TOPIC- THE ANTI-DEFECTION LAW AND THE SUPREME COURT JUDGMENT ON MAHARASHTRA POLITICAL CRISIS

THE CONTEXT: The Supreme Court decision on political crises in Maharashtra which started in 2022 needs to be understood comprehensively. Even though the court has answered a few of the questions in the context of the Anti-Defection Law but some are still left in a lurch. This write-up explains the political crises that unfolded in Maharashtra and what the Supreme Court has said and analyses the judgment in the context of the future of the Anti-Defection law.

ABOUT THE ANTI – DEFECTION LAW

• The Tenth Schedule – popularly known as the Anti-Defection Act – was included in the Constitution via the 52nd Amendment Act, of 1985. This was done to bring stability to governments by discouraging legislators from changing parties.
• It is interesting to note that the law does not penalize political parties for encouraging or accepting defecting legislators however it punishes individual Members of Parliament (MPs)/MLAs for defection.
• The decisions on questions as to disqualification on the ground of defection are referred to the Speaker/Chairman of the House, which is subject to ‘Judicial review’.
• However, the law does not provide a timeframe within which the presiding officer has to decide a defection case.
• The 91st Constitutional Amendment Act, 2003, changed the initially envisaged 1/3rd to now at least two-thirds of the members of a party must be in favour of a “merger” for it to have validity in the eyes of the law.

THE GROUNDS FOR DISQUALIFICATION UNDER THE ANTI-DEFECTION LAW

The Tenth Schedule of the Constitution deals with the grounds for disqualification of legislators on account of defection. These are:

• If an elected member voluntarily gives up his membership in a political party.
• If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorized to do so, without obtaining prior permission.
• As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorized person within 15 days of such an incident.
• If any independently elected member joins any political party.
• If any nominated member joins any political party after the expiry of six months.

Exceptions: Paragraph 4 of the Tenth Schedule says,
4. Disqualification on the ground of defection is not to apply in case of a merger—
(1) A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other
members of his original political party—
(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or
(b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party
for the purposes of this subparagraph.
(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two thirds of the members of the legislature party concerned have agreed to such merger.

THE POLITICAL CRISIS IN MAHARASHTRA

• The present crisis in Maharashtra where the MLAs have its root in the 2019 formation of the coalition government in the state (Maha Vikas Aghadi).
• In 2022, the MLAs from the Shiv Sena distanced themselves from the coalition and showed faith in a new leader (The Shiv Sena had 55 members in the Maharashtra Assembly, Eknath Shinde, who lead the rebel group, claimed the support of 40 MLAs with him)
• Mr Thackeray urged the Deputy Speaker to initiate disqualification proceedings against the rebel Shiv Sena MLAs, including Mr Eknath Shinde.
• Interestingly, two independent MLAs moved a ‘no confidence motion against the Deputy Speaker and sought his removal from his position. Deputy Speaker rejected the motion and went ahead with the disqualification proceedings against the rebel MLAs. The Shinde faction was given two days to respond to the disqualification notice.
• The Shinde faction challenged the disqualification notice, stating that the deputy speaker had no authority anymore and that the 2 day time to respond was lesser than the mandated 7 days. This gave the rebel Shiv Sena MLAs 12 days of ‘breathing time’ to respond to the disqualification notice.
• The Shinde faction now approached the Governor to conduct the floor test in the Maharashtra Legislative Assembly which forced the Thackeray faction to approach the Court again with the
  argument that MLAs who were themselves facing disqualification had no authority to call a noconfidence motion. The Supreme Court, however, refused to stay the floor test.
• Refusing to be subject to the floor test, Mr Thackery resigned as Chief Minister, making way for Mr Shinde to be the Chief Minister of Maharashtra.
• Later the Thackery faction approached the Supreme Court challenging the decision of Speaker and the Governor and the Supreme Court referred the matter to the Constitution bench.

