Defects in Tenth Schedule: Perpetuating Constitutional Sin of Defections

Prof. Madabhushi Sridhar Acharyulu

26 Jun 2019 12:54 PM GMT

  • Defects in Tenth Schedule: Perpetuating Constitutional Sin of Defections

    In Harish Chandra Rawat case, the Supreme Court said defection is a constitutional sin. This is the story of sinful defections in the mask of mergers. Most unholy political treacheries are becoming constitutionally accepted activities. The mergers are nothing but wholesale defections, forming base of strategies of ruling parties. The fabric of politics is made of tearing a piece from...

    In Harish Chandra Rawat case, the Supreme Court said defection is a constitutional sin. This is the story of sinful defections in the mask of mergers. Most unholy political treacheries are becoming constitutionally accepted activities. The mergers are nothing but wholesale defections, forming base of strategies of ruling parties. The fabric of politics is made of tearing a piece from a cloth-roll and stitching it with another, called merger, though design, colour or texture does not match.

    In fact, Rajya Sabha is for elders, socially mature statesman whose guidance is required for governance according to the Constitution. Four MPs of Telugu Desham Party tore themselves out from Chandra Babu Naidu's yellow cloth-mill and stitched it with saffron clothing of BJP. Even before the remaining TDP MPs petition foraction against defectors reached, the Chairman of Rajya Sabha Venkaiah Naidu approved the merger with jet speed.

    Defections among Lok Sabha members is quite frequent and high in number. Floor crossing among members of Rajya Sabha was less, until businessmen entered the scene. But TDP MPs had shameful history of backstabbing the leaders NTR and Naidu. Ranging from founding secretary of Telugu Desham Parvataneni Upendra, Vice Roy Hotel Proprietor Prabhakar Reddy, Renuka Chowdhary, Jayaprada, Mohan Babu, Vijaya Mohan Reddy, Rumandla Ramachandraiah, Tulasi Reddy, C Ramachandraiah, Yarlagadda Lakshmiprasad were elected to Rajya Sabha by TDP but sooner or later, they shifted loyalties and most of them joined Congress party. In 1992 P V Narasimharao' minority government has split six MPs (Lok Sabha) under the leadership of Bhupathiraju Vijay Kumar Raju. Whenever TDP lost in elections, the MPs backstabbed TDP.

    Vijay Mallya as Elder

    When rich corporates like Vijay Mallya are elected to Rajya Sabha who turned wilful defaulters of bank loans, its privileged name suffered. Surprisingly, both BJP, JD(S) and Congress helped him to enter Rajya Sabha as 'independent' member. In 2002 Congress and JD(s) members voted him while in 2010, BJP and JD(S) pushed him to the second term. Interestingly, the then BJP President Venkaiah Naidu and Mallya were elected together to RajyaSabha. Such incidents raised suspicion that Mallya might have satisfactorily convinced them to vote him to enter elders house. BJP did not bother about its reputation when its leaders unhesitatingly blessed Gali brothers, who are facing criminal charges of over-exploitation of the mines.

    And Andhra Mallyas, as BJP described

    Telugu Desham MP Mr Y S Chowdary was a member of the Modi 1.0 team, when TDP walked out of the alliance, he was described as 'Andhra Mallya', and after miserable defeat of TDP, he became honourble member of BJP Parliamentary Party. He was elected to Rajya Sabha by Telugu Desham party and as its representative, joined the Modi Ministry. He resigned as Chandrababu Naidu started attacking Modi politically. In November 2018, the BJP official spokes-person GVL Narasimha Rao leading the attack from BJP against TDP's corruption, commented on twitter: "I've complained to Ethics Committee to seek disqualification of two TDP MPs, Y.S. Choudary & C.M.Ramesh, who have earned the dubious title of "Andhra Mallyas" with massive financial scandals…" Rao had posted that letter which was reproduced by media after the great 'merger'. Their cases were not probed if they were friendly. Before general elections in April-May 2019 these two Rajya Sabha members were vociferous in attacking Modi politics. After that, the past irregularities and illegalities in their financial transactions running to hundreds of crores of rupees were highlighted and searches were conducted. When Vijay Mallya fled after duping the banks and appropriating public money worth 7000 crores, Rajya Sabha suffered a loss of reputation.

