Anti-Defection Law: The keeper of Stable Government

Reading time : 10 minutes

Introduction:

The world has witnessed the rise and fall of many empires that once were the most powerful among others in their respective periods. It is evident from the history pages that the greed of power can turn a loyal servant into a cunning conspirator. The cause for Scindias betraying Rani Laxmi Bhai of Jhansi, Mir Sadiq betraying Tippu Sultan, and many such events is power. This tradition, which has ruined many empires still exists, but in the formal name of ‘Defection’. Black’s law dictionary defines defect/defection as “To desert from duty or obedience; esp., to leave one’s own country or group to go to or join opposing one”[1]. This term can be said as an equivalent of the term ‘Floor-Crossing’ which allows a person to change from one political party to another. This has been a major trend in recent years, which has uprooted the basic principle of democracy. The elected representatives in thirst for power switched their loyalties from time to time which is never a positive or developing sign for a country. This is not a new trend, but an old one which is also known to the older democracies of the world. Prominent political stalwarts like William Gladstone, Joseph Chamberlain, Winston Churchill also changed their parties and at one time or the other. There have been many defections in prominent countries like the United States of America, India, the United Kingdom, Russia, Australia, etc. In light of this issue, no other nation has passed any laws restricting defections, except 4 nations of South Asia i.e., Sri Lanka in 1978, India in 1985, Pakistan in 1997, and Nepal in 1997. But the implementation of these laws in all 4 countries has been proved ineffective.

When the focus turns to India, which is regarded as the world’s largest democracy, there have been many defections, which has taken down many state governments and even the central government was not an exception to this list.  Modern-day politics has seen a government formed in broad daylight being destroyed the next day or the same night. The foundation of democracy is on the verge of a collapse if the defection and thirst for power take on the people elected representatives. The Indian Constitution, which was created with the primary aim of protecting the law and order of the country and to help smooth administration along with justice and stability was not in a position to counter these defections initially as the makers of the constitution never expected an unhealthy practice in the near future. It was later added to the constitution by the 52nd amendment in 1985 and is popularly known as the ’10th Schedule’. But the law has some flaws which have to be rectified to be rightfully regarded as ‘The keeper of a stable government’. Before this paper introduces the flaws, knowledge of history and the root cause for introducing such a law by amendment is very important to understand the present as said by one of the prominent American astronomers ‘Carl Sagan’[2].

Historical background:

India, which the world’s largest democracy did not have its constitution until 1950. The members of the constituent assembly who are regarded as founding fathers of the constitution never imagined that the Indian constitution which was framed considering constitutional morality would need an amendment to curb the “evil of political defections”[3]. The first president of independent India, Dr. Rajendra Prasad had given a speech that can be called as an alarm to those politicians and people. He said “If the people who are elected are capable and men of character and integrity, they would be able to make the best even from a defective constitution. If they are lacking in these, the constitution can never help the country”[4]. These were the painful words by the then-president about the importance of character an elected representative must-have. Indian politics had seen many defections right from the pre-independence period, but not as much as it saw in the year 1967. The year 1967 can be marked as a black period in India, as the birth of unethical practices of horse-trading began and led to an era of political instability. During that time, each and every political party wanted to gain power and hence, came together in the form of a coalition. Often these types of governments were heterogenic i.e. The parties that came together had opposite ideologies. These governments never lasted long; they just fell in quick succession. The reason for any ruling state government to lose its power are the dissatisfied and disgruntled legislators who were power-hungry. The legislators who changed the parties were welcomed with open arms by other parties which gave rise to an unhealthy trend of attracting an elected representative offering him a berth in the cabinet. The new government formed had many permutations and combinations[5] to protect itself from losing power.