THE CONTENTIONS RAISED BY THE THACKERAY FACTION

• The acts of members of a political party within the Legislative Assembly who separate themselves from the party should incur disqualification.
• The Governor should not have administered the oath of office to Eknath Shinde while the proceedings before the Supreme Court were pending.
• The Thackeray faction also accused the Speaker of bias saying that the notices for disqualification were dealt with in a discriminatory manner.

THE SUPREME COURT JUDGMENT

The Supreme Court in Subhash Desai VS Principal Secretary, Governor of Maharashtra & Ors. (Maharashtra political crises case) gave the judgment in May 2023:

• To decide whether a notice for removal of a Speaker would restrict the powers of the Speaker to issue disqualification notices to MLAs the court has referred its Nabam Rebia (2016) judgment to a larger Bench.
• The Speaker must decide on disqualification petitions within a reasonable period and the Supreme Court cannot ordinarily adjudicate petitions for disqualification under the Tenth Schedule of the Constitution of India in the first instance.
• An MLA has the right to participate in the proceedings of the House until the date when the Speaker decides on the disqualification petition.
• The political party and not the legislature party appoints the Whip and the Leader of the party in the House.
• The Speaker and the ECI are empowered to concurrently adjudicate on the petitions before them under the Tenth Schedule and under Paragraph 15 of the Symbols Order respectively and that the proceedings before one constitutional authority cannot be halted in anticipation of the decision of another constitutional authority.
• The defence of ‘split’ is no longer available to members facing disqualification proceedings (Paragraph 3 of the Tenth Schedule is deleted) and both the factions can continue as members of the House if the requirements of Paragraph 4(1) of the Tenth Schedule are satisfied.
• The Speaker would prima facie determine who the political party is for the purpose of adjudicating disqualification petitions.
• The court also said that the political crisis in Maharashtra was a result of party differences within the Shiv Sena and that the floor test cannot be used as a medium to resolve internal party disputes or intra-party disputes.
• Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed under the party constitution (submitted to the Election Commission of India); or through any other method that the political party may opt for.
• Speaking on the actions of the Governor the court said that the gubernatorial conduct in directing the Chief Minister to floor test was not actuated by objective material and hence the exercise of discretion by the Governor in this case was not in accordance with law.
• However, inviting Eknath Shinde to form the government as the post of the Chief Minister of Maharashtra fell vacant after Uddhav Thackeray’s resignation was justified.

THE IMPACT OF THE JUDGMENT ON DEFECTION

• Split is not an escape route for avoiding defection; the only exception is merger according to the provisions provided in the tenth Schedule.
• The Anti-defection law was enacted to bring control over the political parties and the Supreme Court judgment reinforces this idea by making a distinction between a political party and a legislature party. This would certainly limit the role of the legislature party.
• The judgment has accorded the power to decide on the disqualification upon the Speaker even if a motion of resolution for his own removal from the Office of Speaker is pending. This goes against the previous judgment of the Supreme Court in the Nabam Rebia (2016) case. For the time being the Court directed the Nabam Rebia’s case to be reconsidered by a 7-judge bench as an essential question of law remains to be settled.
• Although the Speaker and the ECI are two independent constitutional authorities, in the case of defection the decision of one authority will have implications on the decisions of the other. As the beginning point is the question of disqualification under defection, the proceedings under the ECI should wait until the question is addressed by the Speaker. Otherwise, one authority will use the decision of the other to justify its own decision and in the process, justice might become casualty.

ISSUES WITH THE JUDGMENT

• The Supreme Court has emboldened the role of the Speaker in deciding the cases of defection even though the most glaring loophole in the anti-defection law is the role of the Speaker itself, as some Speakers do play a partisan role, given their party membership.
• The judgement does not explicitly declare the present government formed by Mr Shinde either as unconstitutional or contrary to the norms of constitutional morality, even though the court expressed its displeasure on the role played by the Speaker and the Governor. This is baffling as this may further provide an incentive to defect in the future.
• The judgment has not provided a time frame for the Speaker to decide upon the disqualification question. The court should have reiterated the observation made in Keisham Meghachandra Singh vs the Hon’ble Speaker Manipur Legislative Assembly & Ors. (2020) case wherein the court held that unless there are any exceptional circumstances, disqualification petitions under the Tenth Schedule should be decided by Speakers within three months.

