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.

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