Subverting Anti‑Defection Law

Presiding officers are inordinately delaying decision, giving an opportunity to the defecting legislators to escape from the Anti- Defection Law. This is a clear subversion of democracy

The defection of legislators from Congress and the Telugu Desam Party to the ruling TRS is rocking the Assembly. The ruling and the opposition par- ties are trading charges over the is- sue. But, the fact is that both the camps are to be blamed for the pres- ent state of affairs. The unethical political system has subverted the Constitutional Provisions regarding the defections.

A member of the House would be disqualified from the member- ship if he or she “voluntarily gives up the membership of the party.” The Constitutional Provision deliberately uses the phrase “voluntarily giving up the membership”. A member need not even resign from a party to attract the provisions of the Anti-Defection Law.

The Supreme Court has already given interpretation for the phrase. A member who publicly opposes the party or state his sup- port for another party would be deemed to have resigned from his or her party. Therefore, the Consti- tution and its interpretation by the judiciary make it clear that the de- fected legislators have to be dis- qualified from the membership of their respective Houses. But, the law gives the decision- making power with regard to the implementation of the law to the Presiding Officer.

Precisely, the problem lies here. The law states that the Presiding Officer’s decision is final and not subject to judicial review. The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the Presiding Of- ficer gives his order. However, the final decision is subject to appeal in the court. The Constitution be- lieves that the constitutional office acts according to the provisions un- less otherwise the case may be.

But, the presiding officers are in- ordinately delaying the decision, thereby giving an opportunity to the defectors to escape from the Anti- Defection Law. This is a clear sub- version of democracy. Interestingly, today’s victims are yesterday’s per- petrators and vice-versa. The Dinesh Goswami committee on electoral reforms (1990), the Election Commission and the Venkatachaliah Com- mission to review the Constitution (2002) have recommended that the decision should be made by the President or the Governor on the ad- vice of the Election Commission.

The Venkatachaliah Com- mission also recommended that the defector should be barred from holding any ministerial or remuner- ative political office from the re- maining term of the House. This would act as a disincentive for de- fection. Ultimately, the political culture would determine the efficacy of such a law. Parties and politicians have innovative ideas to subvert the Constitutional Provisions. Unfortu- nately, the defectors are not pun- ished by the electorate.

The parties are ready to receive them on any later date. Political parties are in- creasingly getting devoid of ideol- ogy. Thus, the Constitutional Pro- visions are held hostage to political expediency. There should be a pub- lic debate on the implementation of the Anti-Defection Law to effect necessary changes.

Presiding officers are inordinately delaying decision, giving an opportunity to the defecting legislators to escape from the Anti- Defection Law. This is a clear subversion of democracy

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