It is a notable fact that there have been sixteen general elections and between the fourth and fifth general election, in other words between the year 1967 to 172, there were among 4000 elected representatives totally in India, in which there were almost 2000 cases of defections and counter defections. By the end of 1971, almost 50% of the legislators had changed their parties once or more for power. An example of the thirst for power by legislators- One MLA had changed his party five times to become a minister only for five days. The issue turned serious when there were series of incidents that toppled a ruling government with a comfortable majority. One such incident was the 3-time defection by MLA Gaya Lal, elected from the state of Haryana, who had defected 3 times in one day for power. The first step to tackle this was taken in the year 1968. A high-level committee was formed under the chairmanship of the then Home minister Y.B. Chauhan, who had described the defection as a “national malady”[6]. But the report of this committee was not enforced. In the year 1979, the first non-congress government under the Prime Ministership of Morarji Desai go destroyed due to group defection i.e., around 80 odd members switched their sides. This was not a full stop rather was a start for the downfall of state governments. The states of Karnataka, Bihar, Andra Pradesh, Uttar Pradesh, etc saw the rise and fall of governments. Considering all these incidents and rising public opinion, in the year 1985, the then Prime Minister Rajiv Gandhi placed a bill for restricting such acts in both Lok Sabha and Rajya Sabha and this was enforced as the law on 15th February 1985. But the implementation of these laws never stopped the defections but increased them from a single person to a group.

Constitutionality of the Act:

As soon as the general election results were declared in the year 1984, the then president Shri. Zail Singh, in his address to both houses of the parliament, informed that the government under the prime ministership of Shri. Rajiv Gandhi intended to introduce a bill that would restrict the evil political practice of defections. On 24th January 1985, the anti-defection law was added to the constitution through the 52nd constitutional amendment. But as soon as it was proposed in the parliament, many objections were raised concerning the constitutionality of this law. But the bill got a majority and was passed even after considering the opposition. As soon as it became a law, the anti-defection law was brought before the court. The constitutionality of the act was challenged citing violation of fundamental rights and hence disturbing the basic structure of the Indian Constitution, the words defection, as well as dissent, had different meanings and the newly made law does not define this term specifically, and many more contentions. The high court of Punjab and Haryana had struck down the rules and declared that Paragraph 7 of the impugned law violated article 32 by barring the jurisdiction of courts and giving the presiding officer all the power. But when this was taken for appeal as per the request of the central government, each and every contention in different high courts were transferred to the Supreme court and all were connected. The Apex court, in subsequent judgments, passed the orders which deemed fit as per the contentions. Some of the landmark judgments are as follows:

  1. Kihoto-Hollohan v. Zachilhu[7]: The apex court in this judgment set aside the judgment passed by the High court of Punjab and Haryana which struck down the act citing that paragraph 7 violates the fundamental right to legal remedies. The court declared that Paragraph 7 can stand independently and vice versa and hence the act excluding paragraph 7 is valid. Paragraph 2 of the said act does not violate the constitution and hence is valid. Also, the question with paragraph 7 can be declared unsound and is rejected. Paragraph 6(1) and 6(2) that gives the power to the speaker to decide in this matter to curb the evil political defection is valid. This gave the anti-defection a certificate that declared the law not violating the constitution. 
  • Ravi S Naik v. Union of India[8]:  The apex court in this judgment had declared that the burden of proving the requirements mentioned under paragraph 2 of the 10th schedule is on the member who has incurred disqualification and also, the burden is on the member under paragraph 3, is o the member who claimed the split in the original party and also, it has laid down certain requirements to call an act as split. The court also ruled that the anti-defection laws were procedural in nature and is immune from judicial review if there are any violations of law. The judicial review can only happen in case of non-compliance with natural justice, mala fides, breaches of constitutional mandates.
  • G. Viswanathan v. Speaker, Tamil Nadu Legislative Assembly[9]:   The apex court through this judgment clearly laid down the law that an elected member shall belong to a party from which he contested for elections. Even if the party expels him, he would not cease to be the member of the house he has been elected for by the people. If an elected representative switches his loyalty to another part and moves in, then he is certainly disqualified on grounds of voluntary give up by the member.

