Anti Defection Law | Bombay HC Seeks Attorney General's Reply On PIL Against Disqualification Protection To MP/MLAs In Event Of Political Parties Merger

The Bombay High Court on Wednesday issued notice to the Attorney General of India PIL challenging the exception from disqualification granted to MPs and MLAs under the anti-defection law in the event of their political party merging with another.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif Doctor sought the response of the Central government to the petition challenging paragraph 4 of the tenth schedule of the Constitution within 6 weeks and kept the matter for further hearing on February 7, 2023.

The PIL challenges the exception to legislators from “disqualification on ground of defection” in case of merger of political parties.

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. The petition contends that such defections undermine the fundamental structure of the Constitution, which upholds representative democracy in India.

“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 reads.

The PIL contends that the anti-defection law's objectives, aiming to combat political corruption and administrative uncertainty, are thwarted due to alleged misuse of provisions permitting mergers. The petition emphasizes that there is a negative impact of allowing two-thirds of members to split and merge with other political parties, leading to increased political instability and financial impropriety.

The PIL refers to the 2022 Maharashtra political crisis as an example of the consequences of group defections, asserting that such actions have become ingrained in political culture, eroding voter trust in political ideologies. The petition argues that group defections contribute to public alienation from the electoral process and lead to the misuse of taxpayer funds on elections without adequate accountability.

The PIL urges the court to declare Paragraph 4 of the tenth schedule ultra vires the Basic Structure of the Constitution. Additionally, the petition seeks a direction that legislators defecting from their original parties should be barred from participating in house proceedings or holding constitutional posts until their disqualification is conclusively decided. The PIL also highlights the Law Commission's 1999 recommendation to delete provisions related to splits and mergers as exceptions from disqualification due to defection.

Advocate Ahmed Abdi appeared for the petitioner.

Case no. – 14 PIL/53/2023 [Original]

Case Title – Meenakshi Menon v. Union of India

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