Understanding the gaps in the anti-defection law

The Tenth Schedule needs to be amended to add more tensile strength against defectors, and the Supreme Court has to come up with a robust and unambiguous decision to clear all doubts.

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Why do we need an anti-defection law?

THE simple understanding of democracy is that we have the power to choose our representatives. Those representatives will then represent us through legislation. We expect that they will use their voice for us and our uplifting. But what if the elected representatives who the public voted for, taking into account their claims, promises, and political party entrusted to change our lives, instead choose to change their political identity?

In the 1960s and 1970s, by the fifth general elections of India, almost half of all Parliamentarians and legislators had changed their party affiliations several times. There were cases of some legislators changing parties as many as five times. In 1985, the Indian National Congress-led Union government enacted the Tenth Schedule to the Constitution, otherwise popularly known as the 'anti-defection law', to tackle the problem of such defections.

Also read: As Supreme Court mulls referring Shiv Sena dispute to a Constitution bench, Tenth Schedule's relevance comes under scrutiny

What are the problems and loopholes in the present anti-defection law?

Laws are the creation of humans, and humans can create laws with problems and unforeseeable loopholes. Such is the case of the anti-defection law as well. The law was passed in haste, rushed through the two Houses, and was not a result of consensus and broad-based national debate. Taking the context of the recent events in Maharashtra, we can identify the following loopholes and legal issues:

'Merger'

As per Paragraph 4 of the Tenth Schedule, if the "original party" from which a member of House who is defecting can create a merger with another political party, the member won't be eligible for disqualification on the ground of defection. The merger of the original party will "be deemed to" have taken place if two-thirds of the legislature members of the original party have agreed to the merger, which means that if two-thirds of the representatives of a party defect, they won't be disqualified.

The problem here lies in the interpretation of the term "original party".

A similar situation arose earlier this year when the Goa bench of the Bombay High Court, in Girish Chodankar versus Speaker, Goa State Legislative Assembly & Ors., held that the merger of two-thirds of the members of the original party with another party will be deemed as a merger.

However, the court in its judgement only looked at sub-paragraph 2 of paragraph 4, which is not parallel with the full content, context, and picture of paragraph 4. A straightforward reading of the paragraph indicates that the exception applies if the original Party of the defector has merged with another party, leading to a merger.

Also read: HC upholds Goa Speaker's order dismissing pleas seeking disqualification of 12 MLAs; setback for Cong, while BJP welcomes order

Going by this judgment, which the present Maharashtra Chief Minister and original Shiv Sena 'rebel' Eknath Shinde's camp seems to have gone through, the defecting members will be considered the original party, and any rebel group can find an easier path to escape disqualification and after that, change the permutation of a sitting government. However, the language of paragraph 4, when read in totality, makes it clear that first, the original party has to agree to a merger, and then the agreement of at least two-thirds of the legislature party to the merger has to be reached.

The high court, in Girish Chodankar, also went ahead and held that sub-paragraphs 1 and 2 of paragraph 4 have to be read independently, which creates problems, as an overall reading of the paragraph only can provide a tough challenge to defectors, unlike an independent reading, which ironically provides for the defectors a yellow brick road leading directly to defection without sanction.

'Voluntarily'

Paragraph 2 of the Tenth Schedule provides for disqualification on two bases: giving up membership of one's political party, or voting/abstaining to vote contrary to the directions of one's party. The words of the relevant provision prescribe that a member will be disqualified if they 'voluntarily' give up the party membership.

A simple reading of this text is that to be disqualified, one has to willingly give up party membership, and submit a resignation to be disqualified. However, in 1994, the Supreme Court in Ravi S. Naik versus Union of India said that "an inference can be drawn from conduct of a member that he has voluntarily given up the membership of the party to which he belongs"; this blurred the standard as to when a member's conduct will be considered as being a voluntary withdrawal from the party. Moreover, there is a lack of clarity as to who is to decide what kind of conduct qualifies as such voluntary withdrawal.

In the Maharashtra case, Shiv Sena president Uddhav Thackeray sought Shinde's disqualification because he did not attend an important meeting. Thus, that absence from the meeting is the basis for disqualification as it proves conduct. But then again, this can be misused easily to get rid of certain members simply on the basis that the conduct was such that disqualification is justified.

Also read: The Eknath Shinde faction cannot claim immunity from Tenth Schedule by posing itself as the real Shiv Sena: P.D.T. Achary

Speaker's authority

The Shinde camp in Maharashtra decided to file a no-confidence motion against the then Deputy Speaker of the Maharashtra Assembly to save their disqualification. The Supreme Court in its 2016 judgement of Nabam Rebia versus Deputy Speaker had held that a Speaker cannot decide on disqualification cases when there is a pending no-confidence motion against them. But this again raises a loophole where members can raise a no-confidence motion to take advantage of the pendency and escape disqualification.

But then again, this is not the only loophole here because as per the rules, only the Speaker has the authority to admit no-confidence motions against themself, which doesn't help at all because why would any Speaker in such a situation choose to admit such a motion against their authority and powers? Furthermore, this rule is against the legal dictum of nemo judex in causa sua (no one can be a judge in their own cause). Principles of natural justice are violated when a person becomes a judge of themselves.

How have the Supreme Court's interventions further muddied the water?

While one must expect the Supreme Court to look into these problems and paint a clear picture, its own previous intervention is questionable. Apart from Ravi S. Naik already discussed above, in Kihoto Hollohan versus Zachillhu & Ors. (1992) a Constitution bench of the court had given a verdict that there cannot be a judicial review prior to the Speaker's decision and during an interlocutory stage. The Supreme Court upheld the constitutionality of the discretionary powers given to the Speaker in this judgement.

So, if we look at the Maharashtra situation, there is a big question mark as to whether even the Supreme Court can legally intervene when the matter is in an interlocutory stage.

Also read: Speed of time: Constitutional questions surrounding the Maharashtra political crisis

The recent events in Maharashtra show how different power holders in the political battleground use the law as their weapons to counter the other side. The recent developments show that if we want the electoral democracy of India to be upheld, the Tenth Schedule needs to be amended to add more tensile strength against defectors; the Supreme Court has to come up with a robust and unambiguous decision to clear all doubts; laws must not be created in a rush.