Anti-Defection Law is ineffective

Hyderabad: After AP Chief Minister N. Chandrababu Naidu, it was Telangana CM K. Chandrasekhar Rao’s turn on Wednesday to lure MLCs in order to gain an upper hand in the Legislative Council.
Four days ago, seven Seemandhra MLCs from other parties had joined the Telugu Desam and on  Wednesday, nine MLCs joined the TRS. Both ruling parties want to have majority in their respective upper houses where presently the Congress has majority.

The so called “Operati-on Akarsh” will continue till both the ruling establishments attain majority in the respective upper houses and also bag the key posts of Presiding Officers.

Though the Anti-Defection Law prohibits changing of parties by legislators, there is ambiguity in the definition of defection, which can be interpreted only by the respective presiding officers of the Legislative Council or Assembly as the case may be, after a thorough enquiry, which does not have a prescribed time limit.

There are two types of defections defined in the Act which is part of 10th Schedule of the Constitution, one being voluntarily giving up membership and the other one being violating the whip issued by the party.

As far as the second one is concerned, which is called “open defection” (by violating the whip issued by the party), there shall be a petition submitted to the presiding officer within 15 days of the violation of whip by a member. But for the first one  voluntarily giving up membership  there have been different  interpretations by a number of presiding officers.

If a member resigns his House membership and that of the party, presiding officers have limited choice in rejecting the same though he enjoys full freedom in deciding whether the member has given up his membership voluntarily or under duress. There is no time limit for this, which was evident in the undivided AP Assembly when several ruling party MLAs had submitted resignations that were either rejected or kept pending.

Under the same category, if a member, without formally resigning from his party, decides to support or join another pa-rty (the present case), the role of presiding officers in deciding these cases become more crucial.

It is usually a fact in the country that the presiding officers belong to the ruling party.

There are thus instances of presiding officers taking several months and even years in taking a decision on these matters. Under the 10th Schedule of the Anti-Defection Law, Rule 7 states that Courts are barred from entertaining such disqualification petitions as the decision of the presiding officer is final.

Another interesting feature in the Anti-Defe-ction Law is that there is no bar for a person who has been disqualified on the grounds of defection to be a Member again.

In the case of MLCs joining either the TD in Seemandhra or the TRS in Telangana, majority of the members’ terms finish next year and even if disqualification petitions are filed now, no one knows if they will be taken up before their terms end.