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Expert Explains: Why exceptions to the anti-defection law must go

Print edition : Aug 25, 2022 T+T-

Expert Explains: Why exceptions to the anti-defection law must go

Chief Minister Eknath Shinde with the rebel faction of Shiv Sena MLAs at Vidhan Bhavan, Mumbai on July 3.

Chief Minister Eknath Shinde with the rebel faction of Shiv Sena MLAs at Vidhan Bhavan, Mumbai on July 3. | Photo Credit: EMMANUAL YOGINI

In the light of the Maharashtra situation, the anti-defection law clearly needs strengthening.

With the election of the new Speaker and the securing of the confidence vote for the Eknath Shinde government, the Maharashtra situation seems to be settling down. The new government has secured a comfortable majority, which may enable it to rule the State till other political developments overtake it. The previous government too had a majority, but dissensions in the Shiv Sena ultimately brought it down.

There is another more familiar word for dissension, namely defection. What happened in Maharashtra is that large-scale defections from the ruling party resulted in the fall of the government and the formation of another government by the collusion of those who defected with the principal opposition party. It is precisely to prevent such destabilisation of government that the Tenth Schedule, popularly known as the anti-defection law, was enacted in the Constitution. The fact that defections have taken place on a large scale in many States despite this law has prompted questions on whether the law should be scrapped altogether.

Anti-defection law

Let me first briefly deal with the content of the anti-defection law. Its basic approach is that whoever leaves his or her party after being elected to a Legislative House on that party’s ticket, or votes against the direction (Whip) of his party in the House will be disqualified from being a member of the House. However, the law provides for an exception. A member of the legislature can get exemption from such disqualification if he claims that his original political party has merged with another party and he and others who constitute two-thirds of the legislators of his party in the House have agreed to such merger. If both these conditions are fulfilled, he and his colleagues get exemption from disqualification.

On the other hand, if he and his colleagues do not have two-thirds of the members with him although his party has merged, all of them become liable to be disqualified. Similarly, if the original political party does not merge, but two-thirds of the Members of the House come out of their party, as has happened in Maharashtra, they will be liable to be disqualified.

Maharashtra Chief Minister Eknath Shinde and Deputy Chief Minister Devendra Fadnavis.
Maharashtra Chief Minister Eknath Shinde and Deputy Chief Minister Devendra Fadnavis. | Photo Credit: EMMANUAL YOGINI

Paragraph 4 of the Schedule contains the exception. There appears to be a general perception among politicians that this paragraph has been enacted to facilitate defection. According to them, all that is required is to form a group of two-thirds of the legislators of a party and defect to another party, which is invariably the ruling party.

A recent judgment of the Goa Bench in the Bombay High Court ( Girish Chodankar vs Hon’ble Speaker, Legislative Assembly of Goa) legitimised this perception. It said that if two-thirds of the Members of a Legislative House merge with another party, it shall be deemed to be the merger of the original political party under Para 4. According to this decision, in the absence of a merger between two political parties, the merger of only the legislators with another party is a legitimate act under Paragraph 4 and, therefore, they shall be exempt from disqualification. This decision of the Bombay High Court is now under challenge in the Supreme Court, but since it has not been stayed by the Supreme Court, the decision of the High Court holds and is applicable to the Maharashtra Legislature.

The Maharashtra situation needs to be put in perspective to avoid confusion among the public. Two-thirds of the members of the Shiv Sena legislative party in the Maharashtra Assembly revolted and went ahead and formed a new government with the help of the party in opposition, namely the BJP. This was done without the approval of the party president or the highest decision-making body of the Shiv Sena.

Maharashtra Chief Minister Eknath Shinde with MLAs of his Shiv Sena faction. The Maharashtra situation needs to be put in perspective to avoid confusion among the public.
Maharashtra Chief Minister Eknath Shinde with MLAs of his Shiv Sena faction. The Maharashtra situation needs to be put in perspective to avoid confusion among the public. | Photo Credit: EMMANUAL YOGINI

In a political party, the party president is the ultimate authority who takes all important decisions. A legislature party is just a wing of the political party, and it has no power to take independent decisions on political issues such as ending an alliance or joining another alliance and so on. In this case, this vital decision was taken behind the back of the leadership of the political party by the legislative party leader. This is where the anti-defection law comes in. Under this law, if a Member of a Legislature voluntarily gives up membership of the party, he shall be disqualified from being a Member.

