The anti-defection law — political facts, legal fiction

News: Recently, The Supreme Court granted time to dissident legislators in the Maharashtra Assembly to reply to the Deputy Speaker’s notice under the anti-defection law. The political crisis in Maharashtra, and many others before it, remind what the Tenth Schedule can and cannot do.

What is anti-defection law?

Paragraph 4 of the Tenth Schedule 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.

An “original political party” means the political party to which a member belongs (this can refer to the party generally, outside of the House).

A party shall be “deemed” to have merged with another party if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

What are the challenges associated with Paragraph 4 of the Tenth Schedule?

Firstly, Paragraph 4 does not clarify whether the original political party refers to the party at the national level or the regional level.

Note: The Election Commission of India recognises political parties based on the national and regional levels.

Secondly, In most cases, there is no factual merger of original political parties at the national (or even regional) level. A legislature party can be deemed to be a merger of political parties, even if there is no actual merger of the original political party with another party.

Hence, the deemed merger seems to be creating a “legal fiction.”

Thirdly, Defection gets easier in smaller legislative assemblies, where even a sole member can account for two-thirds of the legislature party’s strength to cross the floor without attracting disqualification.

What should be done?

Deletion of Paragraph 4 from the Tenth Schedule: Both the Law Commission in 1999 and the National Commission to Review the Working of the Constitution ((NCRWC) in 2002 made this recommendation.

An academic revisiting of the Tenth Schedule by the Supreme Court, to guide future use of the anti-defection law should happen sooner.

Source: The post is based on the article “The anti-defection law — political facts, legal fiction” published in “The Hindu” on 30^th June 2022.