Why is it in the News?

The Maharashtra Assembly Speaker has refused to disqualify 40 MLAs of the Eknath Shinde faction after recognising it as the real Shiv Sena.

What happened in Maharashtra?

• In June 2022, a faction of the Shiv Sena headed by Eknath Shinde moved with 37 of the 55 MLAs and claimed to be the real Shiv Sena. It appointed Bharat Gogawale as its whip.
• However, the UBT faction claimed that they were the original political party and that Sunil Prabhu of its faction would continue to be the whip.
• The Speaker has now recognised the Eknath Shinde faction as the real Shiv Sena and held the appointment of whip by this group as valid.
• This was based on the strength of members of the Shinde faction and the party’s 1999 constitution.
• The Speaker based on this ruling refused to disqualify 40 MLAs of the Shinde faction.
• He also refused to disqualify 14 MLAs of the UBT group as the whip instructions from Bharat Gogawale could not be physically served on them.

What is Defection?

• Defection refers to the act of a legislator shifting allegiance from one political party to another, embodying elements of revolt, dissent, and rebellion by an individual or a party.
• In the political context, it manifests as a scenario wherein a member of a political party relinquishes their allegiance and aligns with a different political entity.
• Historically termed as 'floor crossing,' this phenomenon finds its roots in the British House of Commons, symbolised by a legislator physically changing sides from the Government to the Opposition or vice versa.
• In India, the defections of legislators during the 1960s and 70s from their parent parties created political instability in many States, bringing down elected governments.
  • Therefore, to ensure the stability of elected governments, the 52nd constitutional amendment introduced the ‘anti-defection’ law through the Tenth Schedule in 1985.

About the Anti-Defection Law:

• The Tenth Schedule of the Constitution, also known as the anti-defection law, was added to prevent political defections.
• The rationale for curbing such defections was that they undermined the foundations and principles of Indian democracy.
• The law disqualifies legislators for violating the will of their political party.
• In the 37 years, the law has been in place, while individual defections may have reduced, en masse defections continue.
• However, the presence of the Anti-Defection Law has also undermined democracy by inhibiting legislators from exercising their choice and ability to function independently, and restricted decision-making in legislatures to a few who control political parties.

Features of the Anti-Defection Law:

• Disqualification on grounds of defection: A legislator belonging to a political party will be disqualified if he:
  • (i) voluntarily give up his party membership, or
  • (ii) votes/abstains to vote in the House contrary to the direction issued by his political party.
  • A member is not disqualified if he has taken prior permission of his party, or if the voting or abstention is condoned by the party within 15 days.
  • Independent members will be disqualified if they join a political party after getting elected to the House.
  • Nominated members will be disqualified if they join any political party six months after getting nominated.
• Exemptions in cases of merger: Members are exempted from such disqualification when at least two-thirds of the original political party merges with another political party. Further:
  • (i) The members must have become members of the party they have merged with/into, or
  • (ii) they should have not accepted the merger and chose to function as a separate group.
• Decision-making authority: The decision to disqualify a member from the House rests with the Chairman/Speaker of the House.
  • In the Kihoto Hollohan case (1993), the Supreme Court held that the presiding officer, while deciding a question under the Tenth Schedule, functions as a tribunal.
  • Hence, his decision like that of any other tribunal, is subject to judicial review on the grounds of mala fides, perversity, etc.

Advantages of Anti-Defection Law:

• Enhances political stability by curbing legislators' inclination to switch parties.
• Facilitates democratic realignment through party mergers within the legislature.
• Mitigates corruption and reduces non-developmental expenditures associated with irregular elections.
• Offers constitutional recognition to the existence of political parties, marking a significant milestone.

Criticism of the Anti-Defection Law:

• Limited Independence: The ADL restricts legislators from acting independently, contradicting the essence of parliamentary democracy by penalizing independent actions.
• Party Alignment Constraints: Legislators are bound by the official stance of their party on any issue, limiting their flexibility and autonomy.
• Reduced Constituency Accountability: By preventing parliamentarians from switching parties, the ADL diminishes accountability to both the Parliament and the constituents.
• Defence Through Splitting: The law allows a defence against disqualification through party splits, where one-third of legislators moving with a breakaway group avoids disqualification.
• Misinterpretation Challenges: The ADL is prone to misinterpretation, as seen in instances like Maharashtra, highlighting the absence of authoritative legal interpretations.
• Ambiguity in Splits: Recent occurrences show opposition members breaking away in small groups to join the ruling party, raising questions about disqualification when more than 2/3rd of the opposition defects.
• Attraction of Office: Critics argue that ideological defection is rare in India, with legislators often defecting due to the lure of office rather than ideological shifts.

Recommendations from Various Committees on ADL:

• Dinesh Goswami Committee on Electoral Reforms (1990): Disqualification should be confined to cases where a member voluntarily relinquishes party membership.
  • Abstention from voting or voting against the party whip in a confidence or no-confidence motion should warrant disqualification.
  • The President/Governor, advised by the Election Commission, should decide disqualification matters.
• Law Commission (170th Report, 1999): Eliminate provisions exempting splits and mergers from disqualification.
  • Treat pre-poll electoral fronts as political parties under the anti-defection law.
  • Political parties should issue whips only in situations jeopardizing the government.
• Constitution Review Commission (2002): Bar defectors from holding public office or any remunerative political post for the remaining term.
  • Consider the vote cast by a defector to topple a government as invalid.
• Election Commission: Decisions under the Tenth Schedule should be made by the President/Governor, guided by the binding advice of the Election Commission.

Important Judgment Regarding Anti-Defection Law:

• Kihoto Hollohan Case: In the Kihoto Hollohan case, the Supreme Court affirmed the overall validity of the Anti-Defection Law, except for the aspect related to judicial review, which was deemed unconstitutional.
• Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque Case: The court, in the Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque case, established that publicly opposing one's original party and supporting another party constitutes a de facto resignation from the original party.
• Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly Case: In the Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly case, the court addressed the jurisdiction of the Speaker or Presiding Officers in deciding questions related to defection.
  • The court clarified that there is no provision in the Tenth Schedule limiting the Speaker's exercise of jurisdiction to decide such questions.

What are the reforms needed?

• The Supreme Court in Sadiq Ali versus Election Commission of India (1971), laid down the three-test formula for determining which faction is to be recognised as the original political party by the Election Commission.
  • These are the aims and objects of the party;
  • Its affairs as per the party’s constitution reflect inner party democracy; and
  • The majority in the legislative and organisation wings.
• The first test is subject to competing claims by rival groups.
• But it is the lack of inner party democracy that results in most of these defections.

The Election Commission in February 2023, recognised the Eknath Shinde faction as the real Shiv Sena, solely based on votes polled by legislators supporting Eknath Shinde in the Maharashtra Assembly elections of 2019. An authoritative Supreme Court judgment in these matters and the setting up of an independent tribunal to decide on the disqualification of members will reduce the ambiguities surrounding the Tenth Schedule. The real reform required is institutionalising internal democracy through regular inner-party elections in our political parties with strict monitoring by the Election Commission.