- Prelims: Anti-defection law, floor test, Tenth schedule, powers of speaker etc
- Mains GS Paper II: State legislature- functioning, role and conduct of business, role of judiciary in checks and balances etc
ARTICLE HIGHLIGHTS
- A five-judge Bench of the Supreme Court is hearing “Maharashtra political controversy cases”.
- These cases arose when the ruling Maha Vikas Aghadi (MVA) coalition lost power after an internal splintering of the Shiv Sena party.
- Election Commission of India (ECI) order declaring that Eknath Shinde’s faction is entitled to the party name and symbol.
INSIGHTS ON THE ISSUE
Context
Anti Defection Law:
- Its purpose was to bring stability to governments by discouraging legislators from changing parties.
- It sets the provisions for disqualification of elected members on the grounds of defection to another political party.
- It allows a group of MP/MLAs to join (i.e., merge with) another political party without inviting the penalty for defection.
- And it does not penalize political parties for encouraging or accepting defecting legislators.
- 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party must be in favor of a “merger” for it to have validity in the eyes of the law.
- The members disqualified under the law can stand for elections from any political party for a seat in the same House.
- The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.
- The law does not provide a timeframe within which the presiding officer has to decide a defection case.
Grounds of Disqualification:
Issues with Anti Defection Law:
- Ambiguity about Party: It does not clarify whether the original political party refers to the party at the national level or the regional level.
- Claim about merger:
- merger can take place only when an original party merges with another political party
- 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.
- Creating legal fiction : Merger of two third members of the 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.
- Undermining Representative & Parliamentary Democracy:
The MP or MLA has to follow the party’s direction blindly and has no freedom to vote in their judgment.- The chain of accountability has been broken by making legislators accountable primarily to the political party.
- Controversial Role of Speaker: 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.
- No Recognition of Split: Due to the 91st amendment, the anti-defection law created an exception for anti-defection rulings.
- However, the amendment does not recognize a ‘split’ in a legislature party and instead recognizes a ‘merger’.
- 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 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 administration.
- Promote Horse Trading: Defection promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.
The Tenth Schedule at present:
- There have been innumerable instances of governments being “toppled” mid-term after a set of the ruling party or coalition’s own members turn against it.
- Power-politics of intra-party dissent is evident from the well-documented rise of “resort-politics
- party leaders hold their “flock” more or less captive within expensive holiday resorts.
- Mass resignations (instead of defections) to force a fresh election,
- Partisan actions by State Governors with respect to swearing-in ceremonies and the timing of floor tests
- Partisan actions by Speakers in refusing to decide disqualification petitions, or acting in undue haste to do so.
Challenges before Court:
- The Court has to adjudicate the actions of a number of constitutional functionaries: Governors, Speakers, legislative party leaders, elected representatives, many of whom have acted dubiously.
- The frequent toppling of governments leading to peddling of cases.
- Politicians finding loopholes in Supreme Court judgments
Way Forward
- The Tenth Schedule has been reduced to a nullity: governments that do not have clear majorities are vulnerable, at any point, to being “toppled” in this fashion.
- In the context of a changed political situation judicial interventions, if not carefully thought through, can hasten the toppling of a government and contribute to turning the Tenth Schedule into a dead letter.
- Paragraph 4 of the Tenth Schedule: It must also be examined in the context of paragraph 3 of the Tenth Schedule (deleted by the Constitution (Ninety First Amendment) Act, 2003,
- Law Commission of India, in its 170th Report on the Reform of the Electoral Laws (May, 1999) had recommended deletion of paragraph 3, along with paragraph 4 as it is likely to lead to several complications and unnecessary disputes.”
- To shield the detrimental effect of the anti-defection law on representative democracy, the scope of the law can be restricted to only those laws, where the defeat of government can lead to loss of confidence.
- The Court’s judgment can act as a counterweight to political power, and infuse a dose of constitutionalism into the politics of government formation and toppling.
- The Court’s judgment could make toppling governments even easier for those with the means to do so.
QUESTION FOR PRACTICE
Discuss the procedures to decide the disputes arising out of the election of a Member of the Parliament or State Legislature under The Representation of the People Act, 1951. What are the grounds on which the election of any returned candidate may be declared void ? What remedy is available to the aggrieved party against the decision? Refer to the case laws.(UPSC 2022) (200 WORDS, 10 MARKS)
