Defects in Tenth Schedule: Perpetuating Constitutional Sin of Defections

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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 

[9].

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

[13].

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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