his loyalist MLAs have neither defected nor voted/abstained from voting in a manner that can be construed as being against the party whip in the Vidhan Sabha. Mere probability of defection cannot be a legally sustainable ground for disqualification; a political party can expel such members from the legislature party, though. The Speaker is not the arbiter for mediating in the internal disciplinary matters of political parties. His jurisdiction is well defined and limited by the Tenth Schedule.

Interestingly, in Madhya Pradesh, 22 MLAs of the Jyotiraditya Scindia faction of the Congress party resigned from the Vidhan Sabha, causing the fall of the Kamal Nath government and the coronation of Shivraj Singh Chauhan of the BJP. Mocking the defection law and its intent, 14 former MLAs out of the 22 Scindia loyalists who had resigned were inducted in the council of ministers by Chauhan. Out of total 34 ministers including the CM, 14 are Scindia loyalists, creating acrimony within the BJP hopefuls. Art.164 (4) provides that ‘a minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister’. The Constitution provides an enabling mechanism. Albeit, there have been instances in the past, especially at the Union level when non-members were made ministers and later elected to the Lok Sabha or the Rajya Sabha, but not on such a scale. Narasimha Rao was not an MP when he was sworn in as PM. He later contested from Nandyal, Andhra Pradesh, and got elected to the Lok Sabha. So was the case of Deve Gowda who was not an MP when he was sworn in as PM in 1996. He was later elected to the Rajya Sabha. In February 1995, Pranab Mukherjee, not an MP then, was sworn in as Minister and he briefly held the external affairs portfolio, but could not be elected to Parliament within the stipulated period of six months due to a tussle with the Election Commission of India.

Mukherjee had to resign. S Jaishankar, a career diplomat, was inducted into the Modi Cabinet and later elected to the Rajya Sabha. Similar is the example of Uddhav Thackeray who was sworn in as CM of Maharashtra and later elected as MLC. But in MP, this enabling mechanism became a conduit for political rift and split, and the fall of an elected government. Obviously, no disqualification was incurred so to speak, on the ground of defection as there was no floor crossing as the said MLAs resigned en bloc. But the question is much larger, as it involves the spirit of the defection law.

The Constitution was amended to curb the evil of defection, considering it a serious threat undermining the very foundations of democracy and the principles that sustain it. Given the manner in which the intent of the law is being ingeniously thwarted, a review of the anti-defection law is called for, to possibly even include debarring of such representatives from contesting election for five years. If that is not done, then let the Tenth Schedule be dismantled to make India free of the anti-defection law.

The author is Former additional secretary, Lok Sabha

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