Subject: Fundamental Rights,DPSP

Context

The political developments in Maharashtra throw up troubling questions about how the political class is weakening the anti-defection law.

Background of the anti-defection law

•  It was enacted as the Tenth Schedule of the Constitution of India, in 1985, under Rajiv Gandhi’s premiership.
• The law as it was enacted provided for the disqualification of a legislator belonging to a political party if he voluntarily gave up his membership of his party or if he defied the whip of his party by voting contrary to its directions in the legislative house.
• Two exceptions: Initially, there were two exceptions provided in the schedule which would exempt a legislator from disqualification.
• 1] Split: The first exception was a split in their original political party resulting in the formation of a group of legislators.
• If the group consisted of one third of such legislators of that party, they were exempted from disqualification.
• This exception was deleted from the schedule through a Constitution Amendment Act of 2003 because of frequent misuse.
• 2] Merger: The second exception was ‘merger’ which can be invoked when the original political party of a legislator merges with another party and not less than two thirds of its legislators agree to such a merger.

Interpretation of term ‘merger’ and issues with it

• It is this second 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.
• These legislators interpreted for themselves the term ‘merger’ to mean the merger of two thirds of legislators.
• Now, the same is being repeated in Maharashtra.
• But there is a little difference here.
• It appears that the dissidents of Shiv Sena believed that if they get the two third number they can form a separate group and topple the government and then form a government with the help of the Bharatiya Janata Party.
• The law imposes the condition of merger of the original political party.
• However, a recent judgment of the Goa Bench of the Bombay High Court ( Girish Chodankar vs The Speaker, Goa State Legislative) that held that the merger of two thirds of Members of the Legislative Assembly is deemed to be the merger of the original party seems to have given them a ray of hope.
• So, the legal position is if the dissidents do not merge with another party they will be disqualified now or later.

Question of disqualification

• Disqualification petitions have been filed by the Shiv Sena against 16 of the dissidents under paragraph 2(1)(a) on the ground that they have voluntarily given up the membership of the party.
• The question of whether they have 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 said “an inference can be drawn from the conduct of a member that he has voluntarily given up the membership of the party.

Weakening the anti-defection law

• Unprincipled defection: The ongoing developments in Maharashtra have once again brought before the country the reality of what the Supreme Court also described as the political evil of unprincipled defection.
• But the order of the Supreme Court, on June 27, on petitions from the dissidents in the Shiv Sena, gives undue advantage to the dissident legislators.
• The Court has granted them a longer time to submit replies than the rules mandate.
• This order is going to set in motion certain political developments which will resurrect in a big way what the Supreme Court characterised as political evil.
• The intervention by the Supreme Court too has thrown up some crucial question.
• Kihoto Hollohan case: The first question is whether the Court can intervene at a stage prior to the decision by the Deputy Speaker.
• A Constitution Bench of the Supreme Court had held in Kihoto Hollohan (1993) that judicial review cannot be available prior to the making of a decision by the Speaker nor at an interlocutory stage of the proceeding.
•  The notice of no-confidence against the Deputy Speaker has added another piece to the jigsaw puzzle.
• Nabam Rebia case: The Supreme Court had held in Nabam Rebia (2016) that the Speaker shall not decide the disqualification cases till the no-confidence motion against him is disposed of.
• The House rules clearly say that the notice of no-confidence against the Speaker/Deputy Speaker needs to be admitted in the first place which is done only by the Speaker.
• But it is the House which takes the final decision on the motion. If the notice of no-confidence does not contain specific charges, it can be disallowed by the Speaker. 
• Further, the notice can be given only if the House is summoned.
• When the notice was given, the Assembly was not convened. So, the notice against the Deputy Speaker can have no validity under the rules.

Conclusion

The law, though not perfect, is a serious attempt to strengthen the moral content of democracy. There will be shortcomings in this Bill but as we see and identify those shortcomings we should try to overcome them.

Context

The ongoing political crisis in Maharashtra, and many others before it, are grim reminders of what the Tenth Schedule can and cannot do.

About 10th Schedule

• In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution.
• But its enactment was catalyzed by the political instability after the general elections of 1967.
• This was the time when multiple state governments were toppled after MLAs changed their political loyalties.
• The purpose of the 1985 Constitution Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected.
• The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.

Provisions of the 10th Schedule

• 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.
• Disqualification provision: 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.
• Exceptions: 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”.
• What is the legislature party?  It means the group consisting of all elected members of a House for the time being belonging to one political party.
• Original political party: An “original political party” means the political party to which a member belongs (this can refer to the party generally, outside of the House).
• Paragraph 4 does not clarify whether the original political party refers to the party at the national level or the regional level.

How Paragraph 4 of the 10th Schedule deals with 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 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.
• However, in most cases there is no factual merger of original political parties at the national (or even regional) level.
• Creation of legal fiction: 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.
• 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.

Merger exception and issues with it

• 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.
• Encouraging defection: Reading Paragraph 4 in this manner would empower legislature parties to solely merge with another party, and thus, practically ease defection.

What if sub-paragraphs 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.
• 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.

Way forward

• Remove Paragraph 4: 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.
• The Law Commission in 1999 and the National Commission to Review the Working of the Constitution (NCRWC) in 2002 made similar recommendations.
• Revisiting by Supreme Court: 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.

Conclusion

Neither of these two interpretations of Paragraph 4complements the ‘mischief’ that the Tenth Schedule was expected to remedy — that of curbing unprincipled defections. Amending it is the need of the hour.