There are many other cases like Jagadambika Pal v. Union of India[10], V. Mahachandra prasad Singh v. Chairman, Bihar Legislature council[11], etc which can be called a landmark judgment for the anti-defection law.

Conclusion:

As said earlier the aim of implementing the anti-defection laws was to prevent the evil practice of political defections. But the result of implementation was not expected. The defections started to increase even after the implementation of these laws. The elected members started to take advantage of lacunas in the said law and started to defect in groups rather than individuals. The recent examples of group defections evidently bring forward the defect in anti-defection law. The defection of 17 MLS’s in Karnataka led to the downfall of the coalition government formed by Janata dal (secular) and Congress, the defection of MLS’s in Madhya Pradesh led to the downfall of Kamalnath led Congress government, an attempt of bringing down the Ashok Gehlot led Congress government in Rajasthan can be seen as prominent examples which do suffice to agree that the anti-defection law hasn’t brought any discipline among the power-thirsty politicians. There is an issue with regard to the power of the speaker and the authority of the judiciary to intervene in the middle when a constitutional authority is exercising the power granted under the 10th Schedule. The flaws of the law need to be rectified and if not, in the near future, there may be a situation where the general elections that are held five years once, have to be held daily. Although the law was a good proposal for bringing stabilized administration and government, the law seems ineffective.   


[1] Black’s Law Dictionary

[2] “You have to know the past to understand the present”- said by Carl Sagan

[3] As stated in the Statement of Objections and reasons to amend the constitution (52nd Amendment) available at: https://legislative.gov.in/constitution-fifty-second-amendment-act-1985

[4] Concluding address in the constituent assembly- https://indialawyers.wordpress.com/2010/01/24/dr-rajendra-prasad-speech-as-president-of-constituent-assembly-the-day-the-constitution-of-india-was-passed/

[5] Subhash C. Kashyap, The Politics of Power, New Delhi, 1974

[6] Subhash C. Kashyap’s Anti Defection Law and Parliamentary Privileges, Universal Law Publication, , New Delhi, 3rd edition

[7] AIR (1993) SC 412

[8] AIR (1994) SC 1558

[9] AIR (1996) SC 1060

[10] JT 1998 (4) SC 319

[11] AIR (2005) SC 69

Author: Karthik Surya MR, 1st year BA LLB., Christ University, Bangalore

Editor: Kanishka VaishSenior Editor, LexLife India.

Law regarding political horse-trading in India

Reading time: 6-8 minutes.

After 15 months of ruling from its election in 2018, the Congress government headed by Kamal Nath in Madhya Pradesh collapsed as 22 sitting MLAs of the Congress resigned in support of Jyotiraditya Scindia who left the party earlier this month.

The question is what is the reason behind such mass resignations which decides the fate of elections bypassing people’s mandate? One can find the answers in ill practices that are adopted by various political parties in India. The opposite party tries to lure the legislators to act in a particular manner and do ‘bulk purchase’ of MLAs which results in Horse-trading.

What is ‘horse-trading’?

The expression “Aya Ram Gaya Ram” clearly points towards the situation of political Horse-trading in India. The term Horse-trading finds its roots back to 1967 when floor crossing and political horse-trading was at its zenith.  Horse-trading means when a political party tries to usher in members from the opposition party to realize the majority in the assembly and resort to unapproved techniques in doing so. The said party may offer financial benefits ministerial perks to lure opposing members.

It can be done in many ways such as either by wooing away as many legislators of any particular party as possible or by persuading the members to resign so that seats fall vacant. The benefit of this kind of practice is that such vacant seats aren’t counted for deciding relative strengths of parties and thus in this way, the balance can tilt in favor of another party.  

Though the acceptance of money by a legislator for doing any act on the floor of the house is not unconstitutional it is deemed to be highly unethical. The Cash for Query incident of 2005 reminds one of the influence of money and the extent to which legislators go to satiate their avarice.

