Anti-defection law under spotlight amid Bengal political tussle
The demand for removal of an MLA and two MPs, all from West Bengal , from their respective legislative bodies has triggered the latest round of the political battle between the Bharatiya Janata Party and the Trinamool Congress, bringing the focus back on the country’s anti-defection laws.
BJP MLA Mukul Roy returned to the Trinamool Congress (which he left in 2017) on June 11, and the leader of the opposition in the Bengal assembly, the BJP’s Suvendhu Adhikari, himself a TMC man till December, has vowed to take the legal route if Roy doesn’t resign. Meanwhile, two sitting Trinamool MPs, Sisir Adhikari (Suvendu’s father) and Sunil Mandal joined the BJP from the TMC just ahead of the assembly election but are yet to resign as lawmakers.
The rules for the disqualification of defectors is laid down in the Tenth Schedule of the Indian Constitution. It says, a lawmaker shall be disqualified, “if he has voluntarily given up his membership of such a political party” or “if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs”.
The BJP and Trinamool’s arguments, demanding the resignation of Ray, Mandal and Adhikari from their respective legislatures, lies primarily under the clause 2(a) of the tenth schedule-- “if he has voluntarily given up his membership of such a political party”.
But the issue isn’t simply a matter of a person who leaves a party resigning.
Abhishek Singhvi, the Congress’ top legal expert, said, “There is certainly going to be a legal battle ahead. Knee-jerk verdicts should not be attempted by the BJP or anyone else. The Tenth Schedule has to lead to detailed adjudication if and after a complaint is filed and the Speaker hears all sides.”
The decision to expel a lawmaker under the defection laws is within the powers of the Speaker of the legislative body -- in this case the Speaker of the West Bengal Assembly, Biman Bandopadhyayand the Speaker of the Lok Sabha, Om Birla. The laws give power to the Speaker to decide whether someone falls under the anti-defection laws or not.
The speaker’s role in defection cases has become crucial as well as controversial. On several occasions, the Supreme Court has pulled up the Speaker for partisan behaviour. In 2019, the Supreme Court said there is a growing trend of Speakers of legislative bodies “acting against the constitutional duty of being neutral”; this was in a case where it upheld the disqualification of 17 rebel Karnataka MLAs who pulled down the JDS-Congress government.
In recent years, there has been a growing demand from the Speakers themselves to redefine and perhaps limit their powers under the anti-defection laws should be curtailed. In two meetings of all Indian presiding officers, Rajasthan Speaker CP Joshi and some others put forth the view that political parties should decide who will be disqualified as Speakers come under intense pressure on defection issues, and often get criticised by the courts too.
According to a member of the TMC, Roy is unlikely to resign, and wants to fight it out with the BJP over the defection laws even if it wants to ensure that Adhikari and Mandal are expelled from the Lok Sabha.
Trinamool Congress functionaries said that its Lok Sabha floor leader Sudip Bandopadhyay spoke to Lok Sabha Speaker Om Birla to appeal for the disqualification of Adhikari and Mandal. “Birla told us that he will soon form a committee to decide the issue,” the TMC leader said. .