Recent days and months have witnessed a rising trend of political desertions prompting affected parties to seek the review of India’s anti-defection law, popularly known as the Tenth Schedule of the Constitution.
The saga of defections began on April 24 with seven Aam Aadmi Party members in Rajya Sabha breaking away from the parent legislature party and merging with the BJP — all in a day.
Then came a stream of defections in Tamil Nadu where several AIADMK MLAs quit the Dravidian outfit to align with the newly formed Joseph Vijay led TVK which won assembly elections.
Almost simultaneously, the once formidable Trinamool Congress supremo Mamata Banerjee was hit by a wave of betrayals, first by 58 of her 80 party MLAs in West Bengal and yesterday by 20 of the party’s 28 Lok Sabha members in Delhi.
In both cases, the legislature parties split by two thirds of the original strength and claimed existence as a separate group under the anti-defection law’s provisions that a two third split opens doors for recognition as an independent bloc. While the 58 rebel MLAs wrote to the Bengal speaker saying they were the real Trinamool, 20 rebel MPs wrote to Lok Sabha Speaker Om Birla urging them to be treated as a separate group backing the BJP led NDA in the Lower House.
As these events unfold, there are signs surfacing of a potential split in the Uddhav Thackeray led Shiv Sena UBT too.
With the anti-defection law and its provisions under constant strain, opposition leaders and followers of the law now say the latest absurd developments warrant a review of the controversial legislation.
Two senior lawyers who are both also MPs — Abhishek Manu Singhvi (of the Congress) and Kapil Sibal (independent MP) have described ongoing developments across parties as inexplicable and against the statutes.
Both say that elected rebels, MLAs or MPs, must resign their seats and seek re-election on the symbol of a party they wish to join.
Alternatively, these MLAs and MPs who have resigned and decided to form a separate faction of the parent party on their own must be disqualified by the Speaker of the assembly and the Lok Sabha.
Singhvi has gone to the extent of describing the current trend as a huge, complete and ridiculous conceptual distortion of the anti-defection law and said it is time to change the law.
“This distortion is that anywhere any legislature party – if two thirds of its members walk out and form a group then the anti-defection law doesn’t apply. This is the most ridiculously wrong interpretation and is based on complete ignorance or deliberate non-understanding of the existing law which has been decided by the Supreme Court," Singhvi says.
Opposition leaders also cite the famous 2002 Shiv Sena judgment of the Supreme Court to say that there is no concept of a two thirds simpliciter in the legislature party which will prevent the application of the anti-defection law on the defectors.
The defectors will be subject to disqualification, Singhvi argues.
While both senior lawyers point to the Supreme Court judgments and the anti-defection law itself to argue that desertions by two thirds of the legislature party do not automatically lead to a recognized split of the parent party, they also admit that in the current political scenario the process is the punishment.
On what happens next after 20 MPs of Mamata Banerjee led TMC broke away from the parent outfit and wrote to the house speaker for recognition as a separate bloc, Singhvi says under the law Mamata Banerjee can now file a complaint to the Speaker against the rebels who have left.
But in the prevailing political system where the Speaker is the nominee of the ruling party, it is obvious that he or she will admit the claim of the rebels and reject the claim of Mamata.
Trends suggest that in all past cases of desertions dissidents have been recognised as the formal party. The cases in point are of Eknath Shinde faction of the Shiv Sena and late Ajit Pawar led faction of the NCP in Maharashtra.
The law says once the Speaker has granted recognition to rebels, the original party can move court against the Speaker’s decision.
But the courts take three to four years to adjudicate by when politics of the state or the country has moved and overtaken events.
Citing the above challenges, Singhvi says it is time to repeal the Tenth Schedule and amend it to say that if anybody — an MLA or an MP — elected on the symbol of a given party directly or indirectly indulges in anti-party activities or joins and support any other party or bloc, he or she must resign the post they holds and contest elections afresh.
This is what Mamata led TMC has urged the rebels to do — exhibit the moral courage to resign their seats, contest on BJP symbols and return to Lok Sabha as BJP MPs.
