Friday, December 8, 2023

The Disqualification Predicament

The Supreme Court said that when the Maha Vikas Aghadi government was formed, the rebels were part of the decision. The anti-defection law applies even if a faction splits from a political party and gets a majority

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By Vivek K. Agnihotri

During a hearing relating to the split in the Shiv Sena party, a five-judge Constitution bench of the Supreme Court averred that the anti-defection law applies even if a faction splits from a political party and manages to cobble up a majority within the party itself. It is to be noted here that explanation (a) to para 2(1)(b) of the Tenth Schedule states that an elected member of a House shall be deemed to belong to the political party by which it was set up as a candidate for election. The Tenth Schedule is applicable to a person or a group of persons, whether a majority or a minority.

The Court observed that when the Maha Vikas Aghadi (MVA) government was formed, the rebels were part of the decision and had ministerial posts. Is it now open to them to say that they do not support the coalition government? As the legislators were elected on a party symbol, they were bound to abide by the party decision. Should the governor have not examined this aspect before asking the chief minister to face a floor test? Should he have taken cognizance of the rebellion within the party?

On January 23, 2022, the Shiv Sena celebrated the birth anniversary of its
founder, Bal Thackeray, with a promise to consolidate its organisation across Maharashtra. As the party marked its foundation day on June 19 later, little did it know that the power dynamics within its own organisation had altered because of a revolt by its old-timer Eknath Shinde.

After the 2019 assembly polls, the Shiv Sena had forged an alliance with the Congress and the NCP to form the MVA government. But six months later, Shinde, then a cabinet minister in the government, led the revolt which vertically split the party. Shinde first went to Surat with about a dozen Sena MLAs. Within a few days, he allegedly had the support of 40 Sena MLAs and 10 independents ensconced in Guwahati. This brought down the MVA government, and its downfall paved the formation of the BJP-Balasahebanchi Shiv Sena coalition government.

On the other hand, Uddhav Thackeray, Bal Thackeray’s son, made a proposal for appointment of a new leader of the legislature party, which was accepted by Narahari Jirwal, the Deputy Speaker. Shinde challenged this decision stating that he had the support of 40 MLAs, much more than the number required as per the anti-defection law. On June 25, the Deputy Speaker, on an application made by the Uddhav Thackeray faction, issued notices for disqualification to 16 MLAs who were absent in an urgent meeting called by the chief minister.

On June 26, 2022, Shinde moved the Supreme Court challenging the disqualification notices in the context of the Supreme Court ruling in Nabam Rebia vs Deputy Speaker and Ors (2017) because a motion of no confidence was pending against him. The Supreme Court granted relief to him and other MLAs by extending time till July 11 to file a reply to the notices of disqualification.

In the meanwhile, Devendra Fadnavis of the BJP, handed over a letter to BS
Koshyari, the governor, requesting him to direct a floor test in the assembly. This was done on June 30. Thackeray’s Shiv Sena moved the Supreme Court challenging the said decision, but the Court refused to stay the floor test, following which Thackeray resigned as chief minister. Shinde reached Mumbai and after holding a meeting with Fadnavis, staked claim to form the next government.

In common parlance, the Tenth Schedule of the Constitution is known as the
anti-defection law. It was added to the Constitution in 1985 to combat the evil of political defections on account of offers of office or other inducements. The Tenth Schedule lays down the process by which legislators may be disqualified on grounds of defection by the presiding officer of a legislature based on a petition by any other member of the House. The law applies to both Parliament and state legislative assemblies. Consequent to this provision, Articles 75 (1B), 164 (1B) and 361B were also inserted in the Constitution. These prescribe that if a legislator (MP or MLA/MLC) is disqualified for being a member of the House under paragraph 2 of the Tenth Schedule, he shall also be disqualified to be appointed as a minister for the duration of the period commencing from the date of his disqualification till the date on which his term would expire or, where he contests any election, till the date on which he is declared elected, whichever is earlier. He is also disqualified for appointment on remunerative political post (Article 361B).

The Tenth Schedule lists two grounds on which a legislator can be disqualified for defection. One, if he voluntarily gives up membership of his political party, and two, if he votes or abstains from voting in the House contrary to any direction issued by his party. Further, the Supreme Court in several judgments, particularly in Zachillu Khusantho vs State of Nagaland (1993), held that even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party. Thus, the act of voluntarily giving up the membership of a political party may be either express or implied. The Tenth Schedule, however, provides an exception to this. As of now, if two-thirds of the members of a political party decide to merge with another party or form another party, the disqualification on the ground of defection is inoperative.

The Tenth Schedule has, no doubt, weakened the prospect of intra-party
dissent in the interest of checking unprincipled floor-crossing. However, it has permitted members of legislatures to avoid disqualification by switching parties en masse.

It is to be noted here that in the case of the Shiv Sena, the breakaway faction is
not claiming either merger with another party or formation of another party,
but being the “real” party. This is proving bothersome to the Supreme Court,
while is deciding the case. Earlier, the Tenth Schedule had a provision (para 3)
for recognition of a split, which was omitted by the 91st amendment of the
Constitution in 2003.

Another twist in the tail was added by both sides issuing or planning to issue
whips to all Shiv Sena MLAs to remain present during the budget session of the legislative assembly. Violation of the whip has the consequence of incurring
disqualification, but it is still not clear as to which faction’s whip has to be
construed as the party’s official whip.

It stands to reason that the voters, in most cases, vote for a candidate on the
basis of his professed political credentials-that is his affiliation to a political party. They give him preference taking into account the agenda for action spelt out in the manifesto, written or otherwise expressed. If after getting elected, the candidate changes his party, he is, in effect, not the candidate the electors voted for. In the fitness of things, therefore, he should go back to the people to seek a fresh mandate. As a matter of fact, it could be one of the grounds on which the electors should be empowered to recall the candidate, as and when the “Right to Recall” legislation sees the light of the day in India.

As far as voting in the House is concerned, a contrarian view is that the anti-defection law is per se against the concept of representative democracy. This is because it deprives the legislators of their freedom to vote in the House on the basis of their considered opinion and best judgment, by making them accountable primarily to their political party. In particular, the legislators belonging to the ruling party or coalition, are unable to hold the government accountable.

The fundamental problem with the law is that it attempts to find a legal solution to what is essentially a political problem. In Kihoto Hollohan vs Zachilhu and Ors (1992), the Supreme Court seemed to acknowledge that the phrase “any direction” was plainly too wide. Perhaps it ought to be narrowly defined and limited to cases involving motion of confidence or no-confidence. The representatives of the people should be allowed to act in the interests of their constituents and not merely as mouthpieces of their respective political parties. Even during the early days of Independence, in the Constituent
Assembly, whips used to be issued to Congress party members, but they did
not silence everyone. Shibban Lal Saksena frequently spoke in defiance of it
and was, apparently never punished for the delinquency.

Again, the proposed change disqualifying all defectors, irrespective of their numerical strength, may make a prospective defector wait till the next election and resign his membership of the legislature before joining the preferred party or floating his own party, as happened in several cases during the run up to the elections to several state legislative assemblies held in 2022. Fair enough, should one say?

Be that as it may, it remains to be seen how the Supreme Court will resolve the
predicament arising from the split in the Shiv Sena party, having allowed the
floor test to be taken after extending the disqualification proceedings. Will the
Supreme Court also take into account the verdict of the Election Commission
relating to allotment of the party symbol?

The writer is former Secretary-General, Rajya Sabha

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