New Delhi: The fall of the Kamal Nath-led Congress government in Madhya Pradesh following a mass resignation by 22 of the party MLAs, to pave the way for the formation of an alternate government, is being seen by constitutional and legal experts as another attempt to belittle the spirit behind the Tenth Schedule of the Constitution.
The schedule contains what is better known as the anti-defection law.
Most of the experts that The Wire spoke to said the only way to counter such use of resignations as a tool to bring down elected governments was by debarring the MLAs from contesting again for a fixed term.
‘Outlived its utility’
Senior Supreme Court advocate Sanjay Hegde said the recent developments “only show you that the anti defection law has outlived its utility.”
He said it was intended to stop the ‘aaya ram gaya rams’ (a phrase for turncoats that was coined after Haryana MLA Gaya Ram thrice changed his party on a single day in 1967).
But, Hegde said, the political parties found a way to bypass the law by using “bulk purchase” of MLAs and their resignations as a tool. “Now the loophole was found in Karnataka in Operation Lotus which installed B.S. Yeddyurappa when people began resigning. You cannot stop people from resigning and getting re-elected.”
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On what can be done to prevent this misuse of power to resign, Hegde said: “A possible remedy lies in what the then Karnataka Speaker did by disqualifying MLAs for the rest of the term of the Assembly. But the Supreme Court struck down saying this, that the Speaker had no powers.”
‘Debar MLAs who resign from contesting again’
So, he said, “If parliament wants to make anti-defection effective and curb the vice of resignations, it should suitably amend the law to say that anybody who resigns as a legislator or parliamentarian cannot then stand for re-election for a period of six years. This is the solution that needs to be adopted – but it has to be done by law and it cannot be done by Speakers.”
He said going beyond and putting a bar on the immediate family members of the MLAs or MPs who resign would not be possible as “that you can’t prevent” and such people would even find ways to bypass such clauses.
However, Hegde reminded that the case of Lalu Prasad, who installed his wife Rabri Devi as chief minister, has shown that when politicians try to transfer power it ends up reducing their own influence.
‘A new technique’
Former Secretary General of Lok Sabha and an expert on constitutional matters, P.D.T. Achary too spoke about how “resignation of members to bring down a government is a new technique” that is being tried to bypass the provisions of the anti-defection law.
“This is a new phenomenon which started in Karnataka. Now it has gone to Madhya Pradesh and they are trying it in Gujarat also – though there the members have resigned to prevent the Congress candidates from getting elected as members of the Rajya Sabha.”
Stating that such resignations are outside the anti-defection law, Achary said it is for the Speaker to accept or reject the resignations of MLAs. However, in case of mass resignations, he said, “the Speaker can reject them if he finds through his own inquiry that this resignation is not voluntary or coerced.”
‘Mass resignations indicate external pressure, Speaker should reject them’
Pointing out that the Speaker can also call the member and ask him if the resignation is voluntary, Achary said what he should bear in mind are the circumstances. “For a member can say that it is not under duress, but the Speaker has a constitutional duty to ascertain if it is voluntary or under some pressure.”
In the case of Madhya Pradesh, he said, it was for the Speaker to decide if the resignations were given under pressure. “When 22 members of a House resign, it is not a normal thing or an individual’s choice of resigning. So when it is a collective decision, then there is bound to be some extraneous pressure. Otherwise why would 22 MLAs resign? They are not giving any credible reason. The point is the Constitution does not recognise any resignation if it is under pressure.”
‘MLA should face disqualification, be barred from contesting again’
Achary said, “If the Speaker does not accept the resignations, then they will not be effective and the MLAs will continue to be members. Then they can be caught by the full force of the anti-defection law when they defy the party whip and vote against it or abstain from vote.”
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On the idea behind the anti-defection law being to provide some level of comfort and stability to the government and how it is being bypassed through resignations, he said there is an urgent need to curb the practice. “My strong view is that there should be a disqualification (for MLAs who resign) from contesting the elections. If a person is disqualified for anti-defection, then he should be debarred from contesting for at least three years.”
That, Achary said, will effectively deter these people from defecting. “Right now they know there will be no consequences, the government will fall and they will be able to re-contest and come back.”
‘Right of every MLA to resign’
Political scientist and another former secretary general of Lok Sabha Subhash C. Kashyap, while not commenting on the righteousness of use of resignations as a tool to bring down governments, spoke about how the right of every MLA to resign from his post has come to be exploited.
But, he added, that the right to resign cannot be taken away. “It is a right of every MLA to resign from the post he holds – everyone has the right to give up their membership. The Speaker is bound to accept it after satisfying himself that the resignation is voluntary. You cannot force a person to remain a member if he does not want to.”
On what necessitated re-election when an MLA resigned from a party, he said: “The spirit of the anti-defection law was that if you have a negative view with regard to the party which elected you, then you should resign and seek a re-election. This was laid down in the objectives of the law.”
He recalled how when after Independence, the Congress Socialist Party broke away from the Congress to form the Socialist Party of India, in Uttar Pradesh all its members resigned from the membership and sought re-election. “That was cited as the ideal that if you have to change your party, then you seek re-election. So if you change your view about your party, then you should resign and seek re-election on the ticket of the party you have joined. You are elected on the basis of your membership of the party you owe allegiance to and so if you change your party then you should go back to the people,” Kashyap said.