    Now the BJP does not need any numbers in either of two Houses of Parliament. They need not depend on other parties or defectors. Even if these four MPs of TDP are not admitted into their party, they would have supported official Bills in Parliament. Surprisingly, BJP rolled red carpet to them and posed to media. The need for defection is an open secret for MPs, but it is not known why they were welcomed by ruling party.

    The unholy split and merger

    The split of a single unit of TDP Rajya Sabha members (4 out of 6) is contended to be a merger so that disqualification under Tenth Schedule is not attracted. MP C M Ramesh is facing IT probe. His name was also linked with Sana Sathish Babu, whose statement formed basis for corruption case against Asthana of CBI. They also alleged that Ramesh was influencing cases. There are three FIRs against Y S Chowdary, alleging that a company associated with him fraudulently obtained loans of over Rs 360 crore and did not pay back. The Media reported that ED attached over Rs 315 crore of his assets and recovered 126 Rubber Stamps of different shell companies from his premises in Hyderabad. The probe revealed allegations of Rs 5700 crore worth loan defaults by Sujana Group owned by Chowdary. Both MPs denied these allegations and claimed that it was political vendetta.

    The Congress party in-charge of communication Randeep Singh Surjewala criticised BJP saying "Defections are founded upon threats, coercion, money power, muscle power and enticements,… BJP "engineered defection among the Rajya Sabha MP's belonging to the TDP in an attempt to manufacture a majority in Rajya Sabha" in an "illegal and unconstitutional manner"…Modi 2.0 - Defections are New Normal. TDP Party in Lok Sabha hasn't split. TDP Legislature Party hasn't split. TDP Political Party hasn't split. Then, How can TDP in Rajya Sabha split? Constitution Xth Schedule is dead!. Surjewala also drew examples from West Bengal, Arunachal Pradesh, Uttarakhand, Manipur, Goa Karnataka, Gujarat, Jammu and Kashmir, Maharashtra and Telangana, where BJP allegedly engineered defection.

    With various kinds of chameleons crossing floors, the colour of politics in Telugu States is changing. The BJP leaders are openly stating that several of MLAs out of 23 elected were in 'touch' with BJP and soon there would be an exodus. If it is done, the BJP is all set to play a role of opposition to Jagan Mohan Reddy's Government. Attracting or accepting elected representatives from other parties has come to stay as one of the prime strategies of ruling parties.

    Constitutional issues

    Parliamentary Party means group of MPs from both the Houses - Lok Sabha and Rajya Sabha. Each party will elect leaders in two Houses. The TDP Parliamentary Party consists of nine MPs (6 from Rajya Sabha and 3 in Lok Sabha). When only four of nine of TDPP are defecting into 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. The Vice President has already recognized the 'merger'.

    The TDP which ruled from 2014 to 2019 lured or procured 23 MLAs and three MPs from YSR Congress Party. Interestingly TDP got reduced to 23 in Assembly and 3 in Lok Sabha. The BJP leaders are openly stating that most of the 23 legislators are in touch with them and will surely join their party. The new Chief Minister and President of YSR CP Jaganmohan Reddy said he would accept the defectors only if they resign the membership of assembly.

    Though the Constitution prohibits 'defections', politics of convenience, opportunism and deception facilitate them. The defection is no more a pre-election a phenomenon as politicians are adopting it as part of their strategies to remove or weaken opposition. They are finding strength by luring opposition members. With reference to the post-election scene in AP the BJP is facing serious criticism that after losing all contested seats in Assembly elections in Andhra Pradesh and also Telangana (except one) the BJP is totally depending on defections from other parties, which gained less seats.

