Herald View: The anti-defection law 'ball' is in your court, learned judges

It has been known for quite some time that the 10th Schedule of the Constitution, which deals with the disqualification of MPs and MLAs on grounds of defection, is a lot less potent than it was meant to be. The anti-defection law, which was passed in 1985 to penalise defectors, has actually been rather unsuccessful in stopping defections.

The frequency of defections did indeed slow down soon after the law was passed; but in recent years, the scourge once again has been threatening to become endemic, driven by the BJP’s insatiable hunger for power and insistence on toppling elected governments ruled by the Opposition.

The anti-defection law has been rendered ineffective, however, only partly because of the poorly drafted provisions and the convoluted language used—which allows ambiguous, if not totally contradictory, interpretations by high courts and the Supreme Court.

The Supreme Court’s reticence on it in recent years, rather than clearing the air and ironing out the ambiguities, has also contributed to making the law a mere showpiece. Several experts hold that the 10th Schedule never granted legislators the freedom to split a party or bring about a merger of their party with another.

That authority rested with the party organisation which had fielded the legislators in elections, with the legislators only having the freedom to agree or disagree with the party’s decision. That was the original intent of the law.

Similarly, these experts are clear that a whip can be issued by only the party and not by a group of legislators claiming to have the majority. By not settling this point unequivocally for so long, however, the Supreme Court has unfortunately enabled the horse trading, resort politics and political instability of recent years.

Earlier this year alone, while dealing with the ‘split’ of the Eknath Shinde faction from the Shiv Sena, the Supreme Court kept this substantive issue pending while allowing a floor test, letting the Election Commission of India allot the symbol and letting the speaker of the assembly decide on the defections.

Now the Maharashtra assembly speaker is expected to decide on the issue again next month, with the very real possibility of the disqualification of MLAs belonging to the Shinde faction. That lingering uncertainty from the Shiv Sena split appears to be responsible for this fresh crisis in the state, with a section of the Nationalist Congress Party (NCP) now opting to join hands with the BJP.

Mass resignations by legislators to force a fresh election, partisan action by governors ever ready to dismiss or swear in opposition governments, and equally partisan speakers refusing to decide on disqualifications within specific timeframes have also made a mockery of the 10th Schedule.

Defections have often been justified on grounds of ideology, development of the state and public interest, besides ‘irreconcilable differences’ with the party or the party leadership. However, curiously, the NCP MLAs who walked out this week with Ajit Pawar and joined hands with the BJP in Maharashtra continue to swear allegiance to both the party and the party president, Sharad Pawar.

The rebels continue to display the portrait of Pawar Sr, while claiming that there has been no split in the party! Sharad Pawar, meanwhile, has expelled the nine ‘NCP MLAs’ who have been sworn in as ministers in the BJP government! He has said that ideologically he and his party oppose the BJP and hence there was no question of aligning with the BJP government.

The rebels have sought to argue that since the NCP had no problem aligning with the Shiv Sena, there should be no ideological problem aligning with the BJP. Indeed, Ajit Pawar and some of the more prominent NCP rebels have pleaded that they have switched sides motivated by not selfinterest but by public interest, inspired by the ‘development work’ done by the prime minister.

The pompous and self-righteous justifications can scarcely gloss over the Constitutional impropriety. The NCP had campaigned against the BJP in the election, and joining hands with the BJP after the election is a betrayal of the mandate given by the people. The controversy will eventually be decided politically in the elections and legally in the court.

But ironically, the BJP, which is the beneficiary of the splits in both the Shiv Sena last year and in the NCP this time, can smugly sit on the sidelines and claim to have played no role in the ugly trade-off. That is another weakness in the antidefection law that needs to be addressed.

The Supreme Court has in the past suggested that Parliament should explore the possibility of entrusting decisions on defections to a tribunal, to make decisions more impartial. However, Parliament is unlikely to take any initiative to form one, because all political parties benefit from the ambiguity in the law and the partisan behaviour of speakers.

Enough time has been lost in trying to make the anti-defection law work. It is time for the Supreme Court to lay down, once and for all, the procedures for ‘mergers’ and, if necessary, even interpret the 10th Schedule to ensure that defectors, whatever be their number, should face either fresh elections or go through a cooling-off period before accepting further ministerial berths.

Above all, the court must lay down the law so that mergers can only be decided by political parties, not interested legislators.