The issues in anti-defection law

(Mains GS-2: issues and challenges pertaining to the federal structure/ Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.)

Context:

• 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”. 

The anti defection law:

• The anti-defection law was inserted in the Constitution in 1985 by the 52nd Amendment Act to combat the “evil of political defections”. 
• The main purpose of the law was to preserve the stability of governments and insulate them from defections of legislators from the treasury benches.
• It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
• A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
• This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
• The decision on question as to disqualification on ground of defection is referred to the Chairman or the Speaker of such House, and his decision is final.

Unchecked and unpunished:

• 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. 
• Instances of floor crossing have long gone unchecked and unpunished and 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.

Interpretation of ‘merger’:

• 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. 
• 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.

Approaching mergers:

• 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. 

• 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.

Parliament’s intention:

• 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.

Way forward:

• 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 required for a  good democracy in India.