    Defective mergers in Telangana

    In Telangana, the legislature parties of Congress in Assembly and Council 'merged' separately with TRS. If CLP is considered as single group, each merger could have been considered as invalid and attracted disqualification. Another question was, in the recent merger, whether all 12 out of 18 resolved at a time to join TRS? If one or two members went on expressing their intention to join TRS, why should they not attract disqualification? If strength of Congress Legislature Party (CLP) is 19, the defection of 13 members would amount to merger. But only eleven members were expressing their intention to join TRS. The CLP leader filed two petitions on 22nd April 2019 to disqualify these colleagues. The strength reduced to 18 after Uttam Kumar Reddy resigned membership as he was elected to Lok Sabha. The numbers of defecting MLAs rose from 11 to 12 when P Rohit Reddy joined the band-wagon. Till then it was not merger, but defection of eleven legislators. Why those two petitions were not decided by the Speaker Pocharam Srinivas Reddy? Why conduct of Haripriya Naik, Athram Sakku, Rega Kantha Rao, Sabita Indra Reddy, Kandala Upender Reddy, D. Sudheer Reddy, Chirumarti Lingaiah, Jajula Surender, B. Harshvardhan Reddy, Vanama Venkateshwara Rao and Gandra Venkataramana Reddy was not examined by the speaker?

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

    Speaker's inaction

    Presiding officers of Houses have a pious duty to protect the dignity of their office. But the unhidden political bias is casting a shadow on these constitutional offices. Especially the inaction or deliberate delay in hearing the complaint against the interests of Speaker's party, posing a challenge to its dignity. What happens if the Speaker does not decide the disqualification petitions? The anti-defection law has no provision to deal with bias and delay. Is it a deliberate conspiracy to create defects in the law to facilitate such defection-based manipulations and strategies? Given that courts can intervene only after the decision of the Presiding Officer on the matter, the petitioner seeking disqualification, victimised parties have no option but to wait for the decision. There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions. In some states, this delay facilitated defectors to continue as members till the end of term. In Telangana and Andhra Pradesh defected members have been appointed as ministers. The Minister Talasani Srinivas Yadav, in TRS government, was originally a TDP MLA in 2014, until all 12 members of TDP 'merged' with TRS in 2016. The then TDP leader Erraballi Dayakar Rao filed a disqualification petition against Talasani in 2014. It was kept pending without disposal. In 2016 Rao gave list of members to be merged, including Talasani, who defected and became Minister much earlier. In 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 AP Chief Minister (then) Chandra Babu 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 Legislative Council elections.

    YS Rajasekhar Reddy's role

    In combined Andhra Pradesh, the 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 scene got reversed in 2019 with 12 of Congress legislators merged with TRS. While speaker did not act on TRS petitions praying their disqualifications, he was quick enough to disqualify other TRS members, as that was not beneficial to Congress. Disqualification petition was filed by TRS leaders when three of their legislators voted for Kasani Gnaneswar, as independent to Legislative Council. On a challenge, the AP High Court has validated the disqualifications in Mannadi Satyanarayana Reddy and Anr v Andhra Pradesh Legislative Assembly on 8th April 2009 

    The Chairman of Telangana Legislative Council K Swamy Goud in January 2019 has 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.
    Why BJP depends and defends defections?

    Though Constitution prohibits 'defections', politics of convenience and deception facilitate them. The defection is no more a pre-election phenomenon as politicians are adopting it as part of their strategies to remove or weaken opposition. They are finding strength by luring opposition members. Latest instance, two legislators along with 60 councillors from ruling Trinamul Congress in West Bengal joined BJP in the last week of May 2019, after elections to Lok Sabha. This was described as 'first open-attempt re-invigorated BJP to break-through the ranks of a ruling party'.

