They defected, re-contested, and became members again, all in six months. Some are even likely to become Ministers soon.
The Karnataka byelection results have widely put to display the ineffectiveness of the Anti-Defection Law. Of the 17 defecting Congress-Janata Dal (Secular) MLAs, 11 were re-elected on a Bharatiya Janata Party (BJP) ticket. Not only did this set of events lay down a well-structured framework to sidestep the law, it even set a dangerous precedent for neutralising the consequences of the law altogether.
The phenomenon of defections is not new to Indian politics. It has been plaguing the political landscape for over five decades. The most prominent case was that of Haryana’s Gaya Lal, originally an independent MLA who, in 1967, juggled between the Congress and Janata Party for two weeks, during which he switched his loyalty thrice. The recurrence of this evil phenomenon led to the 1985 Anti-Defection Law, which defined three grounds of disqualification of MLAs — giving up party membership; going against party whip; and abstaining from voting.
Resignation not a condition
Resignation as MLA was not one of the conditions. Exploiting this loophole, the 17 rebel MLAs in Karnataka resigned, their act aimed at ending the majority of the ruling coalition and, at the same time, avoiding disqualification. However, the Speaker refused to accept the resignations and declared them disqualified. This was possible as the legislation empowers the presiding officer of the House (i.e. the Speaker) to decide on complaints of defection under no time constraint.
The law originally protected the Speaker’s decision from judicial review. However, this safeguard was struck down in Kihoto Hollohan v. Zachillhu and Others (1992). While the SC upheld the Speaker’s discretionary power, it underscored that the Speaker functioned as a tribunal under the anti-defection law, thereby making her/his decisions subject to judicial review. This judgment enabled judiciary to become the watchdog of the anti-defection law, instead of the Speaker, who increasingly had become a political character contrary to the expected neutral constitutional role. The same could be witnessed in Shrimanth Balasaheb Patel & Ors vs Speaker Karnataka Legislative Assembly & Ors (2019), where the three-judge SC bench upheld the then Karnataka Speaker’s decision of disqualification of the 17 rebel MLAs. However, it struck down his ban on the MLAs from contesting elections till 2023, negating the only possible permanent solution to the problem. The Supreme Court played the role of a neutral umpire in this political slugfest. But, the spectacle of MLAs hoarded in a bus, and being sent to a resort, openly exposed not just the absence of ideological ties between a leader and his party, but also her/his weak moral character. It was also upsetting to see public acceptance of such malpractices as part of politics, with some even calling it Chanakya niti !
Exit, and swift return
The Anti-Defection Law provided a safeguard for defections made on genuine ideological differences. It accepted “split” within a party if at least one-third of the members of the legislative party defect, and allowed the formation of a new party or “merger” with other political party if not less than two-thirds of the party’s members commit to it. The 91st Constitutional Amendment introduced in 2003 deleted the provision allowing split.
The 91st Amendment also barred the appointment of defectors as Ministers until their disqualification period is over or they are re-elected, whichever is earlier. But, obviously, such laws have not put to rest the trend of defections.
The main issue, as witnessed in Karnataka, is that the defectors treat disqualification as a mere detour, before they return to the House or government by re-contesting. This can only be stopped by extending the disqualification period from re-contesting and appointment to Chairmanships/Ministries to at least six years. The minimum period limit of six years is needed to ensure that the defectors are not allowed to enter the election fray for least one election cycle, which is five years.
Of course, MLAs can still be bought from the ruling dispensation to bring it to a minority by being paid hefty sums, simply to stay at home for six years.
Almost every political outfit has been party to such devious games, with hardly any political will to find a solution.
The writer is former Chief Election Commissioner of India and the author of An Undocumented Wonder — The Making of the Great Indian Election