THE ANALYSIS OF THE SUPREME COURT JUDGMENT

There are conflicting interpretations of Kihoto Hollohan and Nabam Rebia judgment regarding the power of the Speaker to decide a disqualification petition. Because of this issue, the matter has been referred to a larger bench, which can provide an authoritative pronouncement on the issue. The Court also held that the Maharashtra Governor did not act in accordance with the law in calling for a floor test. The court further held that the Constitution does not empower the Governor to enter the political arena and play a role either in inter-party disputes or in intra-party disputes. This is a critical proposition that denunciates the active role that Governors are increasingly playing in the formation of state governments. The court also called out the illegal actions of the Speaker which must persuade the Speaker to act impartially and independently within a reasonable time frame to decide on the question of disqualification. However, remitting the matter back to the same speaker whose actions the court termed illegal will be similar to placing too much faith in the impartiality of the Speaker. Also, despite holding that the government formation was illegal the court failed to provide complete justice as it refused to reinstate a democratically elected government by taking shelter under the superficial ground of resignation by the Chief Minister.

THE WAY FORWARD:

• The Speaker should observe ethical conduct and give decisions within a reasonable period as advised by the Supreme Court.
• Political parties shall also have internal democracy to listen and act on different opinions emerging from within. This might restrict the defecting tendencies among the elected representatives and also help in the overall strengthening of the parliamentary democracy in the country.
• The Law Commission in 1999 and the National Commission to Review the Working of the Constitution (NCRWC) in 2002 recommended deleting the clause related to the merger (Paragraph 4, Exception to Disqualification). Parliament should reconsider the debate and decide on the recommendations.
• The Supreme Court needs to maintain consistency in deciding matters over the role and responsibilities of the Speaker and Governor.
• People themselves shall be made aware and educated about their role in the parliamentary democracy and also with the issues of defection and that their franchise shall not be misused by the elected representatives.
• The Anti-Defection Law has failed to curb defections in recent years and lacks any deterrence effect on legislators. The law shall be reformed/amended to address the pertaining issues.

THE CONCLUSION

As defections continue unabated and Speakers refrain from acting on these developments based on their political loyalties, there is a strong case to reform the anti-defection law. The judgment assumes significance for its candid reminder to both the Constitutional authorities; Speaker of the House and the Governor, to live up to the constitutionally generated legitimate expectations held by the people of the Republic of India. It is also imperative for the political leaders and the legislatures that the four walls of the legislature should be protected from extra-parliamentary influences and not be seen as collaborators in flouting the constitutional provisions.

Mains Practice Questions:

1. Anti-defection law was introduced as a panacea for the menace of floor-crossing and toppling of elected regimes, however, the recent events raise questions over its efficacy. Critically discuss.
2. Due to the Anti-Defection law, the idea of accountability has been distorted by making legislators accountable to the political party. Comment.

ADDITIONAL INFORMATION

VARIOUS INCIDENTS RELATED TO DEFECTION IN INDIAN POLITY

We know that the anti-defection law does not apply if the number of MLAs who leave a political party constitutes two-thirds of the party’s strength in the legislature. These MLAs can merge with another party or become a separate group in the legislature. For example,

• In 2021 in Meghalaya, 12 of 17 Congress MLAs joined the All India Trinamool Congress. the Speaker recognised as a ‘merger’ the crossover of 12 Congress MLAs out of a total of 17 to the Trinamool Congress and refused to disqualify them.
• In 2019 Rajasthan , all six MLAs of the Bahujan Samaj Party in Rajasthan joined the Congress. The same year, four out of six Telgu Desam Rajya Sabha MPs joined the BJP. In all such cases, the MPs/MLAs were not disqualified.