Prevalence in India

The concept of Horse-trading in India started in 1967 when a legislator changed his party so frequently that folks called him Aya Ram Gaya Ram. He was a legislator of then Haryana Legislative Assembly who was elected on Congress ticket. He changed party thrice in a fortnight from Congress to Janata Party, back to Congress and then within nine hours to Janata Party again.

Since then, it has been observed numerous times in various state assemblies as well in Parliament. Some famous incidents are as follows: The coalition government of P V Narasimha Rao in 1993 was faced with a trust vote. The government managed to survive, with the backing from members of the Jharkhand Mukti Morcha (JMM) and the parting of Janata Dal (Ajit). The latter’s leader Ajit Singh himself withheld his vote. It was alleged that horse-trading had taken place to leverage the vote.

In 2019, the Congress government collapsed in Karnataka as at least 17 MLAs of the ruling party tendered their resignation and thus HD Kumaraswamy-led government found itself in the state of quandary and Yediyurappa of BJP party was crowned as the Chief Minister of the state. Such practice in Karnataka found a loophole in existing law where if any legislator resigns he can be re-elected as it is not covered under the purview of Anti-Defection Law.

The same technique of persuading MLAs for the resignation has been used in Madhya Pradesh recently.

Laws in India

The most important law to prevent horse-trading and widespread defection is Anti-Defection Law which is given under the 10th schedule of the Indian Constitution. It was inserted by 52nd Amendment in 1985 as a series of defections that happened after 1967 due to the increasing trend of forming coalition government which was formed of heterogeneous elements having very little or no ideological similarity. The schedule is connected to Article 102 and Article 191 of the Constitution which pertain to disqualification. This law aims to prevent defections and to ensure that legislators don’t switch parties for any personal benefits and also that they don’t violate the mandate of the respective party. Thus, it ensures party discipline.

This act prescribes the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature. A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. However, if at least two-thirds of the legislators leave the party to join another, they are not considered to have defected. The decision regarding disqualification lies with the Chairman or the Speaker of the House.

The law holds relevance because when a voter cast his vote for a candidate, he not only considers the candidate but also the party and the manifesto for which the candidate stands for. Hence, when the defection takes place it is the electorate that’s disappointed, making a mockery of democracy.

Landmark judgments

Earlier, the choice of the chair wasn’t subjected to the review by the courts. However, the Supreme Court in 1993, in Kihoto Hollohan V. Zachilhu held that this provision is unconstitutional as it seeks to take away the jurisdiction of the Supreme Court and High Courts and thus, now the decision is subject to judicial review. It simply means that the disqualification of a member can be challenged in a court of law.

In 1994 in the SR Bommai case, the SC had said, “There cannot be any presumption of allurement or horse-trading only for the reason that some MLAs expressed the view which was opposed to the public posture of their leader and decided to support the formation of the government by the leader of another political party … many (other) imponderables can result in MLAs belonging to even different political parties to come together. It does not necessarily lead to an assumption of allurement and horse-trading.”

Moreover, in 1994 in Ravi S. Naik v. Union of India, the Supreme Court has held that voluntarily giving up the membership is not the same as resigning from a party. The words “voluntarily giving up membership” connote a wider meaning. Inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party.

Conclusion

Crossing the aisle has been a part of India’s post-election trend ever since the first elections. However, the law on defection certainly has been able to curb the evil of defection to a great extent. But, of course, a very disturbing trend of legislators defecting in ‘groups’ to another party in pursuit of greener pastures is apparent. The recent instances of defection in state Assemblies and even in Rajya Sabha substantiate this.

