Do not weaken the anti-defection law

The moral content of democracy cannot be eroded and India expects better compliance of the law by its lawmakers

July 01, 2022 12:16 am | Updated 01:27 pm IST

Eknath Shinde and Devendra Fadnavis address a press conference in Mumbai on June 30, 2022.

Eknath Shinde and Devendra Fadnavis address a press conference in Mumbai on June 30, 2022. | Photo Credit: PTI

The political developments in Maharashtra throw up troubling questions about how the political class is emasculating the anti-defection law which was described by the Supreme Court of India as “constitutional correctives against a legislatively perceived political evil of unprincipled defections induced by the lure of office and monitory inducements”. Almost with the farsight of a clairvoyant, the Supreme Court drew the attention of citizens to the very danger of subversion of democracy by unprincipled defection.

The ongoing developments in Maharashtra have once again brought before the country the reality of what the Supreme Court also described as the political evil of unprincipled defection. But the greatest irony is that the order of the Supreme Court, on June 27, on petitions from the dissidents in the Shiv Sena, gives undue advantage to the dissident legislators. The Court has granted them a longer time to submit replies than the rules mandate. This order is going to set in motion certain political developments which will resurrect in a big way what the Supreme Court characterised as political evil; it was to prevent this that the anti-defection law was enacted in 1985.

Important thrust areas

To put the issue in perspective, let us quickly run through the thrust areas of this law. It was enacted as the Tenth Schedule of the Constitution of India, in 1985, under Rajiv Gandhi’s premiership. It was actually the culmination of long years of debate, deliberations, disagreements, formulations and reformulations, with finally a consensus. The law as it was enacted provided for the disqualification of a legislator belonging to a political party if he voluntarily gave up his membership of his party or if he defied the whip of his party by voting contrary to its directions in the legislative house. Initially, there were two exceptions provided in the schedule which would exempt a legislator from disqualification. The first exception was a split in their original political party resulting in the formation of a group of legislators. If the group consisted of one third of such legislators of that party, they were exempted from disqualification. This exception was deleted from the schedule through a Constitution Amendment Act of 2003 because of frequent misuse of this provision.

The second exception was ‘merger’ which can be invoked when the original political party of a legislator merges with another party and not less than two thirds of its legislators agree to such a merger. So, if a legislator shows that his original party has merged with another party and he and his colleagues who constitute two thirds of the legislators of that party have agreed to the merger, then he and his colleagues will be exempted from disqualification.

Interpretation of ‘merger’

It is this exception contained in paragraph four of the schedule which has been taken recourse to by a large number of legislators across States and even in Parliament to defect to the ruling party. These legislators interpreted for themselves the term ‘merger’ to mean the merger of two thirds of legislators. They convinced themselves that the merger of their original party is not necessary, mainly because it is not a possibility. Politics being the art of the possible, they believed that what is not ordinarily possible can be conveniently ignored.

Now, this story is being repeated in Maharashtra. But there is a little difference here. It appears that the dissidents of Shiv Sena believed that if they get the two third number they can form a separate group and topple the government and then form a government with the help of the Bharatiya Janata Party. Although the Maharashtra Chief Minister has resigned and the direction of the Governor to hold a floor test has become infructuous, the issue arising out of the anti-defection petitions is still live and needs to be addressed by the next Speaker.

The law imposes the condition of merger of the original political party (namely, the Shiv Sena) which is not likely to happen now or in the future. If there is no merger of the original party, then these dissidents cannot claim any exception from disqualification no matter whether they are two thirds or three fourths. However, a recent judgment of the Goa Bench of the Bombay High Court (Girish Chodankar vs The Speaker, Goa State Legislative) that held that the merger of two thirds of Members of the Legislative Assembly is deemed to be the merger of the original party seems to have given them a ray of hope. This judgment, unfortunately, does not reflect the correct law and needlessly complicates it. Nevertheless, this judgment too emphasises the need for merger with another party. So, the legal position is if the dissidents do not merge with another party they will be disqualified now or later. They cannot operate as a separate group in the Assembly because the law does not permit them to do so.

On disqualification

Now, disqualification petitions have been filed by the Shiv Sena against 16 of the dissidents under paragraph 2(1)(a) on the ground that they have voluntarily given up the membership of the party. The question of whether they have voluntarily given up the membership of the party is decided on the basis of the conduct of a member. In Ravi S. Naik vs Union of India (1994), the Supreme Court had said “an inference can be drawn from the conduct of a member that he has voluntarily given up the membership of the party to which he belongs”. Wilful non-participation in a crucial meeting of a party whose government is facing a serious crisis because of them, may, in the present circumstances, offer the ground for disqualification.

Point of intervention

However, the notice of no-confidence against the Deputy Speaker has added another piece to the jigsaw puzzle. The intervention by the Supreme Court too has thrown up some crucial questions regarding the operation of the anti-defection law.

Editorial | The essence of time: On courts and the anti-defection law

The first question is whether the Court can intervene at a stage prior to the decision by the Deputy Speaker. A Constitution Bench of the Supreme Court had held in Kihoto Hollohan (1993) that judicial review cannot be available prior to the making of a decision by the Speaker nor at an interlocutory stage of the proceeding. Giving longer time to the dissidents to submit replies is contrary to this decision. The mandatory period for replying to the charge is seven days under the rule. The court gave them 15 days. It is an intervention at the interlocutory stage which was barred by the Constitution Bench.

Another question of considerable importance is whether the Deputy Speaker can decide the disqualification petition when a no-confidence motion is pending against him. The Supreme Court had held in Nabam Rebia (2016) that the Speaker shall not decide the disqualification cases till the no-confidence motion against him is disposed of. In the Maharashtra case, the Deputy Speaker who had assumed the duties of the Speaker because of the vacancy in the office of the Speaker, did not admit the notice of no-confidence because he had doubts about the authenticity of the notice. The House rules clearly say that the notice of no-confidence against the Speaker/Deputy Speaker needs to be admitted in the first place which is done only by the Speaker. Rules do not recognise any other authority for admitting a notice. But it is the House which takes the final decision on the motion. If the notice of no-confidence does not contain specific charges, it can be disallowed by the Speaker. Therefore, in this case, there is no occasion to say that the Speaker cannot be a judge in his own cause. Disallowing a notice does not prevent Members from giving another notice complying with the requirements of the rule. Further, the notice can be given only if the House is summoned. When the notice was given, the Assembly was not convened. So, the notice against the Deputy Speaker can have no validity under the rules. Therefore, it cannot be said that the notice is pending against the Deputy Speaker.

An observation, its spirit

The anti-defection law is facing many challenges. Since it deals with the political class, the challenges are grave. The law, though not perfect, is a serious attempt to strengthen the moral content of democracy. Piloting the Bill on the Tenth Schedule, then Prime Minister Rajiv Gandhi, said, “There are lots of areas in this Bill which are grey. We are covering new grounds… it is better for us to tread cautiously than to make serious errors and repent later. There will be shortcomings in this Bill but as we see and identify those shortcomings we will try to overcome them.”

Watch | Explained: What is Anti-defection Law?

Parliament needs to recapture the spirit of this observation. The anti-defection law needs to be strengthened and not weakened. The nation expects better compliance of the law by the lawmakers.

P.D.T. Achary is former Secretary General, Lok Sabha

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