New Delhi, May 19: When Chief Minister BS Yedyurappa enters the Assembly to prove he has the numbers to form the government, on test will be his might and also the Tenth Schedule of the Constitution, popularly known as the anti-defection law.
Amid possibilities of the BJP engineering MLA abstentions from the House to win the vote, constitutional experts are worried that the Tenth Schedule might stand compromised.
Contrary to the prevailing narrative that the rigours of the anti-defection law apply after an elected MLA takes oath of office, the law actually comes into force the moment a candidate is elected on the symbol of a certain political party and is issued an election certificate by the Election Commission. Oath is required only later for purpose of voting in the House.
Under the Tenth Schedule, an MLA can be disqualified if he leaves the party on whose symbol he was elected or even if he defies the party whip.
But PDT Achary, former Lok Sabha Secretary General, conceded to a major lacuna in the law which has of late been exploited for political expediency. The anti-defection law doesn’t prescribe any time limit for the Speaker to disqualify a member for violations.
“Disqualification of a violating MLA is on the discretion of the Speaker, who may or may not act against the MLAs who defy the law. Even the Supreme Court cannot order the Speaker to act in this matter in a certain period of time because the law is silent on the time within which a defaulting MLA should be disqualified,” Achary said.
There are past examples of Speakers sitting on MLA disqualifications for years despite sufficient evidence for the Tenth Schedule having been disregarded.
This means if the BJP engineers defections of some Congress or JD(S) lawmakers to reduce the effective strength of the Assembly and win the vote, the disqualification of the abstaining lawmakers under the anti-defection law would depend on the authority of the Speaker, who may act against them or may choose to let time lapse, thereby enabling the MLAs in question all privileges of the House.
Achary says the writers of the anti-defection law had placed complete trust in the Speakers as constitutional authorities who would act as per the law, which was why they didn’t prescribe any time within which to disqualify a member found violating the law.
Former chairman of Lok Sabha Ethics Committee KC Deo said the same law also said that the party could claim the support of other MLAs only in a situation of a two-third merger by the party of these stated MLAs.
“The BJP can claim the support of Congress or JD(S) lawmakers only if two-thirds of the MLAs of each of these parties support the BJP. Anything less than that would attract the anti-defection law provisions,” he said. The BJP has 104 MLAs in a House of 222 and needs 112. It can either show support of eight non-BJP lawmakers or see to it that some of the elected non-BJP MLAs abstain from voting, thereby reducing the effective strength of the Assembly lower than 222.
