Expert Speak India Matters
Published on Aug 09, 2019
Anti-defection law, more in breach than practice?

If there is anything that ‘la affaire Karnataka’ has exposed in recent times, it is the inability of the much-touted anti-defection law to stem the rot, it was set to stall and hopefully reverse at inception. Leaving apart the way the ruling BJP at the Centre stage-managed rebellion in the untenable alliance between the ruling JD(U) and Congress , the fact that Speaker, KR Ramesh Kumar chose to ‘disqualify’, rather than accept the resignations of 14 (more) ruling alliance ‘rebels’ after the parties that had elected him to the post, had lost their legislative majority, has a separate tale to tell.

The Karnataka Government would be among the early targets of the BJP to encourage defection and rebellion was to be suspected the minute Modi 2.0 leadership swept the Lok Sabha polls earlier in the year. The party managed a near-wholesale defection of most Congress MLAs in the neighbouring state, Goa, was not even a trial run, but a well achieved one. Yet, in the midst of the busy Budget session of the Parliament – neither any questions were asked nor any challenges thrown at.

The Speaker’s decision to disqualify Karnataka ‘rebels’ did help the successor-Government of BJP’s third-term chief minister BS Yediyurappa is beside the point. After Tamil Nadu’s AIADMK counterpart Edappadi K Palaniswami, Yediyurappa now heads a government with a wafer-thin majority in a House with fewer members than the total. EPS, as the TN chief minister is known, managed an absolute majority, though it is still not a huge margin after the party won (only) nine of the 22 seats for which assembly by-elections were held along with the LS polls.

In real terms, the Yediyurappa Government’s majority will be tested not in the House as it has already happened, but on the streets of Karnataka, if and when the Election Commission (EC) holds by-elections to the seats vacated by ‘rebels’, either through disqualification or resignation. In between, Karnataka may witness a royal court battle than already over the defections, as some of the ‘rebels’ have declared their intention to move the Supreme Court against the Speaker’s decision, announced before the latter himself resigned from the post. Otherwise, the new dispensation would have removed him through a vote of no-confidence, now that they have proved their majority in the truncated House.

Speaker has ‘powers’, but..

Other than making out a legal case against the timing of Speaker Ramesh Kumar’s decision, the ‘rebels’ may not have a political case, unless the Supreme Court in its wisdom, annuls his order and restores their membership. The logic in that case could be that the Speaker having lost his moral, if not constitutional authority to decide on the rebels’ resignations and the ‘disqualification’ petitions from the parent-party. Any court-ordered annulment of his decision could imply that he had not taken any decision.

It would then that their resignations too had become in-fructuous and they would continue to remain members, needless to say that it would restore the higher membership of the House. More importantly, such a course would also bolster the morale and majority of the Yediyurappa Government. This is because, given the possible mood of the voter in terms of the methods adopted by the BJP in ‘encouraging’ rebellion in the ruling alliance  which anyway may have been matured for one  wholesale by-elections to all the ‘rebel seats’ could still go either way.

The question regarding the timing of the Speaker’s decision arises because the Supreme Court had earlier ruled that he was well within his rights to decide on the rebels’ resignations. The Karnataka case is which at present  is pending before the SC, may now take up the rebels’ fresh petitions, if moved. Otherwise, it may end up having to close the case, as infructuous.

Unless the SC has an occasion to ‘reopen’ the current Karnataka case and rule ‘adversely’ against outgoing Speaker Ramesh Kumar’s decision, the rebels’ seats would have to face by-elections within six months under the Constitution. In the normal course, there may not be any exception for the EC delaying the by-elections, either.

However, it may be for the Karnataka Assembly Secretariat to declare the vacancy. Under a new Speaker, they may wait for a Supreme Court verdict, if moved. In a similar situation in Tamil Nadu, the Assembly Secretariat took it’s time notifying the vacancy for chief minister Jayalalithaa’s Srirangam seat after a trial court in Karnataka had handed down a four-year prison term, a valid reason for declaring a ‘vacancy’.

