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”. 

• This case raises certain fundamental issues about the working of India’s “anti defection law”

About Anti Defection Law:

• It was introduced into the Constitution via the Tenth Schedule, by 52nd Amendment Act, 1985. 
• The Tenth Schedule was introduced to curb the growing trend of legislators frequently changing party affiliations in India. 
• This was often due to financial incentives, ministerial positions, or threats, which resulted in the collapse of governments.
• 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. 
• It empowers party leadership and weakens the possibility of intra-party dissent. 
• However, it is viewed as an acceptable compromise in the interest of preventing unprincipled floor crossing.

Exceptions in Law:

• The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. 
• In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

Issues in implementation 

• Rise of resort politics: There have been innumerable instances of governments being “toppled” mid­term after a set of the ruling party or coalition’s own members turn against it. 
  • This is power politics and no high minded expression of intra­-party dissent.
• Strategies to bypass the anti defection law: Recent examples involve

1. 1. Mass resignations (instead of defections) to force a fresh election
   2. Partisan actions by State Governors (who are nominees of the central government) with respect to swearing in ceremonies and the timing of floor tests
   3. Equally partisan actions by Speakers (in refusing to decide disqualification petitions, or acting in undue haste to do so).

Challenges Faced by the Supreme Court in Adjudicating Government Toppling Cases:

• Adjudicating Dubious Actions of Constitutional Functionaries:

• • The Court has to adjudicate the actions of various constitutional functionaries, including governors, speakers, legislative party leaders, and elected representatives, many of whom have acted dubiously. 
  • However, the Court cannot presume dishonesty and must maintain an institutional arm’s length from political actors while adjudicating according to legalities.

• Upholding Legalities Despite Undermining by Political Actors:

• • Political actors in anti-defection cases do their best to undermine legality, making it challenging for the Court to uphold legalities.

• Inability to Prevent Frequent Toppling of Governments:

• • Despite multiple substantive judgments on anti-defection, the toppling of governments remains as frequent as ever. 
  • While some loopholes may be due to wily politicians finding ways around Supreme Court judgments, some of these loopholes were easily foreseeable at the time but not addressed by the Court.

Key highlights of the Judgement in Nabam Rebia case 2016

• A Governor cannot employ his “discretion”, and should strictly abide by the “aid and advice” of the Cabinet to summon the Assembly for a floor test.
• The Governor can summon, prorogue and dissolve the House only on the aid and advice of the Council of Ministers with the Chief Minister as the head. 
• Article 163 of the Constitution does not give the Governor a “general discretionary power to act against or without the advice of his Council of Ministers”.
• Governor’s discretionary powers are limited to specified areas like giving assent or withholding/referring a Bill to the President or appointment of a Chief Minister or dismissal of a government which has lost of confidence but refuses to quit, etc.

Reforms needed in Anti Defection Law: 

• Dinesh Goswami Committee on Electoral Reforms (1990):

• • Disqualification should be limited to cases where
    •  (a) a member voluntarily gives up the membership of his political party,
    • (b) a member abstains from voting, or votes contrary to the party whip in a ofmotion  vote of confidence or motion of no-confidence.

• • The issue ofdisqualification should be decided by the President/ Governor on the advice of the Election Commission.

• Law Commission (170th Report, 1999):
  • Provisions which exempt splits and mergers from disqualification to be deleted.
  • Pre-poll electoral fronts should be treated as political parties under anti-defection law.
  • Political parties should limit issuance of whips to instances only when the government is in danger.

News Source: The Hindu