The Parliament should take into consideration the important suggestions as recommended by various committees and other eminent persons and cork the loopholes in the law. The issue of disqualification should be decided by the President or Governor on the advice of the Election Commission as advocated by Dinesh Goswami committee. Law Commission in its 170th report in 1999 has suggested that Political parties should limit the issuance of whips to instances only when the government is in danger. Apart from Supreme Court advocate Sanjay Hedge has advocated that Anti-Defection Law has outlived its utility and a major amendment should be made such as anybody who resigns as a legislator or Parliamentarian should be barred from contesting election for at least six years.

Only by considering such recommendations, the Indian politics can completely do away with the ill practices of Aya Ram Gaya Ram and horse-trading and will be able to give teeth to the Tenth Schedule.

Author: Vijay Lakshmi from University Institute of Legal Studies, Panjab University, Chandigarh.

Editor: Tamanna Gupta from RGNUL, Patiala.

Anti-defection law

Reading time: 6-8 minutes.

Betrayal of a political party will definitely lead to political instability and serious confusion among the citizens and at the same time will also affect the confidentiality of various political parties. Our law-makers took this issue very seriously and introduced the Anti-defection law in the Indian Constitution in 1985. It came into force through the 52nd constitutional amendment and is contained in the Tenth Schedule.

Salient features of the Anti-defection law

The Fifty-second Constitutional amendment brought about changes in the articles 101, 102, 190 and 191 of the Indian Constitution and stated the provision under which legislators could be rendered disqualified on the basis of defection.

Disqualification

 a. If a member of a house belonging to a political party:

 – Voluntarily gives up the membership of his political party, or

– Votes, or does not vote in the legislature, contrary to the directions of his political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.

 b. If an independent candidate joins a political party after the election.

 c. If a nominated member joins a party six months after he becomes a member of the legislature.

Power to Disqualify:

 a. The Chairman or the Speaker of the House takes the decision to disqualify a member.

 b. If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.

Exception

Merger: A person shall not be disqualified if his original political party merges with another, and:

 – He and other members of the old political party become members of the new political party, or

 – He and other members do not accept the merger and opt to function as a separate group.

This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.

Ninety-first Constitutional Amendment Act, 2003: This amendment brought about some major changes in the exception to this law as prior to this amendment, the defection of one-third of the members of a political party would result in a merger. This amendment added a condition to this exception whereby at least two-third of the members of that party should agree to that merger. In addition to that it stated that the defected members shall give-up their legislative memberships and shall seek re-election.

Reasons for the enforcement

In 1967, long before this law came into force, a number of legislators were changing their political parties and were migrating to other parties. Part of the reason was that during that time, elections were held in the majority of the states and Congress had failed to form a government in almost all the states except Haryana. In the midst of all this chaos, a legislator from Hassanpur (Haryana) named Gaya Lal migrated from Congress to the United Front and after a few days returned back to Congress but within just nine hours of his return he went back to the United Front. This incident eventually led to coining of the popular quip, “Aaya Ram, Gaya Ram”.

This whole incident shows how important it was to implement this law in order to maintain stability and order and also putting restrictions on the freedom provided to all the legislators in order to avoid exploitation.

Constitutional basis of this law

Anti-defection law has been criticized of being violative of freedom of speech of the elected legislators and their right to have diverse opinions. It was also claimed to be violative of articles 105 and 194 of the Indian constitution.

This difference of opinions existing between the law-makers and the legislators was very clearly visible through the recommendations made by Dinesh Goswami committee, formed in 1990, which suggested that the disqualification shall be decided by the President or the Governor of the concerned state on the advice of the Election Commission.

This law was also contested through various lawsuits as well. In the case of Kihoto Hollohon vs. Zachilhu (1992), it was contested that the Tenth Schedule was in violation of the freedom of speech and expression of the parliamentarians and state legislators, to which the Supreme Court held that these allegation were not true and that the Tenth Schedule was constitutionally valid.

The above verdict was followed with approval in Ravi S. Naik vs. Union of India (1994) and G. Vishwanathan vs. Speaker, Tamil Nadu Legislative Assembly (1996) but these cases did not challenge the constitutionality of this law and were filed just to clarify certain confusions regarding certain provisions of this statute.