RESIGNATION AND ANTI-DEFECTION LAW

• In Karnataka, the 2018 elections threw up a hung assembly. After the Bharatiya Janata Party failed to prove its majority after BS Yediyurappa took an oath, the Congress and the Janata Dal-Secular formed the government under the leadership of HD Kumaraswamy. But a year later, the resignations by Congress and JDS MLAs reduced the government to a minority and the government later fell. The rebel MLAs were later elected on a BJP ticket in the by-elections.
• Again in 2018, Congress won the Madhya Pradesh elections and formed a government under Kamal Nath. Less than a year later, 23 Congress MLAs including six ministers owing allegiance to Jyotiraditya Scindia resigned. The MLAs later joined the BJP government after winning by-elections.

The resignation is the way to circumvent the Anti-defection law and attract punishments thereby prescribed. However, some also contend that if the person is no longer satisfied by the ideologies or the policies of the government then the only way is to resign. It is hard to ascertain whether the resignations are voluntary or under coercion.

THE ISSUES WITH ANTI-DEFECTION LAW

UNDERMINING REPRESENTATIVE & PARLIAMENTARY DEMOCRACY

• After enactment of the Anti-defection law, the MP or MLA has to follow the party’s direction blindly and has no freedom to vote in their judgment.
• Due to the Anti-Defection law, the chain of accountability has been broken by making legislators accountable primarily to the political party.

AMBIGUITY OVER MERGER CLAUSE

• The confusion is about the use of the terms ‘Political Party’ and ‘Legislature Party’. It is not clear whether political parties should merge amongst themselves before the merger of elected members (Legislature Party) of two distinct parties. The merger envisaged in Paragraph 4 of the Tenth Schedule is a two-step process. Under this, one political party first merges with another, and then the legislators accept the merger.
• However, the second subparagraph (of Paragraph 4) says that a party shall be “deemed” to have merged with another party if not less than 2/3rd of the members of the legislature party concerned have agreed to such merger.
• The ambiguity is whether the merger of the Legislature Party would be deemed to be the merger of the Political party as well. Legal experts from the Vidhi Center of Legal Policy argue that the clause seems to be creating a “legal fiction” so as to indicate that a merger of 2/3rd 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.

SUBVERSION OF ELECTORAL MANDATES

• Defection is the subversion of electoral mandates by legislators who get elected on the ticket of one party but then find it convenient to shift to another, due to the lure of ministerial berths or financial gains.

AFFECTS THE NORMAL FUNCTIONING OF THE GOVERNMENT

• The infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous defections by the legislators in the 1960s.
• The defection leads to instability in the government and affects the functioning of the administration.

ALLOWS ONLY WHOLESALE DEFECTION

• It allows wholesale defection, but retail defection is not allowed. Amendments are required to plug the loopholes.
• He raised concern that if a politician is leaving a party, s/he may do so, but they should not be given a post in the new party.

CONTROVERSIAL ROLE OF SPEAKER

• There is no clarity in the law about the timeframe for the action of the House Chairperson or Speaker in the anti-defection cases.
• Some cases take six months and some even three years. There are cases that are disposed of after the term is over.
• Being members of political parties, some Speakers do play a partisan role.

FREEDOM OF SPEECH OF LEGISLATORS

• One of the conditions for disqualification is the violation of the whip issued by the Political Party to vote in a particular manner. Critics argue that this greatly limits the ability of a member to exercise her free opinion on the floor of the House on certain proposed legislation.

PROMOTE HORSE-TRADING

• Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.

VIEWS OF VARIOUS COMMITTEES ON ANTI-DEFECTION LAW

DINESH GOSWAMI COMMITTEE ON ELECTORAL REFORMS (1990)

• Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence. The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.

LAW COMMISSION (170TH REPORT, 1999)

• Provisions which exempt splits and mergers from disqualification to be deleted.
• Pre-poll electoral fronts should be treated as political parties under the antidefection law.
• Political parties should limit the issuance of whips to instances only when the government is in danger.

ELECTION COMMISSION

• Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.

