By India Legal Bureau
As the Aam Aadmi Party (AAP) won the Delhi municipality elections, one interesting aspect of the post-election scenario came to light—the anti-defection law of 1985 that guides all elections in the country, seemingly does not apply to the Municipal Corporation of Delhi (MCD).
This is an oddity that has been overlooked so far, but came to light as the Bharatiya Janata Party (BJP) declared that the MCD may now be AAP’s, but the mayor could be from the BJP. How was that supposed to be? Through cross-voting. This has happened before in other states.
As per Indian parliamentary norms, a member of an assembly or of the Lok Sabha or Rajya Sabha, can surely vote as per his/her conscience and decide his/her choice on specific issues, but if his/her party issues a whip—even if it is not a three-line whip—the member must abide by the whip. Not abiding by this whip can be considered anti-party activity and falls within the purview of the anti-defection law, inviting stringent disciplinary action from the party and/or the speaker of the House. This is a particular issue, apart from floor-crossing, that is strictly maintained by the parties. Each party wishes to keep its flock together, preventing its members from being “bought” over by the opposition. Integrity and honesty of legislators being at a premium in India, defection in this country is large-scale, yet partie try to keep within the boundaries of law and decency.
It has become so rampant that former Vice-President M Venkaiah Naidu, a former BJP legislator and leader and who was also the chairman of the Rajya Sabha (as vice-president), had once commented that despite the stringent anti-defection laws, cross-voting or floor crossing was going on. He had said: “There are certain loopholes in the anti-defection law. It allows wholesale defection. But retail defection is not allowed. Amendments are required to plug the loopholes.”
Yet, there is another gaping legal hole that exists within the municipalities. The MCD does not fall within the ambit of this law. Which means, it is a free-for-all house and horse-trading would become the norm.
AAP won 134 out of the 250 wards and BJP won 104. In a similar situation in 2014, Congress councillor Praveen Rana was elected deputy mayor of the erstwhile south corporation with the support of independents, though BJP was in power.
BJP IT department head Amit Malviya had suggested that the mayor’s election was still an open game, pointing out that Chandigarh, where its rival is the largest party in the House, has a BJP mayor. “Now over to electing a mayor for Delhi. It will all depend on who can hold the numbers in a close contest, which way the nominated councillors vote, etc. Chandigarh has a BJP mayor, for instance,” he had tweeted.
The method in the madness
To understand a bit of this madness, one needs to understand how the mayor is elected, especially in the national capital.
Quite like a chief minister or even the prime minster, a mayor is not just directly elected by the voters. Having crossed the first (general) election hurdle, he/she then will have to gain the confidence and votes of elected representatives also. However, there will be more people at play than the just elected corporators.
In Delhi, for example, in addition to the elected councillors, 14 MLAs are also nominated to the MCD House every year and these nominations change every year. At the point when this issue cropped up, out of 14 nominated MLAs, 12 or 13 were from AAP while one or two MLAs were from the BJP. And that was not the end of the composition of this so-called “college”. Seven Lok Sabha MPs and three Rajya Sabha MPs from Delhi are also nominated members. This being the national capital, all such unfortunate additions happen. One has to remember that all of them have the right to vote in the elections held for the post of mayor.
So, the arithmetic says that out of a total 24 MPs and MLAs, 15 or 16 will be from AAP while 8 or 9 will be from BJP. So the AAP, which already has a majority, seems to have an upper hand here. That is where the floor-crossing virus may act up. Since the anti-defection law is not in force in the MCD, hardly any action can be taken—except for censure and later retribution—against these “rebels without a pause”.
Special laws
That is the situation with most municipalities of the country. Some have their own laws that try to control this bad habit of crossing for dollar and a dime. The state of Odisha is a case in point. As per an insertion in the Odisha Gazette of January 14, 2016, a notification of the Housing and Urban Development Department, says that “…in exercise of the powers conferred by sub-section (1) of Section 656 of the said Act [the Odisha Municipal Corporation Act, 2003 (Odisha Act,11 of 2003)], the State Government do hereby make the following rules further to amend the Odisha Municipal Corporation Rules, 2004…”
This was the Odisha Municipal Corporation (Amendment) Rules, 2016. It says that “In the Odisha Municipal Corporation Rules, 2004, after Chapter-VII, the following Chapter shall be inserted, namely:
“Chapter-VIII
“Disqualification on the ground of defection
“…Manner of filing of complaint—(1) A complaint for decision relating to disqualification on the ground of defection under Section 112 A shall be made to the Election Commission.
“(2) The complaint under sub-rule(l) may be made in writing to the Election Commission by any Corporator or the Political Party.
“(3) Before making any complaint in relation to any Corporator, the complainant should satisfy himself that there are reasonable grounds for believing that … such Corporator has become subject to disqualification’ U/S 112A…”
It also adds: “…Every complaint under sub-section (1) of Section 112 D shall be disposed of by the Election Commission in accordance with the procedure as applicable while trying a suit under the Code of Civil Procedure, 1908 and the Election Commission, while deciding such complaint shall have the powers of a Civil Court (in respect to certain matters).”
While the new amendment does not immediately disqualify the “rebel” councillor, it is at least possible for the aggrieved party to make a case of it before the Election Commission of India.
Whether such amendments should be gone through by each state, or whether a general amendment of the anti-defection law of 1985 is to be made, incorporating municipal corporations, has to be seen in the light of practical possibilities. But, maybe, Odisha has made a first move and this has to be studied.