The anti-defection law is facing convulsions

General Studies Paper 2

Context: Parliament enacted the anti-defection law in 1985 to curb political defection. The promise of political stability provided by the law seems to be facing challenges, especially in the last five years.

Objectives of anti-defection law:

The first was to curb the act of defection by disqualifying the defecting member.

The second was to protect political parties from instability. Frequent defections from even well organised political parties leave them weak. Indian democracy is based essentially on a party system. Stable parties are requirements of a stable democracy.

How is the stability of parties the principal focus of the 10th schedule?

• It is clear from two provisions enacted in the 10th Schedule- the provision of a split in a political party and that of a merger of two political parties.
• ‘Split’ is no longer a defence against disqualification with the deletion of paragraph three of the Schedule. But, a closer look at this erstwhile provision is necessary for a proper understanding of the true objective of this law.
• Under this paragraph, if a split in a political party results in a faction coming into existence, and one third of the legislators move out of the party and join that faction, those members could get an exemption from disqualification.
• The point to note here is that one third of the legislators would get protection only if there was a split in the original political party.So, the split in the original political party is the precondition for exempting one third of legislators from disqualification.
• Paragraph four protects defecting members from disqualification. The condition is merger of the original political party with another party and two thirds of the legislators agreeing to such a merger.
• It can be analysed from paragraph three and four that the legislators do not have the freedom to bring about a split or merger. It is the original political party in both cases which takes that decision.
• The argument that the Speaker cannot make inquiry into the split or merger is not right. The Speaker takes the decision only after ascertaining the fact of the merger.
• This means that for exempting defecting legislators from disqualification, merger is taken into account only if two thirds of legislators have agreed to it.

What are the constitutional questions that arose in the Maharashtra case?

• The first question that should be decided by the Court is related to the validity of whip. The breakaway group of the Members of the Legislative Assembly chose its own whip. It also reportedly issued whips to all the MLAs of the Shiv Sena.
• But the question related to the validity of the whip should have been decided on the basis of the explanation (a) to paragraph 2(1)(a). It says that an elected member of a House shall be deemed to belong to the political party who made them candidate for election.
• This explanation makes it clear that the party which can legally issue the whip is the Shiv Sena led by Uddhav Thackeray as this is the party which set them up as candidates in the last election.
• It should not be forgotten that the anti-defection law was enacted to punish defectors, not to facilitate defection.
• The Supreme Court by allowing the Election Commission of India to decide the petition under paragraph 15 of the symbols order has put the cart before the horse.
• The 10th Schedule is a constitutional law and paragraph 15 of the symbols order is subordinate legislation. The disqualification proceedings under it should have been given primacy over the proceedings under paragraph 15.