    The Prime Minister during one of election rallies in Bengal said that 40 (TMC) MLAs were in touch with BJP and ready to defect after polls. Critics say that TMC leader too used same strategy to break the CPI(M) and the Congress. It appears that the post-poll exodus of representatives in urban bodies had blessings of BJP national leadership as the defectors were welcomed in Delhi Head Quarters in presence of Mukul Roy, former lieutenant of Mamata Banerjee who left her to build BJP in state. The leader openly stated that defections will happen across seven phases.

    The fragile coalition of JDS and Congress in Karnataka is struggling to retain the power by addressing the dissent or dissatisfaction among their members as they apprehend that 10 at least were ready to flee to BJP after its debacle in Lok Sabha polls. Media reported that eight Congress and two JD(s) MLAs may resign and bring the government to a minority.

    Law does not prohibit the defection but says individual members would incur a disqualification on defection. A member would lose the seat in House in two cases- first, when there is a voluntarily giving up of membership of the party and second, when he votes (or abstains from voting) contrary to the directive issued by the party

    The Supreme Court explained in Ravi Naik v Union of India
    : "…. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs".

    In case of the two JD(U) MPs who were disqualified from Rajya Sabha in 2017, they were deemed to have 'voluntarily given up their membership' by engaging in anti-party activities which included criticizing the party on public forums on multiple occasions, and attending rallies organised by opposition parties in Bihar. The decision came within a couple of months by the Chairman of Rajyasabha, (Vice President M Venkaiah Naidu). Those two MPs originally belonged to JD(U), which had a pre-electoral alliance with RJD, but opposed to the decision of JD(U) to denounce RJD and join the rival BJP to form a new alliance subverting the people's consent to the pre-electoral alliance. This exposed a serious defect of anti-defection law.

    It is clear that the Speakers and Chairmen of Councils will serve their original political parties sincerely and act if suitable and comfortable for ruling party and if not, deliberately sit over the other disqualification petitions. This political bias cannot lead to any legal action.

    The defects in defection

    The law of defections has three inherent defects which made it weak against these strong strategies of ruling parties. First and foremost is there is no clarification on the question of Legislature party, whether it includes members of both Rajya Sabha and Lok Sabha at Delhi or Council or Assembly at state level. Second- what if a partner of pre-election alliance ditches it and joins the other party, which it fought in elections? Thirdly there is no time limit for the Speakers or Chairpersons to act on disqualification petitions, which makes these high Constitutional office-holders to sit over the petitions to make them futile and help the ruling party's interests. This obnoxious defect of the anti-defection law makes perpetrate party to judges the 'wrong' as right, which means in all defection petitions, the accused himself judges.

    In recent judgment, the Supreme Court said it is a constitutional sin to defect. If defection has taken place, they paid for their sin by disqualification. This is an inexorable process of law. If that is so, which party is not a sinner? Thus, following nine reasons caused the failure of anti-defection law.

    1. It is convenient to defect.
    2. Only retail is prohibited but whole sale defections are permitted,
    3. No immediate threat of disqualification.
    4. No time-limit to hear the disqualification petition.
    5. If beneficial to Ruling party, Speaker will not disqualify.
    6. Even if disqualified, can survive beyond the term.
    7. To win over an elected candidate is cheaper than winning an election.
    8. A legislator in ruling party can make more money than one in opposition.
    9. Defected legislator can get good returns on his investment to get elected.

    M Sridhar Acharyulu, Former Central Information Commissioner, Professor of Constitutional Law in Bennett University.

    [4] Speaker, Haryana Vidhan Sabha Vs Kuldeep Bishnoi & Ors., 2012, and Mayawati Vs Markandeya Chand & Ors., 1998, 

    [5] Anti-Defecton Law Ignored, November 30, 2017, 

    [9] 2009(3) ALT 324

    [13] As per para 2 (1) (a) and (b) of Tenth Schedule

    [14] Ravi Naik v Union of India, 1994 Supp 2 SCC 641, 

    [15] Parliamentary Bulletin-II, December 4, 2017, 

    [16] Paragraph 59, Harish Chandra Rawat v UoI, 

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