'Group Defections' In Name Of Political Parties' Split & Merger Betray Voters: PIL In Bombay HC Against Para 4, 10th Schedule To Constitution

The PIL, filed by Meenakshi Menon, founder trustee of NGO Vanashakti, argues that Paragraph 4 of the 10th Schedule of the Constitution allows legislators to defect and breach their social contracts with the voters, who vote based on manifestos of political parties.

“representative democracy is followed in India where people elect their representative for fixed tenure to manage the affairs of the state on their behalf. It is a social contract where the citizens delegate their right to governed themselves on the consideration of particular manifesto based on particular political and economic philosophy. By enabling the elected representatives to defect in group by way split is clear breach of the contact the elected representatives enter into with the voters. This goes to very root of democracy hence, it is contrary to the THE BASIC STRUCTURE of the constitution”, the petition contends.

The matter was mentioned before the bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor today. The court asked Advocate Ahmed Abdi to mention the PIL for circulation again after removing office objections.

The PIL, filed through Advocate Eknath Dhokale, highlights that the twin objective of the anti-defection law, aimed at combating political corruption and administrative uncertainty, are not being met due to the alleged misuse of provisions allowing mergers.

“The experience has shown time and again that on both the fronts the provision enabling 2/3 members to split and merge with any other political party has instead of remedy these maladies have aggravated them further. The money changing hands have immensely increased and it has led to more political instability. It is pathetic to see that the 2 legislatures are being traded like stock of share market which reduces the democracy without democratic value and culture to a hypocrisy. Poor voters have no say. They are mere silent spectator with a sense disillusionment with system”, the petition contends.

As per Paragraph 4, a member of a legislature shall not be disqualified on ground of defection if his original political party merges with another political party and members of the original party along with him join the new party formed by the merger or choose to remain a separate group. After the merger, the new party or the separate group will be considered as their political party, as per the provision. At least two-third members of the original party in the legislature must agree for the process to be considered a merger.

The petition argues that this provision allows legislators who defect from their original political party to continue participating in the legislature and hold constitutional posts until the issue of their disqualification is finally decided. This, the petition argues, goes against the principles of democracy, fairness, and accountability.

The PIL refers to the Maharashtra political crisis in 2022 when Chief Minister Eknath Shinde, along with a group of Shiv Sena MLAs, rebelled against then-Chief Minister Uddhav Thackeray leading to the dissolution of the Maha Vikas Aghadi government. The petition states that Maharashtra has been grappling with intense political heat since the preceding assembly elections.

The petition contends that group defections, allowed under Paragraph 4 of the 10th Schedule, have become ingrained in the political culture and undermine the trust of voters who cast their ballots based on political ideologies and manifestos. The petitioner contends that these defections contribute to public alienation from the electoral process, as tax-payer funds are spent on elections without sufficient accountability.

The petition cites the Maharashtra political crisis to illustrate the potential consequences of group defections and their impact on political stability and voter disillusionment.

While the Constitution (Ninety-first Amendment) Act, 2003, omitted the defence of split of political party in defection cases, Paragraph 4 is still a window for defection in the name of merger by two third of the members in the house, the petition argues. The petition contends that the alleged abuse of anti-defection law undermines the principles of democracy.

The PIL also highlights that the Law Commission in its 170th Report, 1999 has recommended that the provision of split and mergers be deleted as an exception from the provision of disqualification due to defection.

Thus, the petition seeks the court's declaration that Paragraph 4 of the 10th Schedule is ultra vires the Basic Structure of the Constitution, and further, that legislators defecting from their original parties should not participate in house proceedings or hold constitutional posts until the issue of their disqualification is conclusively decided.