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Anti-Defection Law Controversies Began in Manipur With 1993 Borobabu Case But The Current One is Likely to End on May 28

The long-standing decision under the anti-defection law may soon be announced on the seven Congress MLAs who switched allegiance and stood with the BJP after the 2017 elections in the state. The Assembly Speaker Y Khemchand Singh, who has been unable to decide whether the seven MLAs are part of the BJP, has reserved the case and set a unspecified but close future date for a decision which could prove to be a precedent for the anti-defection law, or the 10th Schedule as it is known. The Manipur High Court has in the meantime, after hearing seven petitions against the seven legislators on Thursday, set a date for the legislators to submit relevant documents on May 28.

The political churning involving Manipur’s elected representatives has again, one could say, revived memories of the Aya Ram Gaya Ram days, when a Haryana legislator Gaya Lal changed his allegiance three times in a single day in 1967, and the present case in Manipur is supposed to blatantly show how the machinations of politics can put the best of law to a test in rare situations.

Another of the total of eight MLA, Th Shyamkumar Singh, was banned from entering the state Assembly and stripped of his ministerial post by an interim order of the Supreme Court on March 18 this year, following which the Manipur Legislative Assembly Speaker’s Tribunal disqualified him from the state Assembly for the entire term of the current Assembly. The Speaker said the reason for the prolonged case was the filing of 13 petitions before the tribunal and appeal petitions filed by the Congress petitioners in the High Court and the Supreme Court which created a lag. The controversy, where Shyamkumar defected and joined the BJP right after being elected on a Congress ticket, carried on for over three years.

The law in question is the 10th Schedule of the Indian Constitution, or the anti-defection law, which addresses the problem caused by elected legislators changing allegiance from the party they supported at the time of elections, or disobeying of the party’s decisions at critical times like voting on important resolutions. To stem the tide of frequent defections noticed after elections as early as 1957 and till 1979 the 10th Schedule of the 52nd Amendment to the Constitution of India was passed by the parliament in 1985 after it was taken up by then prime minister Rajiv Gandhi. Before 1979, the Congress (I) party remained the sole beneficiary, getting a stronghold over power in instances even when legislators left their parties to form separate new parties with an aim to exert power in future through a coalition government rather than join established parties.

In the 1977-79 period of a non-Congress government led by Morarji Desai the urgent need for an anti-defection law could be felt with the ruling government driven out of power by a defection of 76 parliamentarians. Indira Gandhi took over in 1979 but there was a clear trend noticed in the 70s and 80s that whenever there was a Congress-led government at the Centre the regional governments crumbled very soon because of the defection of non-Congress elected representatives. Due to the rising public opinion for an anti-defection law Rajiv Gandhi proposed the new anti-defection bill in the parliament in 1984 and soon after it came into effect in March 1985.

The new law stated the process for disqualifying an elected member from the remaining term, who defected either by resigning or by defying the party whip and being absent on a crucial vote. There was relaxation for mergers and splits of political parties; allowing splits in the party by one-third of its members and merger (joining another party) by two-third of the party members. Later, to make the anti-defection law firmer, an amendment was added to the 10th Schedule in 2003 whereby the disqualified member due to defection would not hold any ministerial post or any other remunerative political post till the term of his office as a member expired. The 2003 law also amended the 10th Schedule by the 91st Amendment Act 2003 allowing defections if two-third of the members of a party were in favour of a ‘merger’ with another party. The 91st Amendment also made it mandatory for those switching sides – singly or in groups – to resign their legislative membership and seek re-election if they defect.

Now, in the backdrop of these legislations most people feel that the law has been interpreted badly in the present case of the seven Congress MLAs. The MLAs are Ginsunhao Zou (Singhat), Ngamthang Haokip (Saitu), Paonam Brojen (Wangjing Tentha), Yengkhom Surachandra (Kakching), Oinam Lukhoi (Wangoi), Sanasam Bira (Kumbi) and Kshetrimayum Biren (Lamlai).

This instance it appears has put the reputation of the state Assembly at stake with 15 unresolved appeals by Congress members filed against the seven defecting MLAs, posing an accompanying question being increasingly asked by the petitioners and other observers, even before the other decision on the Shyamkumar case came, whether the Speaker has not breached the sanctity of his office, so that even the Shyamkumar case which was supposed to be decided in the Assembly itself, had to be taken to the Supreme Court. The Manipur Assembly Speaker’s Tribunal on May 8 reserved judgment on the disqualification petitions filed against the seven MLAs.

Defection dramas are common to the state with the O Ibobi government surviving an attempt from the BJP-led Democratic People’s Alliance to topple his Secular Progressive Front government in 2003-04 with the President’s assent to the anti-defection amendment bill that sought to disqualify MLAs defecting to other parties coming to his aid in the nick of time in January 2004. A sort of irony was that the 91st Amendment came under the initiative of the BJP’s Atal Bihari Vajpayee government. Ibobi had held camps for weeks at his office and in a hotel in Kolkata to prevent 10 of his party ministers from deserting him. Overall the anti-defection law went to Ibobi’s favour from the beginning of his first term itself in 2002. However, eventually in the later years of his career, at the critical moment of government formation after the 2017 elections, Shyamkumar’s defection paved the way for the formation of a BJP-led government, leaving Ibobi in the lurch.

Whereas the Speaker’s decision is often considered critical and no past precedence or convention can be cited to influence the Speaker’s decision there have however been many past instances wherein the Speaker’s decisions have been partisan and highly controversial. In the early 1990s then Speaker Haobam Borobabu Singh often brushed aside the ruling of the Gauhati High Court and also was caught in a legal wrangling with the Supreme Court. Borobabu even ordered the compulsory retirement of the Assembly Secretary who wanted to implement the court order against his ruling. He landed in a contempt case but took the stand that the Speaker by virtue of his position was immune to the contempt proceedings in the Supreme Court.

It was reported at that time that due to Borobabu’s repeated disqualifications of MLAs at one time in the 60-member Assembly as many as 21 MLAs stood disqualified reducing the effective strength to 39 only, and under the circumstances the Dorendra Singh ministry won the vote of confidence in April 1992. Irked by the repeated defiance of Borobabu, the Supreme Court ordered the Union government to produce him before the court on March 23, 1993. Finally, Borobabu personally appeared on the day before the Supreme Court consequent to which the contempt proceedings were dropped.

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