CONSTITUTION REVIEW COMMISSION – NCRWC (2002)

• Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term.
• The vote cast by a defector to topple a government should be treated as invalid.
• Recommendations:

On Presiding Officer: Various expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.

Similar to Office of Profit: This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries a remuneration, and has not been excluded in a list made by the legislature).

JUDICIAL PRECEDENTS

1. KIHOTO HOLLOHAN vs ZACHILLHU (1992): In the judgment, the Supreme Court clarified that the 10th schedule is constitutionally valid. It neither impinges upon the freedom of speech and expression nor subverts the democratic rights of elected members. It also upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs. However, it also held that the Presiding Officer’s decisions of disqualification shall be open to judicial review. The Supreme Court also held that judicial review cannot be available prior to the making of the decision by the Speaker not at the interlocutory stage of the proceedings.
2. RAVI S NAIK vs UNION OF INDIA (1994): The Supreme Court had said that “ 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.
3. NABAM REBIA vs DEPUTY SPEAKER (2016): The court had ruled that it would be “constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule while a motion of resolution for his own removal from Office of Speaker is pending”. (NOW REFERRED TO LARGER CONSTITUTION BENCH)
4. GISIRSH CHANDONKAR vs THE SPEAKER, GOA (2011): The Bombay High Court held that the merger of 2/3rd of members of the legislative assembly is deemed to be the merger of the original party. (subjudice in Supreme Court).
5. Keisham Meghachandra Singh case (2020): The Supreme Court in Keisham Meghachandra Singh vs. the Hon’ble Speaker Manipur Legislative Assembly & Ors. (2020) case made a significant suggestion regarding disqualification powers of the Speaker. The Court was adjudicating upon the matter relating to the disqualification of Members of the Legislative Assembly (MLAs) in the Manipur Legislative Assembly under the Tenth Schedule. The Court recommended the Parliament to amend the Constitution regarding the role of the Speaker as a quasi-judicial authority while dealing with disqualification petitions under the anti-defection law (when such a Speaker continues to belong to a particular political party either de jure or de facto). The Court suggested that an independent tribunal can be appointed which will substitute the Speaker of the Lok Sabha and Legislative Assemblies to deal with matters of disqualifications under the Tenth Schedule. The Tribunal will be headed by a retired Supreme Court judge or a retired Chief Justice of a High Court. The Court also suggested that some other outside independent mechanism can adjudicate on such matters. This will ensure that such disputes are decided both swiftly and impartially.

ANTI-DEFECTION LAWS IN OTHER PARTS OF THE WORLD

EUROPE

• There are strict laws in all the countries of Europe that if a member changes party, then their membership of Parliament is terminated. It is believed that the person has violated the laws of the country.

IMMEDIATE RESIGNATION IN BANGLADESH

• In Bangladesh, Kenya, South Africa and many other countries, no public representative can do defection. The law doesn’t even allow it. Article 70 of the Bangladesh Constitution states that if a public representative votes against his party in the House or changes the party, he must resign from membership.

SEAT HAS TO BE VACATED IN KENYA

• In Kenya, Section 40 of their Constitution states that if a member leaves his party, he must vacate his seat. Speaker will decide this and the member can appeal against it in the High Court.

IMPOSSIBLE TO CHANGE PARTY IN SINGAPORE

• According to Article 46 of the Constitution of Singapore, if a member leaves the party or is removed by the party, he must also vacate his seat. Parliament will decide the disqualification of any such member.

MEMBERSHIP OF THE HOUSE ENDS IN SOUTH AFRICA

• This is explained in Section 47 of the Constitution of South Africa. According to it, if a member leaves his party, then his membership will automatically end.

FLEXIBLE RULES IN UK AND CANADA

• In Britain and Canada, the rules are flexible, but there is generally no opportunistic defection to form or topple governments. There the defection is called crossing the line. In Britain and Canada, the ruling party and the opposition sit separately. There, if a member crosses his floor and sits on the other side, then it is considered as a change of party.

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