Herald: Time for some tough action

Time for some tough action

21 Oct 2018 05:41am IST

Report by
Pratik Parab

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21 Oct 2018 05:41am IST

Report by
Pratik Parab

The incidents of MLAs switching sides have brought to the fore the discussion about the political class circumventing the anti-defection law that was passed all those years ago that was put in place to stop this. Adv. Cleofato Almeida Coutinho and Adv. Ramakant Khalap present their viewpoint on this very sensitive subject to Pratik Parab

HERALD: In the light of four Congress MLAs switching sides after being elected on another ticket earlier, Is it the time to amend The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985 by barring those who switch sides from contesting again for a fixed period of time?

Adv. Cleofato Almeida Coutinho:There is certainly a need to stop resigning midway to defeat the mandate by creating a situation to hold re-election. It is a clear case of defeating the anti- defection law. I would recommend that the resigning candidate must be debarred for a period of years as the shift is always for money and power. Such candidates must also be debarred from holding any public office. There is need to amend the anti- defection law and frame rules permitting any electorate to move the authority. Further the power to decide must not be with the speaker.


HERALD: Should the cost of administrative cost elections be realised from the winning candidate from a constituency who has switched sides and that also be included in her/his Declaration and Expenses when he recontests again?

Adv. Cleofato: If law is changed to debar re-contest, the question of recovery does not arise.


HERALD: Has the time come to introduce Right to Recall so that any MLA who switches sides should be instead recalled back rather than allowed to recontest on another party symbol?

Adv. Cleofato: Right to recall is a difficult process and the state cannot be permitted to be on a diet of elections. Not advocating recall. It is a difficult process. State cannot be on a diet of elections all the times. Recall mean re-election and the state cannot be in a continuous elections mode.




HERALD: In the light of four Congress MLAs switching sides after being elected on another ticket earlier, Is it the time to amend The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985 by barring those who switch sides from contesting again for a fixed period of time?

Adv. Ramakant Khalap: There is a writ petition filed by the Congress against Mr. Vishwajeet Rane in the High Court at Goa. The Appeal against that is pending in the Supreme Court. In that one of the plea is that if a party gives a ticket to the individual he becomes a candidate of the original party and is expected to continue till the full term of the house. And if he resigns before the completion of the term for whatever reason he stands no chance to get back to the same house. The election of an MLA is coextensive with the term of the Assembly elected for 5 years if he resigns or voluntarily or gives up the party or incurs qualification our submission is such a person is not entitled to re contest. However now either the Supreme Court has to give opinion on this for 10th schedule can be amended. 


HERALD:  Should the cost of administrative cost elections be realised from the winning candidate from a constituency who has switched sides and that also be included in her/his Declaration and Expenses when he recontests again?

Khalap: That is a different story, however cost of the re- election can be calculated and anyone who causes a fresh election unless due to death or disqualification but if voluntarily someone gives up the seat the person should be penalised. This will recover the cost of election and also set a deterrent from shifting sides. 

HERALD: Has the time come to introduce Right to Recall so that any MLA who switches sides should be instead recalled back rather than allowed to recontest on another party symbol?

Khalap: There could be one more Reform today. There is a situation of first past the post in elections. If we observe today five candidates contest elections but one who gets the highest gets elected. But the sum total of the remaining candidates is usually more than 50% of the votes. So what could be done is a candidate to win the constituency should get more than 51% votes. Anyone who gets less than that can be eliminated and fresh elections can be held until the candidate attains 51% votes.
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