The anti-defection law — political facts, legal fiction
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The crisis in Maharashtra and even earlier instances are grim reminders of what the Tenth Schedule can and cannot do

June 30, 2022 12:08 am | Updated 02:11 pm IST

Reactions to the crisis in Maharashtra, in Assam

Reactions to the crisis in Maharashtra, in Assam | Photo Credit: PTI

In the din of India’s electoral politics, floor crossing by legislators rarely goes out of public discourse. The practice of legislators from changing political parties during their term continues unabated in Indian legislatures despite the Tenth Schedule having been inserted into the Constitution in 1985. Commonly known as the ‘anti-defection law’, it was meant to arrest the practice of legislators from changing political affiliations during their term in office. The political crisis in Maharashtra, and many others before it, are grim reminders of what the Tenth Schedule can and cannot do.

Law on defections, ‘mergers’

Instances of floor crossing have long gone unchecked and unpunished. In part, this can be attributed to the exemption given to mergers between political parties which facilitate bulk defections. In 2019, MLAs in the Goa Legislative Assembly from the Indian National Congress (INC) and the Maharashtrawadi Gomantak Party (MGP), crossed over to the Bharatiya Janata Party (BJP). The Speaker of the Assembly as well as the Goa Bench of the Bombay High Court dismissed the pleas seeking disqualification of these MLAs. Both these authorities held that because the MLAs formed two-thirds of their respective legislature parties, disqualification under the Tenth Schedule was not possible. In other words, there was a “deemed merger” of the INC and the MGP with the BJP.

The second paragraph of the Tenth Schedule allows for disqualification of an elected member of a House if such member belonging to any political party has voluntarily given up membership of their party, or if they vote in the House against such party’s whip. Paragraph 4 creates an exception for mergers between political parties by introducing three crucial concepts — that of the “original political party”, the “legislature party”, and “deemed merger”. A “legislature party” means the group consisting of all elected members of a House for the time being belonging to one political party, whereas an “original political party” means the political party to which a member belongs (this can refer to the party generally, outside of the House). Interestingly, Paragraph 4 does not clarify whether the original political party refers to the party at the national level or the regional level, despite the fact that that is how the Election Commission of India recognises political parties.

How does Paragraph 4 then approach mergers? Paragraph 4 is spread across two sub-paragraphs, a conjoint reading of which suggests that a merger can take place only when an original party merges with another political party, and at least two-thirds of the members of the legislature party have agreed to this merger. It is only when these two conditions are satisfied that a group of elected members can claim exemption from disqualification on grounds of merger.

The reality

Paragraph 4 , however, is drafted in such a convoluted way that it renders itself open to multiple interpretations. The second sub-paragraph (of Paragraph 4) says that a party shall be “deemed” to have merged with another party if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger. Given that in most cases there is no factual merger of original political parties at the national (or even regional) level, Paragraph 4 seems to be creating a “legal fiction” so as to indicate that a merger of two-third members of a legislature party can be deemed to be a merger of political parties, even if there is no actual merger of the original political party with another party. At least that is how High Courts in India are interpreting the merger exception.

In statutory interpretation, “deemed” has an established understanding. The word “deemed” may be used in a law to create a legal fiction, and give an artificial construction to a word or a phrase used in a statute. In other cases, it may be used to include what is obvious or what is uncertain. In either of these cases, the intention of the legislature in creating a deeming provision is paramount.

What could Parliament’s intention have been in creating a legal fiction under Paragraph 4? The merger exception was created to save instances of the principled coming together of political groups from disqualification under the anti-defection law, and to strike a compromise between the right of dissent and party discipline. In the absence of mergers of original political parties, the deeming fiction could, presumably, be used as a means to allow mergers of legislature parties. However, reading Paragraph 4 in this manner would empower legislature parties to solely merge with another party, and thus, practically ease defection. Defection gets easier in smaller legislative assemblies, where even a sole member can account for two-thirds of the legislature party’s strength to cross the floor without attracting disqualification.

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On the other hand, what happens if both sub-paragraphs of Paragraph 4 are read conjunctively? For a valid merger then, an original political party has to first merge with another political party, and then two-thirds of the legislature party must support that merger. Practically speaking though, this would yield potentially absurd results. Given the politics of current times, stark differences in parties’ respective ideologies, and deep-seated historical rivalries, it is unimaginable how a merger between major national or regional parties would materialise.

Neither of these two interpretations complement the ‘mischief’ that the Tenth Schedule was expected to remedy — that of curbing unprincipled defections which endanger the foundations of our democracy. Presently, while individual Members of Legislative Assemblies remain vulnerable to disqualification for crossing the floor, group defections remain exempt. The criticisms levelled against the exemption given to splits in political parties – that it facilitated defection by groups – applies equally to mergers.

Revisit, if not delete

In a situation where either reading of Paragraph 4 in its current form yields undesirable results, its deletion from the Tenth Schedule is a possible way forward. This thought is hardly novel, for the Law Commission in 1999 and the National Commission to Review the Working of the Constitution (NCRWC) in 2002 made similar recommendations. Till that happens, an academic revisiting of the Tenth Schedule by the Supreme Court, so as to guide future use of the anti-defection law, is timely and should happen soon. That would do a world of good for democracy in India.

Mayuri Gupta is the Milon K. Banerji Fellow at the Vidhi Centre for Legal Policy and works with Charkha, Vidhi’s Constitutional Law Centre. Ritwika Sharma is a Senior Resident Fellow at Vidhi and leads Charkha. The views expressed are personal

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