Futility of anti-defection law

It is politics of loyalties and desired disqualifications. The internal war of the Congress is disqualifying the party from being in power. The so-called defectors are loyalists of Y S Rajasekhara Reddy, once a favourite of the high command, who is now a persona non grata. Whether the Congress has defected from Y S R because of latter's son or YSR loyalists have 'defected' from the Congress is an unasked question.

The paradox in the State's ruling party is that it got strengthened after losing its nine legislators; Jagan's YSR did not gain because there is no time to get them elected on their party ticket. The party has chosen such timing of the disqualification that the Congress government does not fall even if another no confidence motion is moved. Technically speaking, there is no possibility of introducing another motion because it was voted out in this Budget session. If for any reason it is moved, the Congress has no apparent threat unless another 14 Congress legislators revolt to join the YSRC.

Three months ago a no-confidence motion was moved by the TRS against Kiran Kumar Reddy. The Congress Legislature Party naturally asked its members to vote against the motion, while the TDLP issued whip to its members to be neutral; 18 MLAs were defiant. Though Kiran succeeded in the motion, his party lost stability and peace for the remaining term. Fifteen MLAs of the Congress and the Telugu Desam, all of whom were known to be loyal to the YSR Congress, were disqualified from the Andhra Pradesh Assembly for defying the whips and voting for the no-confidence motion on March 15, 2013.

In his judgment, the Speaker said that respondents had exercised their vote on the motion on the floor contrary to the whip issued, attracting provisions of the X Schedule to the Constitution read with the AP Legislative Assembly (Disqualification on the ground of Defection) Rules 1986.

Everyone has all along known it. The media speculated as much in advance and that happened almost on expected lines. The YSR Congress Party has desired and designed these developments and also demanded immediate disqualification and conducting of by-elections so that its strength is increased. It is not new at all as these developments were a virtual replay of the political drama enacted in March 2012 when 17 Congress and TDP MLAs were disqualified for voting against the government during the no-confidence motion and in the ensuing elections returned on YSRC ticket.

YSRC loyalists said they were proud to be disqualified as they had taken a principled stand after the Congress and the TDP had joined hands to cause hardship to late YSR's family. But it has to be established in a formal adjudication process before the quasi-judicial authority: the Speaker. The rebel TDP legislators have questioned the legality of the whip issued by the TDLP.

They have decided to challenge the disqualification petitions filed against them by the TDP before courts of justice. The three legislators, K Harishwar Reddy, S. Venugopala Chary and Chinnam Ramakotaiah, questioned the notices and sought to know how disciplinary action could be initiated against them as they had not received the whips purported to have been sent by the Telugu Desam Legislature Party (TDLP) Whip Dhulipala Narendra.

However, defections were there as Mr. Harishwar and Mr. Venugopalachary joined the TRS, while Ramakotaiah is planning to join the YSRC. First they are litigating before the Speaker and are determined to take the issue to courts thereafter.

Ramakotaiah, attacking the TDP in his petition, reportedly questioned the very basis of issuing a whip for the no-confidence motion a day ahead of the no-trust motion. He wanted to know how the TDP leadership knew that the Assembly would take up a no-confidence motion on March 15 and accordingly issued whip to its legislators on March 14. It was only after the Business Advisory Committee meeting on March 15 that the no-trust motion was taken up.

Six other TDP MLAs � P. Sairaj, T. Vanitha, Kodali Venkateswara Rao alias Nani, N. Amarnath Reddy, Praveen Kumar Reddy and Y. Balanagi Reddy, who switched their loyalties to the YSR Congress, abstained from the hearing. Instead, they faxed their replies urging the Speaker to disqualify them without any delay. The influx from both the Congress and the TDP into YSRC was almost certain; some of them from Telangana are joining the TRS. Those rebel legislators from Congress and TDP, in an open letter to the Speaker, appealed that they should be disqualified immediately to pave the way for conduct of by-polls.

The 13 rebels alleged that there was a conspiracy by the ruling Congress and the TDP to get them disqualified and ensure that there are no by-elections. The rebels said the Congress-TDP game plan was to somehow avoid by-elections. "Fearing defeat in the by-polls, the Congress and the TDP are now playing a new drama to delay our disqualification," they alleged. The Constitution prohibited the defections, though the Tenth Schedule permitted large-scale defections in the name of merger. It is obvious that defectors do no more fear the law that disqualifies them. Legislators are defecting with impunity and most of the times there is a demand for immediate disqualification.

Those who defected to the YSRCP are confident of returning to the Assembly. These developments show the futility of the law of defections being part of the Tenth Schedule. The anti-defection law has failed for four reasons. Firstly, the holder of office of speaker is not apolitical, but definitely belongs to the ruling party and it is difficult to imagine that such an office-holder would act against the interests of his or her parent party.

Secondly the Speaker is not inclined to believe that he has inherent powers to act and order when an obvious defection takes place and not ready to use suo motu powers. He waits for someone to file a complaint. Thirdly, he has discretion in choosing the time of his order. Fourthly, there is no period of limitation prescribed for filing a complaint or ending the trial. The delay to decide an obvious thing about defection, i.e. disqualification, reduces the Speaker's adjudication based on the law of defection into a joke.

The latest disqualification was a well-calculated and safe move for the Congress party as it neither led to by-elections nor did it destabilize the State government. In addition, it removed nine rebels and reduced the threat of being voted out. The defections were expected by both the Congress and the TDP, while the YSRCP was waited for them. They have meticulously chosen a date beyond June 3, the day on which 13th Assembly was constituted in 2009, because the disqualification before that date would have led to by-elections, which would have been inconvenient for the ruling party.

If defection helps the ruling party, disqualification is out of question. If it harms the government, the Speaker does not hesitate to disqualify defectors. But those disqualified will take the issue to courts and continue in office comfortably for the rest of the term.. Delay and postponement are the strategies to hoodwink the constitutional provisions. Above all this, the easy and huge money plays a very destructive role as legislators are not worried about re-election. Black money can paint the democracy in black.

Whether the Congress has defected from Y S R because of latter's son or YSR loyalists have 'defected' from the Congress is an unasked question

The writer is professor and coordinator, Center for Media Law & Public Policy, NALSAR University of Law, Hyderabad