Letter, not spirit

Credit should go to Rajiv Gandhi as Prime Minister for coming up with the anti-defection law. It beats imagination why Rajiv Gandhi, who was still at the peak of his popularity following the Congress Party’s sweeping Lok Sabha poll performance in the aftermath of the ‘Indira Gandhi assassination’ and long before Bofors controversy and VP Singh’s rebellion, should think of such a law, but he did. Obviously, he was keen to undo the image-damage done to his party and family under his mother, Prime Minister Indira Gandhi and the ‘Ayya Ram, Gaya Ram’ slogan identified with his leadership.

Ironically, outgoing Karantaka Speaker Ramesh Kumar has since said that the ‘anti-defection law has failed to achieve intended goals’. It was in another case pertaining to Karnataka (S R Bommai vs Union of India, 1994) that the Supreme Court declared the Legislature (Lok Sabha or the State Assembly) alone was the appropriate venue for testing the majority of a Government. It is another matter that all other anomalies have remained and expanded since the first major Supreme Court verdict in the matter of anti-defection law

At the time, the idea was to limit the (suspect) role of Governors in aiding, if not abetting, defections. A full quarter century later, the letter of that law (alone) prevails, as Governors and  President are careful to direct new chief-ministers  and Prime-Ministers to prove their majority on the floor of the respective Houses.

In recent years, gubernatorial decisions in this regard have become routine. In some cases, chief ministers who have an absolute majority at the end of elections are also asked to prove their majority on the floor of the House. At the same time, some Governors, including Karnataka’s Vajubhai Vala and Goa’s Mridula Sinha, are criticised for looking the other way when the ruling party at the Centre is seen as encouraging defections.   In some such cases, Governors say that they cannot innovate ‘healthy precedents’ in circumstances not foreseen in the ‘Bommai verdict’.

Independent of whoever was/is in power, both the anti-defection law and the ‘Bommai case’ verdict have been upheld mostly in breach. Suffice is to point out that Rajiv Gandhi’s Congress Party, when in power   caused Bihar Governor Buta Singh to help topple the popularly-elected state government of chief minister Nitish Kumar, not once but twice. In both the cases, the Supreme Court intervened to re-set constitutional fairness and political propriety (‘Rameshwar Prasad & Others vs Union of India, 2006).

It is interesting to note that none of the Governments during or after the time of ‘Bommai case’ verdict has bothered to challenge or alter the situation, either through a ‘Review Petition’  or through a constitutional amendment. Ironically, they have also not bothered to amend the Constitution, to strengthen the anti-defection law in any appreciable and meaningful way, other than the one done when BJP’s Atal Behari Vajpayee was Prime Minister.

Accordingly, the 91st Amendment (2003) to the Constitution, inter alia, ‘corrected’ a past mistake and said that two-third majority of a legislative group has to ‘defect’ if they had to escape ‘disqualification’ under the law. In the recent Goa episode, 10 of the total 15 Congress MLAs had quit the party first, and  joined the ruling BJP later, thus ‘escaping’ disqualification.

Thus, from the original ‘Manipur Speaker case’ (1986) to the more recent ones in the State and also last year’s post-poll ‘Karnataka case’  first with a split verdict in the High Court, and later in the Supreme Court, the anti-defection law has seen them all,  from one defection to another the nation has seen increasing ingenuity on the part of the ruling party at the Centre, individual legislators and also the Speaker (who is still a ‘political animal’, possibly denied the CM’s job), to rob the application of the law, the intended spirit, leaving only the skeletal form to comment upon.

With Parliament otherwise looking the other way, through and through, it may be time for the Supreme Court of India to intervene, and revisit the original provisions of the anti-defection law (including relevant constitutional amendments) to make them tighter or advise the Legislature to scrap it or improve it wholesale. This farce has to end, and the Karnataka rebels’ case, if it were to reach the Supreme Court, as promised, may be one occasion, in this regard.

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N. Sathiya Moorthy

N. Sathiya Moorthy

N. Sathiya Moorthy is a policy analyst and commentator based in Chennai.

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