The recent political crisis in Maharashtra, the defection of Shiv Sena Legislative members and the fall of the Uddav Thackrey-led Maha Vikas Aghadi government has again raised the question of the effectiveness of Anti defection Law (10th schedule of the constitution). Incidents of defecting to a powerful ruling government as we see in the case of Telangana where twelve out of eighteen MLA’s of Congress defected to Telangana Rashtra Samithi government which was already enjoying a good majority in the legislature or toppling a coalition government or governments which have a slight majority in the legislature has increased. The resignation has become a new tool to bring down the regime and make an alternate government which we have seen in the case of Karnataka where Congress-JDS MLAs resigned from their post which led to the fall of the H.D. Kumaraswamy government and this trend of mass resignation was continued in Madhya Pradesh. These all incidents of defection have raised the question of the effectiveness of Anti defection law and it is a time when parliament should make relevant changes in the tenth schedule of the Constitution to make it more effective.
In India Defection evokes the image of cash being exchanged for cross-voting or shifting from one political party to another. The tenth schedule of the constitution of India contains the Anti-defection Law which was inserted by a Fifty Second Constitutional Amendment Act to stop the evil of defection. The defection was said to undermine the very foundation of our democracy and the principle which sustains it. Anti-defection Law says that a member shall be disqualified if he voluntarily gives up the membership of his political party or if a member goes against the direction of his party and a nominated member will be disqualified from his membership if he joins any political party after the expiry of six months from the date on which he takes his seat. There exist some exemptions from the disqualification, if one political party decides to merge with another political party or opted to form a new political party or opted to work as a separate group then they will not be disqualified.
Legislative and Judicial changes
In Kihoto Hiollohon vs Zachilhu Supreme Court, a majority judgement termed paragraph seven of the Fifty-Second Constitutional Amendment Act invalid. However, Supreme Court refused to strike down paragraph six of this amendment act. Paragraph seven said that no court will have any jurisdiction in adjudicating the matter of disqualification of members of parliament and state assembly. Paragraph six has given the authority to the speaker or chairperson of the house to adjudicate the matter of disqualification.
170th report of Law Commission has recommended amending paragraph three and paragraph four of the Tenth schedule however, parliament was wise to roll back only paragraph three of the said Schedule under Ninty First Constitutional Amendment Act. Paragraph three dealt with the clause of split where if 1/3rd or more member of any house of a particular party decides to split the party then they will be exempted from defection and paragraph four deals with the clause of the merger. 255th report of Law Commission endorsed the view of the parliament that requirement of 2/3rd members to defect the party has prevented the misuse of Defection Law even the Supreme Court in Rameshwar Prasad v Union of India said that defection has been made difficult by deleting paragraph three but recent incidents have shown that both the Law Commission and Supreme Court were incorrect in there finding. This law has several loopholes which need to be addressed to keep governments stable.
Needful changes in Current Law
Defectors have used resignation as a tool to topple governments in Madhya Pradesh and Karnataka as getting 2/3rd MLA’s in a big state is not an easy task. In Karnataka 15 disqualified Congress and JDS MLAs joined BJP and 13 rebels got a by-poll ticket. This shows that there are no serious consequences for the defector who resigns from a Legislative Assembly to bring down the majority mark of government then shifts to another political party, gets a bypoll ticket, wins the election and again becomes a member of the Legislative Assembly for money or ministerial post. The then speaker of Karnataka Assembly K.R. Ramesh Kumar debarred the Congress-JDS rebel from contesting the by-poll however, Supreme Court in Srimanth Balasaheb Patil vs Honorable Speaker Karnataka Legislative Assembly overturned his ruling by saying that the Tenth schedule does not give power to the speaker in doing so. In the current legal framework legislator who wishes to defect need not dread the Tenth Schedule of the Constitution. Before they indulge in any anti-party activity they just need to send their resignation to the speaker. It is a major loophole in Anti-defection Law and it is time for parliament to step in and impose some cost on the rebel legislatures. The cost could be as was done by Karnataka Assembly Speaker that they could not contest by-poll.
Paragraph six of the tenth schedule gives enormous power to the speaker to decide whether a member of a house has become subject to disqualification. Usually, the speaker will be a member of the ruling political party and it is not required for him to resign from his political party. They act like the nominee of their political party. We cannot expect that a speaker or chairperson will act fairly and impartially. In 2017 BJP formed the government in Manipur after seven Legislators who won on Congress tickets switched their sides. Technically they should be disqualified but the speaker kept the petition which was filed by the Congress party for disqualifying rebel MLA pending. Supreme Court has to intervene in March 2020 because after giving sufficient time to the speaker he had not taken any decision and Court removed minister ShyamKumar Singh against whom a disqualification petition was filed. In another case, Mukul ROY who became a Member of the Legislative Assembly on the ticket of the BJP later joined TMC but the speaker who is a member of the ruling TMC rejected the petition. Supreme Court in Srimanth Balasaheb Patil vs Honorable Speaker Karnataka Legislative Assembly said that “there is a growing trend of the Speaker acting against the constitutional duty of being neutral’’. It is high time for parliament to amend paragraph six of the Tenth Schedule and authority of adjudication should be given to any independent tribunal which could be headed by a retired High Court or Supreme Court Judge.
The election is a vital part of democracy but democracy does not end at the election. Elected members have to fulfil their duty and their promises. They win the election on the ticket of one party which has its manifesto and after winning the election switching to another political party is a fraud to the people of the constituency and this should be stopped. Current provisions of the Anti-defection Law are unable to stop this menace and it is time for parliament to step in and make relevant amendments in Tenth Schedule to make it more effective.
Author(s) Name: Krishna Modani (Nirma University, Ahmedabad)