Context: Floor crossing by legislators is a common topic of discussion in India’s electoral politics. Despite the Tenth Schedule being inserted into the Constitution in 1985, the practice of legislators changing political parties during their term continues unabated in Indian legislatures.
The ‘anti-defection law,’ as it was commonly known, was intended to prevent legislators from changing political affiliations during their term in office.
The Maharashtra political crisis, like many others before it, serves as a grim reminder of what the Tenth Schedule can and cannot do.
Despite the law, why do floor crossings long go unnoticed and unpunished?
- This can be attributed in part to the exemption granted to mergers between political parties, which facilitate mass defections.
- The second paragraph of the Tenth Schedule provides for the disqualification of an elected member of a House if that member is a member of a political party and has voluntarily given up membership in that party, or if they vote in the House against the whip of that party.
- In Paragraph 4, an exception is made for mergers of political parties by introducing three key concepts: “original political party,” “legislative party,” and “deemed merger.”
- A “legislature party” is a group made up of all elected members of a House who are currently members of the same political party, whereas an “original political party” is the political party to which a member belongs (this can refer to the party generally, outside of the House).
- Interestingly, Paragraph 4 does not specify whether the original political party refers to a national or regional party, despite the fact that the Election Commission of India recognizes political parties in this manner.
So, how does Paragraph 4 approach mergers?
- The fourth paragraph is divided into two sub-paragraphs, a combined reading of which suggests that a merger can occur only when an original party merges with another political party and at least two-thirds of the legislature party agrees to the merger.
- Only when these two conditions are met can a group of elected members claim exemption from disqualification due to a merger.
Why does Paragraph 4 seem to be creating a “legal fiction”?
- However, Paragraph 4 is written in such a convoluted manner that it is open to multiple interpretations.
- According to the second subparagraph (of Paragraph 4), a party is “deemed” to have merged with another party if and only if not less than two-thirds of the members of the legislature party concerned agree to such a merger.
- Given that most original political parties do not merge at the national (or even regional) level, Paragraph 4 appears to be creating a “legal fiction” by indicating that a merger of two-thirds of a legislature party can be deemed to be a merger of political parties, even if the original political party does not merge with another party. At least, that is how Indian High Courts interpret the merger exception.
- The term “deemed” has a well-established meaning in statutory interpretation. In law, the word “deemed” can be used to create a legal fiction and give an artificial construction to a word or phrase in a statute. In other cases, it may be used to refer to what is obvious or uncertain. In either of these cases, the legislature’s intent in enacting a deeming provision is paramount.
What was Parliament’s intention in creating a legal fiction under Paragraph 4?
- The merger exception was created to protect instances of principled political groups coming together from disqualification under the anti-defection law, and to strike a balance between the right to dissent and party discipline.
Challenges associated with the anti-defection law
Paragraph 4 – Subject to multiple interpretations: Encourages defection
- In the absence of mergers of original political parties, the deeming fiction could presumably be used to allow legislative party mergers.
- However, reading Paragraph 4 in this way would allow legislature parties to solely merge with another party, effectively facilitating defection.
In smaller legislative assemblies, defection is easier
- Defection is easier in smaller legislative assemblies, where a single member can account for two-thirds of the legislature party’s strength, allowing them to cross the floor without being disqualified.
Create potentially absurd outcomes
- If both subparagraphs of Paragraph 4 are read together, in order for a merger to be valid, the original political party must first merge with another political party, and then two-thirds of the legislature party must support the merger.
- In practice, however, this would produce potentially absurd results.
- Given the current state of politics, stark ideological differences between parties, and deep-seated historical rivalries, a merger of major national or regional parties is unthinkable.
Not addressing the original goal
- Neither of these two interpretations addresses the mischief that the Tenth Schedule was supposed to address: curbing unprincipled defections that jeopardize the foundations of our democracy.
- Individual Members of Legislative Assemblies are still subject to disqualification for crossing the floor, but group defections are not.
Exemptions that have been granted
- The criticism levelled against the exemption granted to political party splits – that it facilitated group defection – applies equally to mergers.
The Way Forward
Revisit, if not delete
- If either reading of Paragraph 4 in its current form produces undesirable results, its deletion from the Tenth Schedule is an option.
- This idea is not new; the Law Commission in 1999 and the National Commission to Review the Workings of the Constitution ((NCRWC) in 2002 both made similar recommendations.
- Until that happens, the Supreme Court should conduct an academic review of the Tenth Schedule in order to guide the future application of the anti-defection law. That would be extremely beneficial to India’s democracy.
Practice Question for Mains
- The Maharashtra political crisis, like many others before it, serves as a sobering reminder of what the Tenth Schedule can and cannot accomplish. Discuss. (15 Marks, 250 Words).