How glaring loopholes render anti-defection law toothless in Indian politics

The Bombay High Court had on February 14 refused to grant anticipatory bail to Navlakha and Teltumbde, saying "prima facie evidence shows complicity of both the accused in the case".

The Telugu Desam Party (TDP), which had lured three MPs from the YSRCP in 2014-19 has now lost four of its Rajya Sabha MPs – all businessmen – to the BJP now. The development will change the colour of politics in Andhra Pradesh.

Some BJP leaders have openly stated that several of TDP’s 23 MLAs were in ‘touch’ with them and soon there would be an exodus from the party. If the prediction comes true, the BJP will play the role of opposition to Jagan Mohan Reddy’s government.

Such a trend in defections isn’t new. Wooing or accepting elected representatives from other parties has come to become one of the prime strategies of ruling parties today. Even though the anti-defection law mandates that two-thirds of the strength of a party should agree to a merger, some parties have found ways to circumvent the law.

Litmus test for Naidu

Every party has a parliamentary party consisting of MPs from both the Lok Sabha and the Rajya Sabha. The party elects leaders in each House. The TDP’s parliamentary party consists of nine MPs (six from Rajya Sabha and three from Lok Sabha). But when four of the nine are defecting to the BJP, they should attract disqualification as the number is far below than the ‘two-thirds’ to be considered as ‘merger’ under provisions of Tenth Schedule. It is also not known whether TDP president Chandrababu Naidu or its two Rajya Sabha MPs have filed a disqualification petition before the Vice President and chairman of Rajya Sabha Venkaiah Naidu. Answers to whether Naidu will suo motu recognize this as defection and proceed with a judicious hearing are still awaited.

It is going to be a litmus test for party supremo Chandrababu Naidu. In the media and social media, the defection is being speculated as Naidu’s ploy to prevent cases from being registered against him by the CBI and Enforcement Directorate, and even that the MPs, his close lieutenants have been sent to the BJP’s camp by Naidu himself to be kept safe under the umbrella of the BJP that rules at the centre. If Naidu chooses not to file a disqualification petition, these allegations might gain strength.

The TDP which ruled Andhra Pradesh from 2014 to 2019 lured 23 MLAs and three MPs from the YSR Congress Party. Interestingly, TDP got reduced to 23 in the Assembly and three in the Lok Sabha after the recent polls. Even though the BJP claims to be in talks with the MLAs, YSRCP chief and Andhra Chief Minister Jaganmohan Reddy said he would accept the defectors from TDP, only if they resign from the membership of the Assembly.

Is Telangana merger legitimate?

In Telangana, the legislature parties of the Congress in the Assembly and the Council ‘merged’ separately with the Telangana Rashtra Samithi (TRS) this year. If the Congress Legislature Party (CLP) is considered a single group, each merger could have been considered as invalid and attracted disqualification. Another question that is important to address is whether, all 12 of 18 MLAs joined the TRS at the same time.

The defection of only one or two members of a party to another would attract disqualification for the respective candidates under the anti-defection law. Thus, under the law, it should have taken 12 defections from a legislative party (of Congress in this case) of 19 members, to call it a legitimate merger. But all the 12 Congress MLAs didn’t defect all at a time – a breach of the anti-defection law which should have been taken note of by the speaker.

Earlier, only eleven members had expressed their intention to join the TRS. The CLP leader filed two petitions on April 22 to disqualify these colleagues. The strength reduced to 18 after Uttam Kumar Reddy resigned from his membership as he was elected to the Lok Sabha. The numbers of defecting MLAs rose from 11 to 12 when P Rohit Reddy joined the bandwagon. Till then it was not merger, but defection of eleven legislators.

After the 12th member expressed his desire to defect, the MLAs met TRS working president KT Rama Rao at Pragati Bhavan, to seek his consent for the merger. Later, they went to the residence of the Speaker and submitted a memorandum. The Speaker was quick enough to accept the same.

The question still remains why Speaker Pocharam Srinivas Reddy didn’t act on the CLP leader’s petition on the defection of the 11 MLAs, before the 12 member joined.

Speaker’s inaction

What happens if the Speaker does not decide on the disqualification petitions? There is no mention about such issues in the Tenth Schedule. This appears to be a deliberate defect in the law left to facilitate such manipulations and strategies to indirectly encourage defections. Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for the decision. There have been several cases where the courts have expressed concern about the unnecessary delay in taking decisions on such petitions.

In some states, such delays help members to continue unquestioned in their posts till the end. In Telangana and Andhra Pradesh opposition members have been appointed ministers while retaining the membership of their original parties in the legislature.  For instance, Talasani Srinivas Yadav was a TDP minister, until he along with other TDP members defected to TRS in 2016. TDP leader Erraballi Dayakar Rao filed a disqualification petition against Talasani. It was kept pending by speaker.  In 2016, Rao gave a list of members to be merged, including Talasani, who accepted ministerial berth much earlier. In the 2018 Assembly elections both Rao and Talasani contested on TRS tickets and became ministers.

During 2014-18, the ruling TRS attracted several TDP legislators to its fold. The party justified the defections saying that the TDP was planning to dislodge the government by pulling out some MLAs and was trying to purchase MLA votes to get MLCs elected. The Telangana police registered case against Revanth Reddy, working president of Telangana TDP, who was caught on camera bargaining with a nominated MLA to vote against TRS. The sting operation revealed that then Andhra Pradesh Chief Minister Chandrababu Naidu was behind the ‘conspiracy’. The Anti-Corruption Bureau (ACB) claimed to have trapped TDP MLA Revanth Reddy for allegedly trying to give a bribe of Rs 50 lakh to nominated MLA Elvis Stephenson “to vote in favour of a TDP nominee” in the Legislative Council elections.

YS Rajasekhar Reddy’s role

In combined Andhra Pradesh, YS Rajasekhar Reddy started splitting and merging the opposition parties into the government’s fold during 2004-09. The Congress took away 12 of TRS legislators in 2005, and the scene got reversed in 2019 with 12 of Congress’ legislators merging with the TRS. While speaker did not act on TRS’s petitions praying for the disqualifications of defecting MLAs, he was quick enough to disqualify other TRS members, as that was not beneficial to the Congress. Disqualification petitions were filed by TRS leaders when three of their legislators voted for Kasani Gnaneswar, as independent to Legislative Council.  On a challenge, the Andhra Pradesh High Court has validated the disqualifications in Mannadi Satyanarayana Reddy and Anr vs Andhra Pradesh Legislative Assembly on April 8, 2009.

The Chairman of Telangana Legislative Council K Swamy Goud in January 2019 disqualified three MLCs of the ruling TRS Party- K Yadava Reddy, R Bhoopathi Reddy and S Ramulu Naik. Council Chairman was fast enough to act within a few days.

(The writer is a former central information commissioner and professor of constitutional law at Bennett University)

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