Advantages and disadvantages

Advantages

  1. It helped in decreasing the number of political party migrations by various legislators and thereby maintained political stability in the country.
  2. This  law also helped in assuring the various political parties that the various legislators associated with them would be loyal to them and were in support of the goals mentioned in their party manifesto.

Disadvantages

  1. This law has enabled the various political parties to easily get away from the responsibilities they hold towards their legislators and has discouraged them from holding varied opinions.
  2. This law goes against the democratic nature of our Constitution which grants to all the freedom of speech and a right to dissent.

Conclusion

This law has played a great role in giving a sense of security to various political parties by ensuring that their members would not be able to switch sides that easily but at the same time we cannot deny that it has in a way overpowered the whip and has resulted in less constructive debates between the legislators and party leaders.

This means that although this law has brought about various positive changes in the political arena but it still needs certain reforms. Firstly, this law should bring about clarity in its provisions like the phrase “voluntarily giving up membership”, as it can be comprehended in different ways by different people. Secondly, the decision given by the Speaker should be followed by judicial review. Lastly, the different political parties should resort to the issuance of whips only in extremely critical situations.

Author: Sukanya Singh from NMIMS, Mumbai.

Editor: Anna Jose Kallivayalil from NLU, Delhi.

Maharashtra Government formation: Anti-Defection angle

Reading time: 6-8 minutes.

The Maharashtra State Government Formation was nothing short of a rippling controversy. As our country witnesses an arc which can arguably be categorised as one of the most interesting times for our democracy, Maharashtra State politics and the Hon’ble Governor’s office got the taste of one of the most adverse situations Indian democracy has ever dared produce.

As the situation finally is hoped to be rested at Shri. Uddhav Thakeray holding office, with the position of the Hon’ble Chief Minister of Maharashtra, by virtue of his party, Shiv Sena, forming a post-poll alliance with the Indian National Congress along with the National Congress Party, forming an alliance by the name of “Maha Vikas Aghadi” (literally translating to Mega Development Frontrunners); the political scenario in Maharashtra can be said to be at a cool down stage and administration can finally continue by virtue of the status quo administration due process- or can it?

Procedure for the formation of Government:

The Maharashtrian State follows a Legislative Assembly based procedure when it comes to Government formation. For an absolute majority to be formed, a party is supposed to garner a grand total of 144 seats out of the 228 seats in the Legislative Assembly.

These seats can be procured by virtue of post-poll alliances, pre-poll alliances or by sheer single party majority. When the party/alliance gets the requisite seats for formation of government, it provides the letters of support to their respective Governor, who then invites the aforementioned party/alliance to form a Government with their respective candidates as Chief Minister.

After the government is formed, the Vidhan Sabha conducts a floor test which is supervised by the pro-tem (temporary)/permanent speaker and hence, a government is formed in the state of Maharashtra.

Background of this Issue:

This issue can be best explained through the chain of events demarcated by virtue of the time at which they took place.

21.10.2019: Elections to the Fourteenth Maharashtra Legislative Assembly were carried out.

24.10.2019: The Bhartiya Janata Party emerged as the Single Largest Party with 105 seats followed by the Shiv Sena emerging as the second largest party with 56 seats. The NCP emerged as the third largest party with 54 seats and the INC secured 44 seats.

09.11.2019: The Hon’ble Governor invited the BJP to indicate willingness to form the Government while giving it 48 hours to prove that it has the requisite majority.

10.11.2019: The BJP expressed its inability and declined to form the Government. Thereafter, the Hon’ble Governor, on the very same day, asked the Shiv Sena, to convey its willingness and ability to form the Government by granting it 24 hours to demonstrate its majority.

22.11.2019: The Maha Vikas Aghadi was announced at a press conference and it was further announced that it was unanimously agreed that Shri Uddhav Thackeray was to be named as Chief Minister.