The term “voluntarily giving up the membership of the party” has not been defined in the Schedule. However, a number of cases decided by the Supreme Court have brought clarity to it. Ravi S. NaikandSanjay Bandekar vs Union of India (1994) and Jagjit Singh vs State of Haryana (2006) have clarified that the conduct of the member is decisive and it depends on the facts and circumstances of such cases. In Rajendra Singh Rana vs Swami Prasad Maurya (2007) the Supreme Court held that just one incident can prove that the member has voluntarily given up the membership of the party.

Thus, past judicial decisions favour the disqualification of the members of the legislative wing of the Shiv Sena on the grounds that they have voluntarily given up the membership of the party. As it happened, the leadership of the Shiv Sena filed petitions against 16 of them and not the whole group. Interestingly, the breakaway group has also filed disqualification petitions under the Tenth Schedule against the official Shiv Sena group led by Uddhav Thackeray.

Unenviable situation for Speakers

The Tenth Schedule designates the Speaker as the adjudicating authority in disqualification cases arising out of defection. It may be noted that the Speaker, while adjudicating defection cases, acts as a Tribunal and not as the Presiding Officer of the House. Under parliamentary traditions, the Speaker is an impartial umpire who does not have a party and is not obliged to protect the interests of the ruling party.

This tradition does not exist in India where the Speakers are always conscious of the fact that political loyalty comes first. But when they sit as a Tribunal, they are not under any obligation to favour anyone. Still, in many decisions, the level of impartiality and objectivity required in the exercise of this quasi-judicial function is not seen.

Ram Niwas Goel, Delhi Assembly Speaker and former Aam Aadmi Party MLA. His decision to disqualify five AAP MLAs under the anti-defection law in 2018 is a rare example of a Speaker’s objectivity and impartiality.
Ram Niwas Goel, Delhi Assembly Speaker and former Aam Aadmi Party MLA. His decision to disqualify five AAP MLAs under the anti-defection law in 2018 is a rare example of a Speaker’s objectivity and impartiality. | Photo Credit: SHIV KUMAR PUSHPAKAR

Amidst a plethora of decisions of Speakers in defection cases, there are a few decisions which stand out for objectivity, impartiality and reasonableness. These are the decisions of the Speaker of the Delhi Assembly, Ram Niwas Goel, in five cases of defection involving the MLAs of the Aam Aadmi Party in 2018. Otherwise, the general trend has been to take a decision in the interest of the ruling party. Thus, all the cases end up in courts, where they hibernate.

The Speaker of the Maharashtra Assembly is faced with an unenviable situation. There are disqualification petitions on his desk that he is constitutionally bound to adjudicate. There are cross petitions which have made the situation more complex. The Chief Minister’s group of legislators did not merge with any party and, therefore, they cannot claim exemption from disqualification under Paragraph 4 of the Tenth Schedule.

If the Speaker goes ahead and examines the petitions, he has to first determine the party to which these dissident MLAs belong for the purpose of applying the law. Under the explanation to Paragraph 2 of the Schedule, the party which had set them up as candidates in the election is the one to which they belong, which is the Shiv Sena led by Uddhav Thackeray. This would mean that for the purpose of adjudicating the cases under the Tenth Schedule, these dissident MLAs shall be deemed to be members of the Shiv Sena led by Uddhav Thackeray. On the other hand, to entertain petitions from the Shinde group will create legal complications.

Rahul Narvekar, newly elected Speaker of the Maharashtra Assembly, is seen with Eknath Shinde and Devendra Fadnavis on July 3.
Rahul Narvekar, newly elected Speaker of the Maharashtra Assembly, is seen with Eknath Shinde and Devendra Fadnavis on July 3. | Photo Credit: EMMANUAL YOGINI

The appointment of a leader, a Chief Whip and so on in a legislative party is always done with the approval of the president of that party who is the final authority in all such matters. Further, the Speaker has no specific role in recognising these office-bearers. They are selected by the respective parties and the list is submitted to the Speaker for his information. The Speaker is not empowered either under the rules of the House or under any law to recognise them. The only functionary who is officially recognised by the Speaker is the Leader of the Opposition.

