Anti-defection law

Anti-defection law

Context:

• The crisis in Maharashtra and even earlier instances are grim reminders of what the Tenth Schedule can and cannot do.

Law on defections, ‘mergers’:

• Instances of floor crossing have long gone unchecked and unpunished. In part, this can be attributed to the exemption given to mergers between political parties which facilitate bulk defections.
  • In 2019, MLAs in the Goa Legislative Assembly from the Indian Nation- al Congress (INC) and the MaharashtrawadiGomantak Party (MGP), crossed over to the Bharatiya Janata Party (BJP).
  • The Speaker of the Assembly as well as the Goa Bench of the Bombay High Court dismissed the pleas seeking dis-qualification of these MLAs.
  • As  MLAs formed two-thirds of their respective legislature parties, disqualification under the Tenth Schedule was not possible.
  • In other words, there was a “deemed merger” of the INC and the MGP with the BJP.
• The second paragraph of the Tenth Schedule allows for disqualification of an elected member of a House if such member belonging to any political party has voluntarily given up membership of their party, or if they vote in the House against such party’s whip. 

Paragraph 4 of Tenth Schedule 

• Paragraph 4 creates an exception for mergers between political parties by introducing three crucial concepts
  • — that of the “original political party”, the “legislature party”, and “deemed merger”.
  • A “legislature party” means the group consisting of all elected members of a House for the time being belonging to one political party,
  • whereas an “original political party” means the political party to which a member belongs (this can refer to the party generally, outside of the House).
• Interestingly, Paragraph 4 does not clarify whether the original political party refers to the party at the national level or the regional level, despite the fact that, that is how, the Election Commission of India recognises political parties.