23.11.2019: The Raj Bhavan, in a makeshift and hurriedly convened swearing-in ceremony, administered oath to Shri Devendra Fadnavis of the BJP as Chief Minister of the State and further to Shri Ajit Pawar of the NCP as Deputy Chief Minister.

26.11.2019: The Supreme Court announced their verdict and ordered for a floor test a very next day, on which followed the immediate resignation of Shri. Ajit Pawar, and Shri. Devendra Fadnavis.

3.12.2019: Uddhav Thakeray takes oath as CM of Maharashtra with the support of the Maha Vikas Aghadi.

Anti-Defection law:

This switching of party done by the MLAs of NCP including the Legislative Unit leader, Shri. Ajit Pawar begs the question, can this constitute Defection under the Anti – Defection law which was inserted into the Indian Constitution in 1985?

To answer that question, we must consider what constitutes as defection in general. The legislative intent of the Anti – Defection law was brought into place to curb voluntary giving up the membership of a party or disobeying the directives of the party leadership on a vote.

The Anti – Defection Law was inserted though the Tenth Schedule of the Indian Constitution for the purpose of disqualifying MLAs which acted unethically and against their Party’s principles.

The Law relating to this principle and issue at hand:

Even though the nature of the Anti-Defection law may seem as extremely straight forward, the law does come with a number of exceptions. For example, it does not disallow merger of parties provided that such merger has been authorized by the 2/3rds of the MLAs of the Party.

Hence, while relating it to this issue it is important for us to note that a possible defection case, if filed, would largely depend upon the number of MLAs that authorized such a move by Shri. Ajit Pawar. However, since the data on that is unclear, no conclusive statement can be made.

Moreover, it is also interesting to note the interpretations laid down by the Supreme Court in the cases of Ravi S. Naik vs Union of India (1994 AIR 1558) and G. Viswanathan v. The Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras (1996 AIR 1060).  

In these cases, it was held by the Hon’ble Court that the phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation. The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’.

However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct. In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.

A possible argument could be made that the actions done by Shri. Ajit Pawar could be in contravention with the constitutional principles laid down by the cases of Ravi S. Naik vs Union of India and G. Viswanathan v. The Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras.

Application of Anti – Defection Law “What experts think”:

Ajit Kumar Sinha (Senior Advocate) – “If it is more than a split and is by two-third or more, then it will be difficult to apply anti-defection law,” he said adding, “Disqualification does not apply in case of merger if it is by two-third or more.”

Vikas Singh (Senior Advocate) –  “Supposing in this case, the faction which claims to be real NCP, (objects to the former union), then a question may arise and the Election Commission will have to take a call which is the main NCP for the purpose of anti-defection law. This will also be a long-drawn process. Main NCP will be the one which has the majority of MLAs. Anti-defection law will apply. It does not matter whether MLAs have taken oath or not. This is all posturing up.”

Rakesh Dubey (Senior Lawyer and Constitutional Expert) –  “The anti-defection law has no impact at time of formation of the government. The government is always formed before the oath of MLAs and MPS. Later, somebody will have to move an application before the assembly speaker alleging defection, if any.”

Conclusion: A probable way forward

This case cannot be studied without drawing its obvious parallels to the B.S Yeddyurappa case of Karnataka (also known as the Dr. G. Parmeswara case). The most probable conclusion would be that, similar to that case, the defection petitions filed in the court, if filed, would not be fruitful.

The main thing to take into consideration here is that the MLAs under the Maha Vikas Aghadi have been procured through intense negotiations and deliberations and it could be possible, just like it happened in the Yeddyurappa case, that BJP would file for a No-Confidence motion in the house and win their Government back. Other than that, looks like the State of Maharashtra is all set for full term governance by the Maha Vikas Aghadi.

Author: Adhit Kulkarni from DES Law College, Pune.

Editor: Anna Jose Kallivayalil from NLU, Delhi.