The anti-defection law was enacted by the Indian parliament in 1985. Its purpose was to eliminate political defection, which was affecting political parties.
Political parties are indispensable actors in our democracy and therefore, lack of stability in the party system had the potential to destabilise democracy itself.
Thus, the main thrust of the law on defection was on stabilising the party system by curbing frequent meanderings of legislators in search of ever-greener pastures.
Initially the law seemed to be working well.
But innovative political minds soon found ways to get around the prohibitions and widen the exceptions.
There was a provision for split in the original law under which, if as a result of a split in the original political party one-third of the members of the legislature move out of the party they were not liable to be disqualified. So the members of the legislature started defecting in groups of ‘one-thirds,’ ignoring the requirement of the law that there should be a split in the original political party.
Considering the egregious way in which this provision of the law was being abused, the parliament omitted the provision on the split altogether. This meant that those who defected in groups comprising one-third of the party would be disqualified as well.
The law provides for another exemption which is known as ‘merger’.
Paragraph 4 of the 10th Schedule contains this exemption which is being misused quite thoroughly nowadays. Under Paragraph 4, if a member of the legislature claims that his original political party has merged with another party and that he and others who constitute two-thirds of the total members have become members of that party, then he and his companion defectors will escape disqualification.
There are two conditions which need to be fulfilled to get the benefit of this provision.
One, his original political party should merge with the other party.
Two, two-thirds of the legislators should agree to the merger.
If these two conditions are fulfilled the defecting members get exemption from disqualification. One thing that should be remembered in this context is that even when the original political party merges with another party, if two-thirds of the legislators do not agree with such a merger, there is no merger in law and the result is disqualification of defecting members. Similarly, if only the legislators merge and there is no merger of their original political party with the other party, then too there is no merger in law and the legislators do not get protection against disqualification.
However, recently, the Goa bench of the Bombay high court held in a defection case involving Goa assembly’s Congress members that if two-thirds of the legislators merge with another party this is a merger in law and the merger of the original political party is not an essential requirement.
BJP working president J.P. Nadda with Goa chief minister Pramod Sawant and other Goa Congress rebel MLAs who joined the party in New Delhi on July 11, 2019. Photo: PTI/Kamal Kishore
Needless to say, this was a highly erroneous interpretation of Paragraph 4 of the 10th Schedule. As a matter of fact, the Supreme Court had held in Jagjit Singh vs State of Haryana (2006) that the ‘split’ (this case was decided when split was a part of the law) should occur in the original political party and only thereafter can the legislators claim exemption for their group consisting of one-third of the members of the legislative party. The ratio of this decision aptly applies to the merger provision too which would mean the merger has to take place between the original political party of the defecting legislators and another party. Only thereafter they can claim exemption from disqualification.
In the recent past, in a number of states, wholesale defections have taken place invoking Paragraph 4 of the 10th Schedule. In all such cases, only the legislators have defected. In fact, in Goa, a majority of the Congress legislators defected to the BJP. In Arunachal Pradesh, the entire Congress legislature party along with its leader joined the BJP, invoking the merger provision. These are flagrant violations of the 10th Schedule.
In the current Maharashtra political drama, too, the magic number of 37 which constitutes two-thirds of the Shiv Sena’s strength in the assembly is being quoted in political circles and the media as a sure way to get around the law.
It means if the dissident group gets 37 MLAs on its side then this group could join hands with the BJP and topple the Uddhav Thackeray government. In this case, the dissident group does not seem to want to be separated from the Shiva Sena but with 37 members, perhaps wants to function as a separate group and support a BJP-led government.
The law as it stands does not allow any separate group to be formed out of a political party to form an alternative government with the help of another party.
Also read: Amidst Maharashtra Drama, Fresh Application in SC on Plea to Bolster Anti-Defection Law
In order to get exemption from disqualification, the dissident Shiv Sena group will have to merge with the BJP. But such a merger will be valid only if the Shiv Sena party itself merges with the BJP. Even when the faulty ruling of the Bombay high court is applied to the Maharashtra situation, the Eknath Shinde group with rebel MLAs will have to merge with the BJP in order to escape disqualification.
The claim that his group is the real Shiv Sena will be decided only by the Election Commission under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order. Therefore, such a claim by the dissident group is irrelevant for the consideration of the question of disqualification under the 10th Schedule. Any citizen can move a petition for the disqualification of these MLAs if there is no merger under Paragraph 4 of the schedule.
It is fatal to the membership of the house to assure oneself that a group of MLAs which constitute two-thirds of the strength of their legislature party can function as a separate group in the house and support or be a part of a government formed by the opposition with their help. Such a course of action is impermissible under the 10th Schedule.
The only group of legislators who can function either as a party or a group after two-third or more legislators move out of the parent party and merges with another party are the ones who are left behind, namely, those who do not agree with such merger. They may be one-third or less, but they alone will be recognised as a separate group by the speaker.
The law on defection is indispensable in a country like India where MLAs need to be virtually imprisoned in resorts in faraway states lest they might be poached by the rival party. So much for the loyalty of the legislators to their parties and the faith of the leadership in their members.
Politicians always look for loopholes in the law. The wholesale defections that have taken place in the recent past are a result of their successful discovery of loopholes in the 10th Schedule. Therefore, this law needs to be tightened.
Also read: Amendment to Anti-Defection Law Seeks to Allow MPs to Vote as per Their ‘Conscience’
Any keen observer of this law would find that the entire Schedule is a classic example of bad drafting. A striking example is Paragraph 4.
The intention of the law makers was to create an exemption from disqualification in case a party merges with another and that the legislators of the merging party should not suffer from disqualification because of a decision taken not by them but by their leadership to change the status of their party.
So the points intended to be put in this paragraph are:
(1) The original political party may merge with another party;
(2) Not less than two-thirds of the members of the legislature party thereof agree to that merger;
(3) Only when they so agree does the merger in law happen, and only then can the legislators claim exemption from disqualification.
This paragraph can be activated only if the above conditions are fulfilled. Now with this in mind, just take a close look at Paragraph 4. Confusion is writ large in the body of this paragraph.
But the point I want to make here is that there is no need for this para to exist in the present form. If an exception is necessary in case of merger of political parties, it can be incorporated in simple language in Paragraph 2 by way of an explanation. In any case the extremely obfuscatory Paragraph 4 and the subhead under Paragraph 2, in particular, should be done away with at the earliest.
P.D.T. Achary is former Secretary General of the Lok Sabha.