Anti-Defection Law: A Tunnel Of Darkness?

The 52^nd amendment (1985) sought to regulate MLA trading and maintain a balance between the sanctity of the people's vote and the freedom of choice, expression and dissent of an individual. As legislators were quick to locate loopholes and engineered splits, the 91^st amendment (2003) was brought in to tighten the loose bolts. This brought in the drizzle of resignations by elected MLAs to avoid disqualification and circumvent defection. Consequently, we witnessed by-elections for filling up of man-made unnatural vacancies. To some extent, this could be unobjectionable as the MLA has to obtain a fresh mandate due to the switch over. This is a reasonably fair anti-dote against widespread defections. It also respects the sanctity of the vote and extracts the price from the MLA for shifting loyalties. However, the reason for resignations continue to be defection and lust for power rather than any dissent or resentment on public issues or causes.

It looked that defections were proving to be a costly affair, till the time the legislators with a plying Speaker abused the merger clause enunciated in Section 4 of the Tenth Schedule. To reproduce the provision for reference-----

Disqualification on the ground of defection not to apply in case of merger:

• A member of a House shall not be disqualified under sub-paragraph (1) of paragraph (2) where his original political party merges with another political party and he claims that he and any other members of his original political party------
• Have become members of such other political party or as the case may be, of a new political party formed by such merger or
• Have not accepted the merger and opted to function as a separate group
• The merger of the original political party of member of a House shall be deemed to have taken place, if and only if not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

DETAILING THE 'MERGER' CLAUSE

It implies from the reading of Section 4 that the provision was not to legalise splits of the legislature party concerned as mergers. This provision also does not state a stand-alone criteria for the valid merger of the legislature party.

The said provision is to protect the elected representatives belonging to the original political party from being disqualified in case of merger of their original political party and to provide them the freedom either to be a part of the merger or to maintain their separate status in the House. In case, the MLAs become part of the merger, then it is imperative that the valid merger would be only if not less than two-thirds of the legislature party agree to such merger. The necessary condition for a valid merger to get the protection of the anti-defection law is the split/merger of the original political party into any other political party or a new political party as the case may be. The not less than two-thirds canon is the sufficient condition for the merger of the legislature party. The merger of not less than two-thirds of legislature party into any other political party or constitution of a new political party has no legal standing without the necessary condition being satisfied.

It would be travesty to assume that the original political party on whose symbol the candidate contested and got elected as the MLA has given a blank cheque to their MLA to encash it with any other political party. It is disastrous to conclude that a political party stands merged into any other political party on the one and only basis that their elected MLAs have agreed to the same. Such a reading is not only illogical but impermissible as it embarrasses the public image and popularity of the political party along with undermining public confidence in it.

UNSPEAKING SPEAKER

Let us peep into the two so-called mergers in Goa Assembly.

The first happened in March, 2019 where two MLAs out of the three of the Maharashtrawadi Gomantak Party (MGP) rebelled, merged the MGP into the BJP. Both were awarded ministerships and one was elevated as Deputy Chief Minister. The Speaker opened the chamber at mid-night and accepted the split as merger. A disqualification petition is pending and gathering dust before the Speaker.

Recently, ten Congress MLAs give a one page communication to the Speaker of the Goa State Assembly that their original political party has merged with the BJP. Within seconds, under the directions of the Speaker, the Legislature Department provides for seating arrangements to the ten MLAs as was done in the case of the earlier two MGP MLAs claiming to have merged along with the treasury benches. In other words, the Speaker has decided through the conduct that the ten people's representatives in the Assembly are belonging to a political party on which they had not contested the election and returned as MLAs to the House. This decision should in fact be presumed to be coming in the domain of the exercise of quasi-judicial power by the Speaker and the scheme as laid down under the Tenth Schedule of the Constitution. If the Speaker had made any other separate seating arrangements for the group of ten, it could have been presumed to be an interim determination, pending the application of mind on whether the Congress party has merged and whether the same constitutes a valid merger.

In the instant issue, the Speaker has gifted the new badge to these ten MLAs and identified them as BJP MLAs on the declaration made by them. This is done without following judicial process of even a semblance of fair hearing. It is as automatic as a button to switch the lights 'on' or 'off'. The non-application of mind is perfectly demonstrated. The direction of the Speaker conclusively means that the Speaker has recognised the merger. This determination by the Speaker flows from the quasi-judicial power entrusted in the authority under the Anti-Defection Act. As such, these directions of the Speaker should be open for judicial review before the Court and cannot be camouflaged as coming under the non-justiciable legislative area.

