Anti-Defection Law Applies Even if a Faction Splits From a Party : Supreme Court at Shiv Sena Hearing : Daily Current Affairs

Date: 03/03/2023

Relevance: GS-2: Indian Constitution - features, amendments, significant provisions and basic structure

Key Phrases: Tenth Schedule, Anti-Defection Law, Nabam Rebia Case, Election Commission, Speaker’s Discretion

Why in News?

In a hearing regarding the political dispute between former Maharashtra Chief Minister Uddhav Thackeray and current Eknath Shinde, the Supreme Court ruled that the anti-defection law is applicable even if a faction splits from a political party and is able to garner a majority within the party itself.

Key Highlights:

A split does not presuppose that the split's participants leave the party.
The CJI ruled that the Tenth Schedule (anti-defection law) also operates when a group of persons, whether minority or majority, claim that they belong to the same party and whether a faction was the majority or minority makes no difference under the Tenth Schedule.

The Story So Far:

The Uddhav Thackeray faction approached the Supreme Court challenging the decision of the Election Commission (EC) recognising the Eknath Shinde-led faction as the real Shiv Sena and ordering allocation of the "bow and arrow" poll symbol to it.
The EC is of the view that MLAs backing Eknath Shinde got nearly 76 per cent of votes polled in favour of the 55 winning Shiv Sena candidates in the 2019 Maharashtra Assembly polls.

What Is The Issue?

Mr. Shinde's faction had revolted against the Thackeray administration and was able to win over the majority of the party's lawmakers and the Thackeray government was overthrown.
Senior Advocate Neeraj Kishan Kaul, on behalf of the Eknath Shinde faction questioned if Mr. Thackeray had any moral or political standing to be Chief Minister in the absence of a majority.

Arguments Given By the Eknath Shinde Faction:

Senior Advocate Neeraj Kishan Kaul, on behalf of the Eknath Shinde faction, submitted that their argument was never that they split, rather their argument was that they represented the real Shiv Sena and were now recognised as such by the Election Commission of India.
Relying on the judgement in Yediyurappa case, he argued that merely because a dissent is expressed within the party, it did not mean that a faction was acting against the party.

Nabam Rebia Case:

During the hearing, Mr. Kaul argued that the Speaker's hands were tied due to the Supreme Court's previous judgment in Nabam Rebia case.
Mr. Zariwal, the then Deputy Speaker who had issued the notice for disqualification against Mr. Shinde and his camp of MLAs, himself was facing disqualification proceedings.
According to the Rebia judgment, he had to clear his name before proceeding with the disqualification process against the Shinde camp.
This prevented the Speaker from taking any action on the disqualification petitions.
The Chief Justice pointed out that Mr. Shinde was sworn in as Chief Minister and given an opportunity to prove his majority on the floor of the House only because the Speaker could not disqualify him. The CJI also agreed that the Speaker had acted hastily in dealing with the disqualification process.

About Anti-Defection Law:

The Anti-Defection Law under the Tenth Schedule of the Constitution punishes MPs/ MLAs for defecting from their party by taking away their membership of the legislature.
It gives the Speaker of the legislature the power to decide the outcome of defection proceedings.
It was added to the Constitution through the Fifty-Second (Amendment) Act, 1985.
The law applies to both Parliament and state assemblies.

Cases Considered Under The Anti-Defection Law:

Voluntary give-up:
- When a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House against the wishes of the party. Such persons lose their seats.
Independent members:
- When a legislator who has won his or her seat as an independent candidate joins a political party after the election.
- In both these instances, the legislator loses the seat in the legislature on changing (or joining) a party.
Nominated MPs:
- In such case, the law gives them six months to join a political party, after being nominated. If they join a party after such time, they stand to lose their seat in the House.

Cases Exempted Under The Anti-Defection Law:

As per the 1985 Act, a 'defection' by one-third of the elected members of a political party was considered a 'merger'.
The 91st Constitutional Amendment Act, 2003, changed this and now the anti-defection law does not apply if the number of MLAs who leave a political party constitutes two-thirds of the party’s strength in the legislature. These MLAs can merge with another party or become a separate group in the legislature.

Existing Loopholes In Anti-Defection Law:

Merger Issue:
- The two-thirds merger provision allows for clandestine corruption where by means fair or foul, to either topple governments or to strengthen a razor-thin majority of the party in power.
- This makes the entire provision unworkable and unconstitutional.
- Such misuse is observed in Manipur, Goa, Madhya Pradesh, Uttarakhand and other jurisdictions.
Speaker’s Discretion:
- There are many situations where, even though the provisions of merger ex-facie did not happen, the speaker of the assembly keeps the proceedings prolonged so that the term of the assembly comes to an end before the proceedings under the Tenth Schedule against those ex-facie defectors have been concluded.
- The seeming political bias of the speakers acting as tribunals is apparent from how disqualification petitions are dealt with .
- In Manipur, for instance, seven Congress MLAs joined the BJP shortly after the 2017 Assembly election and one of them became a Minister too. However, the Speaker did not act on petitions to disqualify the Minister for over two years.
Issues with Article 164(1B):
- It stipulates that a member of the legislative assembly who is disqualified from being a member of the house shall also be disqualified to be a minister from the date of his disqualification.
- Shortcoming is that law allows a legislator who is disqualified on account of defection to re-contest elections even during the term of the ongoing assembly.
- Then such a disqualification has no real effect. It is clearly a provision that surpasses all canons of morality.