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Does the anti-defection law fall short of stopping the ‘Aya Ram Gaya Ram’ phenomenon

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New Delhi, June 10: The anti-defection law was brought in by the Rajiv Gandhi led Congress government to put a halt to the 'Aya Ram Gaya Ram' problem.

Questions are now being raised on whether the provisions of the anti-defection law are sufficient in the wake of the Congress losing 12 of its 18 MLAs to the TRS in Telangana.

Does the anti-defection law fall short of stopping the ‘Aya Ram Gaya Ram’ phenomenon

The Speaker of the House Srinivasa Reddy accepted the request of the 12 defecting MLAs to merge with the TRS as they constituted two-thirds of the total strength of the Congress legislature party.

The Anti-Defection Law, explained

The question now is if the law is good enough to stop defections. The law was added to the Constitution through the 52nd amendment. In the Tenth Schedule two circumstances have been envisaged when a lawmaker can be disqualified- one if he or she voluntary gives up the membership of a party and two when he or she votes or abstains from voting contrary to the decision of his or her party.

The irony is that the lawmaker can still retain the membership of the House even if he or she is expelled by the party. In the G Vishwanathan vs Speaker, Tamil Nadu case of 1996, the Supreme Court had said that an expelled lawmaker is bound by his or her party's while even after expulsion.

The court further said that the failure to obey the whip would result in the disqualification from the House.

Paragraph 2(1) in the Tenth Schedule posts out that an elected member shall continue to belong to that political party with whose ticket he or she won the election. The Tenth Schedule originally recognised a split in a legislature party if one third members formed a new group or joined a party.

However in the 91st amendment of 2004, the law recognised a merger that requires at least 2/3rd members of a legislature party to join another one or form a new one without attracting the anti-defection law.

With such loopholes, there are several aspects that one must ponder over. Should the suggestion of the Dinesh Gowswami Committee on Electoral Reforms be taken into account. The committee and the Law Commission in its 170th Report in 1999 had said that anti-defection laws should be used only during no-confidence motions.

Congress takes to the streets in Telangana, slams KCR for 'encouraging' defection of 12 MLAs

Further the Constitution Review Committee headed by Justice M N Venkatachalaiah had said that instead of the Speaker, the decision on the disqualification of lawmakers should be taken by the president or the Government as the case may be. The committee further recommended that action be taken on the advise of the Election Commission as is taken in the case of disqualifications on the grounds of office of profit.

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