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

February 25, 2023

Context:

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”.

About Maharashtra Political Controversy Cases:

These cases arose out of the events in June last year, when the ruling Maha Vikas Aghadi (MVA) coalition (the Shiv Sena, the Nationalist Congress Party and Congress) lost power after an internal splintering of the Shiv Sena party.

The Tenth Schedule, Past and Present:

The Tenth Schedule was introduced in 1985 to check unprincipled floor-crossing by legislators who were lured by money, ministerial berths, or threats.
The Schedule stipulated that legislators who voted against the party whip would be disqualified from the house.
The Tenth Schedule empowered party leadership against the legislative backbench, and weakened the prospect of intra-party dissent.
- However, the working of the Tenth Schedule has been patchy in recent years, with governments being toppled mid-term after a set of ruling party members turn against it.
Politicians have adopted various stratagems to do an end-run around the anti-defection law, including mass resignations to force a fresh election, partisan actions by State Governors, and equally partisan actions by Speakers.
Resort-politics has also emerged as a way for party leaders to hold their flock captive within expensive holiday resorts to prevent the other side from getting at them.
In effect, the Tenth Schedule has been reduced to a nullity, and governments without clear majorities are vulnerable to being toppled in this fashion.

The Court has a challenging task:

The Supreme Court plays a crucial role in adjudicating disputes over government formation and toppling.
- Such cases involve various constitutional functionaries, but the Court must maintain an institutional distance and adjudicate according to legalities.
Despite multiple judgments on anti-defection, government toppling remains frequent.
Loopholes in Supreme Court judgments and the anti-defection law are partly to blame.
The Court’s judgment in the Karnataka political controversy effectively sanctified resignations as an end-run around the anti-defection clause.
The Maharashtra political controversy presents an interesting case study, where the Court directed a floor test and allowed rebel MLAs to vote, leading to the downfall of the government.
The new government was swiftly sworn in and appointed its own Speaker, creating a fait accompli with respect to pending disqualification petitions.
The Court’s orders were interim in nature, and no reasons were provided.

In Perspective:

The current situation in Maharashtra highlights the potential consequences of poorly thought-out judicial interventions in government toppling cases.
The Supreme Court’s previous orders in this case, which included staying the Deputy Speaker’s hand and directing a floor test, allowed “rebel MLAs” to vote and bring down the government.
The orders were “interim” in nature and did not provide any reasons, which further complicated the situation.
The correctness of these orders is now being considered by a five-judge Bench, but the consequences of these orders have already had an impact on the Tenth Schedule and government stability.
If it is held that a Speaker cannot decide a disqualification petition while under a notice for removal themselves, and that a floor test can be ordered in the interim, this could leave rebel MLAs free to bring down the government without consequence.
It is unclear how the Supreme Court will resolve the Maharashtra political controversy.
- The Court’s decision will be judged by history.
The use of money, threats, and inducements to influence MLAs is a well-known reality.
The Court’s ruling can add a constitutional dimension to government formation and toppling.
However, the Court’s judgment could also make toppling governments easier for those with resources.
Only time will reveal the impact of the Court’s decision.