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 a cloth-roll and stitching it with another, called merger, though design, colour or texture does not match.
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
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.
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.
YS Rajasekhar Reddy's role
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'.
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.
- It is convenient to defect.
- Only retail is prohibited but whole sale defections are permitted,
- No immediate threat of disqualification.
- No time-limit to hear the disqualification petition.
- If beneficial to Ruling party, Speaker will not disqualify.
- Even if disqualified, can survive beyond the term.
- To win over an elected candidate is cheaper than winning an election.
- A legislator in ruling party can make more money than one in opposition.
- 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.
 Speaker, Haryana Vidhan Sabha Vs Kuldeep Bishnoi & Ors., 2012, and Mayawati Vs Markandeya Chand & Ors., 1998,
 Anti-Defecton Law Ignored, November 30, 2017,
 2009(3) ALT 324
 As per para 2 (1) (a) and (b) of Tenth Schedule
 Ravi Naik v Union of India, 1994 Supp 2 SCC 641,
 Parliamentary Bulletin-II, December 4, 2017,
 Paragraph 59, Harish Chandra Rawat v UoI,