Maharashtra Political Crisis : Supreme Court's Call For Strengthening Anti-Defection Law Becomes Relevant Again

In the wake of the political crisis unfolding in Maharashtra, certain remarks made by the Supreme Court regarding the emerging trend of poaching of legislators and engineering of rebellion to destabilize elected governments assume relevance.

The Court's remarks came in the cases related to Karnataka and Madhya Pradesh, which witnessed scenes of a group of MLAs within the ruling coalition announcing a sudden rebellion, followed by the rebel MLAs remaining incommunicado and confining themselves in locations (often resorts) in other states and the government collapsing after falling short of required numbers.  Similar scenes are playing in Maharashtra as well, with the rebel leader Eknath Shinde and his supporters remaining untraceable before being found in Gujarat. During the wee hours of today, the rebel MLAs were taken to Assam by flight.

Shinde told the media that he has the support of 40 MLAs. If the claim is true, the rebels will be able to escape the risk of disqualification under the Tenth Schedule of the Constitution on merger with another party. Because, a merger with not less than 2/3rd of the members of the legislative party is not regarded as "defection" as per Section 4 of the Tenth Schedule (Shiv Sena has 55 members and the 2/3rd figure will be 37).

The MLAs can also exercise the option of resigning, and the Speaker has no discretion to reject the resignation. As per the Supreme Court's ruling in the Karnataka MLAs case(2019), the Speaker cannot inquire into the motive of the resignation and cannot reject the same saying that it is made out of political pressure. In that case (Shrimant Balasaheb Patil vs Hon'ble Speaker, Karnataka Legislative Assembly), the Court held that the Speaker can only examine if the resignation was "genuine" and "voluntary". "Genuine" means if the resignation letter is authentic and not forged. The Court further held that "when a member is resigning on political pressure, he is still voluntarily doing so".

Court expresses concerns about "horse trading"; Calls for strengthening 10th schedule

In the same judgment, expressing concerns about the trend of "horse trading", which denied citizens stable governments, the Court called for strengthening the tenth schedule.

The judgment authored by Justice NV Ramana stated :

"...political parties are indulging in horse trading & corrupt practices due to which citizens are denied of stable governments. In these circumstances, the Parliament is required to re-consider strengthening certain aspects of the Tenth Schedule ,so that such undemocratic practices are discouraged".

Law needed to address poaching of legislators : SC in MP Case

In the 2020 case relating to Madhya Pradesh political crisis (Shivraj Singh Chouhan v Speaker, Madhya Pradesh Legislative Assembly), the Supreme Court made stronger observations against the trend of poaching of legislators.

"The spectacle of rival political parties whisking away their political flock to safe destinations does little credit to the state of our democratic politics.It is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics", the judgment authored by Justice DY Chandrachud stated.

Terming such practises of poaching, political bargaining and horse-trading as 'burgeoning evils', Justice DY Chandrachud observed that breakdown in the composition and allegiances of the political party due to private allurements offered to members is being increasingly seen.

"An underlying assumption of the anti-defection scheme outlined in the Tenth Schedule of the Constitution is that the political party is the defined political unit which the Constitution recognises. Where we increasingly see a breakdown in the composition and allegiances of the political party due to private allurements offered to Members as opposed to public policy considerations, the law may have to evolve to address these burgeoning evils", the judgment stated.

In the Kihoto Hollohan case, the Supreme Court said that the tenth schedule intends to deal with "unprincipled defection which is a political and social evil". However, there are certain loopholes which allow defecting legislators to get away. One is the route of resignation which is adopted to evade disqualification.  While the Supreme Court held  in the Karnataka MLAs case that the resignation will not efface the effect of disqualification already incurred, there is no remedy against legislators choosing to resign only on account of a lucrative offer or threat from another party. The Court's reasoning that resignation even on account of such political pressure is to be regarded as voluntary is problematic. This interpretation given to "voluntary" may require a revisit.

Another 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. In the Karnataka MLAs case, the Supreme Court held that Speaker has no power to disqualify a defected member till the end of the term of the assembly. This can result in a mockery of the democracy, as the defected members can return to the same assembly on a different political ticket. This gives a premium for political opportunists and turncoats.

If defection is a "social and political evil", then there must be a disqualification for a particular term of years, as prescribed in the Representation of the Peoples Act for corrupt electoral practices or conviction in the specified offences.