A case that scans the working of the anti-defection law

• A five-judge Bench of the Supreme Court of India is presently hearing a set of cases popularly known as the “Maharashtra political controversy cases”.
• Recently Election Commission of India (ECI) ordered that Eknath Shinde’s faction is entitled to the Shiv Sena party name and symbol.

The Tenth Schedule, past and present

• The anti-defection law (ADL) was introduced into the Constitution via the Tenth Schedule, in 1985.
• Its purpose was to check increasingly frequent floor-crossing; lured by money, ministerial berths, threats, or a combination of the three, legislators were regularly switching party affiliations in the house.
• The Tenth Schedule sought to put a stop to this by stipulating that if any legislator voted against the party whip, he or she would be disqualified from the house.
• This empowered party leadership against the legislative backbench, and weakened the prospect of intra-party dissent.
  • Tenth Schedule viewed this as an acceptable compromise in the interests of checking unprincipled floor-crossing.
• In the last few years, there have been innumerable instances of governments being “toppled” mid-term after a set of the ruling party or coalition’s own members turn against it.

The Court has a challenging task

• Disputes over government formation and government toppling invariably end up before the highest court.
• The Court has to adjudicate the actions of a number of constitutional functionaries: Governors, Speakers, legislative party leaders, elected representatives, many (if not all) of whom, to put it charitably, have acted dubiously.
• Court must maintain an institutional arm’s-length from the political actors, and adjudicate according to legalities, even as political actors in anti-defection cases do their best to undermine legality. This is a challenging task.

The Current Issue

• the Maharashtra political controversy presents an interesting case study.
• It began when a set of legislators from the Shiv Sena rebelled against then CM Uddhav Thackeray.
• The Deputy Speaker (there was no Speaker at the time) moved to disqualify the “rebels” who in turn moved the Court, arguing that there was a pending no-confidence motion against the Deputy Speaker
  • Therefore, as per the Supreme Court’s judgement in Nabam Rebia case, he was disqualified from deciding on the disqualifications while it was pending.
• The Supreme Court’s vacation Bench stayed the Deputy Speaker’s hand, but also directed a floor test.
  • The upshot of this was that the “rebel MLAs” were able to vote in this floor test, and voted to bring the government down.
  • The new government was swiftly sworn in (by the Governor), and appointed its own Speaker, thus effectively creating a fait accompli with respect to the pending disqualification petitions.
  • To top it all, the Supreme Court’s orders were “interim” in nature, and therefore, no reasons were provided.

Conclusion:

• The use of money and indeed threats and inducements of prosecution or immunities therefrom to “turn” MLAs is a truth that is evident to all with the eyes to see.
• The Court’s judgement can act as a counterweight to political power, and infuse a dose of constitutionalism into the politics of government formation and toppling.
• But equally, the Court’s judgement could make toppling governments even easier for those with the means to do so.