That being so, the acceptance of the Legislative Party Leader and Chief Whip of one faction and rejecting the recognition of the same office-bearers of the other faction are not sanctioned by any law or known parliamentary procedure. A decision on these matters will unnecessarily involve the Speaker in the disputes of political parties.

Paragraph 4 of the Tenth Schedule as interpreted by the Bombay High Court provides the only option to the Shinde group of MLAs, namely, to merge with another party. They can take the name of that party or form another party along with the party they merged with and take on a new name.To claim that they are the real Shiv Sena is not something that is permitted under the Tenth Schedule. It is not within the power of the Speaker to recognise that group as the original Shiv Sena, because the Tenth Schedule does not permit it.

Maharashtra Governor Bhagat Singh Koshyari. The Governor’s action in not inviting the Leader of the Opposition to form the government has needlessly complicated the situation.
Maharashtra Governor Bhagat Singh Koshyari. The Governor’s action in not inviting the Leader of the Opposition to form the government has needlessly complicated the situation. | Photo Credit: The Hindu Photo Archives

The Governor’s action in not inviting the Leader of the Opposition to form the government has needlessly complicated the situation. Parliamentary convention is to invite the Leader of the Opposition to form the government upon the fall of the incumbent government. It is unprecedented to invite the leader of a breakaway group of MLAs, which did not have the backing of the political party to which it belongs, to form the government. The subsequent formation of the government, the Speaker’s election, and the successful floor test do not by themselves sanctify this unusual and inexplicable action of the Governor. It is a disturbing departure from the universally acknowledged Parliamentary conventions.

It is not easy to predict how things will play out in Maharashtra. There are cases in the Supreme Court, one of which has become infructuous as the Speaker has assumed charge, and the disqualification cases have been transferred to him.The MLAs against whom disqualification cases were filed, and who have been given time till July 12 by the Supreme Court to file their replies, need to do so now. The Speaker is required to adjudicate these cases within three months.

Former Maharashtra Chief Minister and Shiv Sena leader Uddhav Thackeray. The battleground is likely to shift to the Nirvachan Sadan where it will be decided which faction is the real Shiv Sena.
Former Maharashtra Chief Minister and Shiv Sena leader Uddhav Thackeray. The battleground is likely to shift to the Nirvachan Sadan where it will be decided which faction is the real Shiv Sena. | Photo Credit: By Special Arrangement

In the meantime, the battleground is likely to shift to the Nirvachan Sadan where it will be decided which faction is the real Shiv Sena. Whichever faction is declared the real Shiv Sena, the decision is likely to churn up Maharashtra’s politics. Incidentally, under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968, the Election Commission can also declare that neither of these factions is the real Shiv Sena.

The anti-defection law needs to be revisited, not to scrap it but to strengthen it. There is not much sense in the demand that this law be scrapped. It is true that legislators have tried to circumvent the law. That is all the more reason to plug the loopholes in this law. The provision relating to split was deleted because it was being misused. Similarly, the merger provision is being misused now. In fact, there is no need to have a provision like this at all in this law.

The basic approach of the anti-defection law is that a person elected on a political party’s symbol should be disqualified from being a member if he leaves that party after his election. There need not be any exceptions to this in the law.

The ideal situation is that when a person leaves his party he should also quit the House on his own. Since that does not happen in most of the cases, he should be disqualified through an adjudicatory process.

Similarly, the law itself should contain the time frame within which the Speaker should determine the cases. In a majority of cases, Speakers have delayed taking decisions till the end of the term of the Assembly. This is a classic example of the political class trying to defeat this law to serve its political interest. That is the root of the problem and, therefore, what is needed is a law without exceptions that can take care of defectors.

P.D.T. Achary is a former Secretary General of the Lok Sabha.