Don’t dilute the anti-defection law

Political developments in Maharashtra raise disturbing questions about how the political class is weakening the anti-defection law, which the Supreme Court of India has called “constitutional reform against a legislatively perceived political evil of non-principle defection motivated by the greed of office”. “As described. monetary inducement”. With an almost clairvoyant vision, the Supreme Court drew the attention of citizens to the threat of destruction of democracy by non-principled defections.

The ongoing developments in Maharashtra have once again brought to the fore the reality of what the Supreme Court has also described as the political evil of non-principle defection. But the biggest irony is that the June 27 order of the Supreme Court on the petitions of dissidents in Shiv Sena gives undue advantage to the disgruntled MLAs. The Court has given them more time to file their reply than mandated by the rules. The order is going to trigger some political developments that will revive in a big way what the Supreme Court has described as a political evil; To prevent this, the Anti-Defection Act was enacted in 1985.

critical thrust area

To put this issue in perspective, let us take a quick look at the key areas of this law. It was enacted as the Tenth Schedule of the Constitution of India in 1985 during the Prime Ministership of Rajiv Gandhi. It was in fact the culmination of long years of debate, deliberation, disagreement, formulation and reforms, finally reaching a consensus. As a law it provided for the disqualification of an MLA belonging to a political party if he voluntarily gave up his party’s membership or if he disobeyed his party’s whip by voting contrary to its instructions in the Legislative Assembly . Initially, two exceptions were provided in the schedule which would exempt an MLA from disqualification. The first exception was a split in their parent political party which resulted in the formation of a group of legislators. If the group consisted of one-third of such MLAs of that party, they were exempted from disqualification. This exception was removed from the schedule through the Constitution Amendment Act of 2003 due to frequent misuse of this provision.

The second exception was ‘merger’ which could be invoked when the original political party of an MLA merges with another party and at least two-thirds of his MLAs agree to such merger. Therefore, if an MLA shows that his parent party has merged with another party and he and his allies, who constitute two-thirds of the MLAs of that party, have agreed to the merger, Their associates will be exempted from disqualification.

Explanation of ‘merger’

This is an exception contained in paragraph four of the Schedule, which has been resorted to by a large number of legislators in states and even in Parliament, to join the ruling party. These legislators for themselves interpreted the word ‘merger’ to mean the merger of two-thirds of the legislators. He convinced himself that a merger of his parent party was not necessary, mainly because it was unlikely. Politics being the art of the possible, he believed that what is not normally possible could be easily overlooked.

Now this story is being repeated in Maharashtra. But there is a slight difference here. It appears that the dissidents of Shiv Sena believed that if they got two-thirds of the numbers they could form a separate group and topple the government and then form the government with the help of Bharatiya Janata Party. Although the Chief Minister of Maharashtra has resigned and the Governor’s direction to conduct a floor test has failed, the issue arising out of the anti-defection petitions is still alive and needs to be addressed by the next Speaker.

The law stipulates a merger of the parent political party (namely Shiv Sena) which is not likely to happen now or in the future. If the parent party does not merge, these dissidents cannot claim an exception from disqualification, whether they are two-thirds or three-quarters. However, the recent judgment of the Goa Bench of the Bombay High Court ( Girish Chodankar Vs. Speaker, Goa State Legislature) held that the merger of two-thirds of the members of the Legislative Assembly is considered a merger of the parent party, giving them a ray of hope. Unfortunately, this decision does not reflect the correct law and unnecessarily complicates it. Nevertheless, this decision also stresses the need for merger with another party. Therefore, the legal position is that if the dissidents do not merge with another party they will sooner or later be disqualified. They cannot function as a separate group in the Assembly as the law does not permit them to do so.

on disqualification

Now, disqualification petitions have been filed by Shiv Sena against 16 dissidents under Para 2(1)(a) on the ground that they have voluntarily given up the membership of the party. The question whether he has 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 held that “a conclusion can be drawn from the conduct of a member that he has voluntarily given up the membership of the party to which he belongs”. Willful non-participation in an important meeting of a party whose government is facing serious trouble because of them may, in the present circumstances, provide grounds for disqualification.

point of intervention

However, the notice of no-confidence motion against the deputy speaker has added another piece to the puzzle. The intervention of the Supreme Court has also raised some important questions regarding the operation of the anti-defection law.

The first question is whether the court can at any stage interfere before the decision of the Deputy Speaker. A Constitution Bench of the Supreme Court held kihoto holohan (1993) that judicial review may not be available before the decision is taken by the Speaker, nor at the interactive stage of the proceedings. Giving more time to the dissidents to submit their replies is contrary to this decision. The mandatory period for responding to the charge under the rule is seven days. The court has given them 15 days. This is an interference in the negotiation phase which was stayed 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. Supreme Court held Nabam Rebia (2016) that the Speaker will not decide the disqualification cases until the no-confidence motion against him is disposed of. In the case of Maharashtra, the Vice-President, who had assumed the duties of the Speaker because of a vacancy in the office of the Speaker, did not accept the notice of no-confidence as he had doubts about the authenticity of the notice. The rules of the House clearly state that the notice of no-confidence against the Speaker/Deputy Speaker needs to be accepted in the first place which is done only by the Speaker. The Rules do not recognize any other authority to accept 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 allegations, it can be rejected by the Speaker. Therefore, in this case, there is no occasion to say that the Speaker cannot be a judge in his favor. The disallowance of a notice shall not prevent the members from giving other notices in compliance with the requirements of the rule. Further, notice can be given only when the House is called. When the notice was given, the assembly was not called. Therefore, the notice against the Vice-Chairman cannot have any validity under the Rules. Therefore, it cannot be said that notice is pending against the Deputy Speaker.

an observation, its feeling

The anti-defection law is facing many challenges. Since it belongs to the political class, the challenges are serious. The law, though not perfect, is a serious attempt to strengthen the moral content of democracy. Conducting the Bill on the Tenth Schedule, the then Prime Minister Rajiv Gandhi said, “There are a lot of areas in this Bill which are gray. We’re covering new grounds… It’s better for us to tread carefully than to make serious mistakes and regret later. There will be shortcomings in this bill but when we see and recognize those shortcomings, we will try to remove them.

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

PDT Acharya is former Secretary General of Lok Sabha