THE JUDICIAL KNOT

It is an established precedent that the Speaker as the Head of Legislature and being a constitutional authority is not amenable to the jurisdiction of the Courts. However, this applies in respect of the conduct of legislative business where the Speaker is supreme and final authority. However, in areas wherein the Speaker is expected to function as a quasi-judicial authority under the Tenth Schedule, it would definitely invite judicial review and the Office of the Speaker cannot claim any special privilege. The pith and substance in both the issues falls in the purview of the Tenth Schedule and the order of the Speaker making the seating arrangement along with the Treasury Benches is actually a determination that the MGP and the Congress party has merged into the BJP and that the merger is valid. The Speaker might not have said it explicitly in words. The implied decision is loud and clear and nothing different can be construed from the same.

The Anti-Defection law is clear that the question of disqualification or otherwise under the Tenth Schedule is to be decided by the Speaker. The Courts have only the power of judicial review and any a priori intervention is ruled out. A petition for disqualification of the two MGP MLAs is pending before the Speaker. The question which needs a fresh look is whether the Speaker has already decided on the issue by the set of actions and directions and stamped that the MLAs have not incurred any disqualification.

Take the reverse situation. Suppose, in the same speed the Speaker does not consider the communication of merger from the rebel MLAs as valid and disqualifies them from being members of the House in the absence of any petition of disqualification? Under such a situation, it is most likely that the Courts would grant interim stay on the order of the Speaker, pending the final disposal of the appeal by the aggrieved. Using the same logic, it should be read that the Speaker has ruled on the validity of the merger and that the rebel MLAs have been qualified as BJP MLAs and they cease to be the MLAs of the original political party on which they got elected. The Speaker through the conduct has consented to the changed composition of the House, which means there is nothing to be called interim. Under this backdrop, the Courts need to entertain the aggrieved from the Order of the Speaker, as the same is a final 'unspeaking' order without following the principles of natural justice as required from any officer acting judicially. If the Speaker had adopted any other option, then probably it could have been considered as an interim direction.

The hands-off approach of the Courts under the canon of the supremacy of the Speaker being the constitutional authority is in order in respect of all legislative process and work. Judicial encroachment would be an excess on the Constitution. However, the same cannot be appreciated in issues wherein the Speaker deals with judicial issues wherein the judicial process is expected. The party interests and political bias cannot be totally disassociated from the Speaker. It is here wherein the Courts need to step in on case to case basis to maintain the aims and objects of the anti-defection law in letter and spirit. The current affront on the anti-defection law through the abuse of the provision of merger with absolutely no split in the original political party calls for the immediate intervention of the Courts. The provision of merger was inserted in the Tenth Schedule to provide for genuine dissent resulting in splits in political parties and the consequent need to grant protection to the elected representatives in case of such eventuality. The object of the provision was not for MLAs to engineer defections for greed of power and office and be protected under the clause of merger. It was to save the MLAs from disqualification in case of splits or mergers of political parties. Unless the higher judiciary intervenes and lays down guidelines for the quasi-judicial authority, the Speaker's action or inaction would only foster unconstitutionality and fraud on the Tenth Schedule.

With the Office of the Speaker becoming partisan, the obedience to the anti-defection law is proving foolish and disobedience pulls in profits for the MLAs. With all the aura of being a constitutional authority and the 'emperor' of the Legislature, the incumbent Speaker sits in the Chair with the false teeth provided by the political party to whom he belongs. The Speaker enacts a drama of biting but causes no hurt.

The anti-defection act is caught up in this quagmire of a Speaker who puts the party interests first and the higher judiciary keeping the hands-off quoting precedents and conventions. Unless the Courts darken and deepen the provisions of the anti-defection law in respect of merger of political party, the law will continue to be a sword with flat unsharpened blades. The Speaker has kept the law in the tunnel shrouded in darkness. Without intervention of the higher judiciary there seems to be no light at the end of this tunnel.

Author is an Ex-State Election Commissioner, Goa State.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]