Updated: Oct 30, 2022
Image Credits: deviantart.com
The drawbacks of the 10th schedule are again brought up in light by the Maharashtra crisis and tell us how it affects democracy.
The crisis in India’s richest state, Maharashtra, takes its bits and pieces from the 2019 political crisis. The current scenario of Maharashtra’s politics was unexpected but not surprising. The Maharashtra assembly was held in October 2019. Maharashtra was ruled by the BJP- Shiv Sena alliance and it was widely expected that the alliance would return to power and CM Devendra Fadnavis would be back to his 2nd tenure as a CM with his iconic "Mi punha yein”(I will come back again). However, the coins turned as the poll results were declared. The Shiv Sena won 56 seats and the BJP took 105. 44 seats were gained by the Congress, and 54 were won by the Nationalist Congress Party. A majority must hold at least 145 seats to establish the government.
Even though the BJP- Shiv Sena alliance did fit into the winning criteria, Shiv Sena put the alliance on hold, demanding an equal share of power with the BJP. They claimed that the BJP had assured them of an equal share of power. The Thackeray-led party demanded that the CM post be shared for a 2.5-year term by the BJP and Shiv Sena. The BJP denied making any such promises and eventually, the alliance ended. The political crisis of 2019 was primarily a game of power, as obvious as that may be. When it came to power, ideologies were not taken into account. The Shiv Sena broke ties with a party that shared their political ideologies and allied with those with contrary viewpoints. Following this, President’s rule was imposed for a day and Fadnavis formed a government with Ajit Pawar as deputy CM but resigned on the third day. Finally, the government was formed by the Shiv Sena- NCP- INC alliance, nomenclature as the Maha Vikas Aghadi. Uddhav Thackeray, who ironically had never held any constitutional post in his political career, became the Chief Minister of Maharashtra, along with Ajit Pawar as the deputy Chief Minister.
The alliance "successfully" ran the state until recently, when one of Shiv Sena's members, Eknath Shinde, along with some MLAs, separated and rebelled, according to Shiv Sena leaders. Eknath Shinde reportedly became "unreachable" after the legislative council’s elections. Eknath Shinde and some countable MLAs left Mumbai on June 22 and went to Surat, Gujarat, where they were found meeting BJP leaders. Later, they flew to Guwahati, Assam. Both of them being BJP-ruled states, cleared the fog around Shinde’s intentions. “Right now we have 46 MLAs with us, including 6-7 Independent MLAs. This number will rise in the time to come. As of now we have neither received any proposal from BJP nor are we holding any talks with them.”Claimed Shinde. There could be probable reasons behind the rebellion that a Shiv Sainik as old as Shinde headed. Ideology seems to be on the top since Eknath was seen taking a dig at Thackeray for compromising the ideology for political gains. He also tweeted that he’d never compromise the ideology and would always walk on Balasaheb’s ideals. Shinde however, didn’t seem to be happy with the alliance. His access to Thackeray’s residence was also restricted ever since Thackeray came into power which made him feel excluded or sidelined, and that might be one of the reasons he was left annoyed resulting in this rebellion. On the advice of the Shiv Sena leadership, the deputy speaker of the Maharashtra Assembly suspended 16 legislators. The Supreme Court is now deliberating on the status of these MLAs. Even if they represent more than two-thirds of the party's total MLAs, the anti-defection rule makes it challenging for a group of renegade MLAs to create an independent block. Therefore, Shinde's camp would only have had two choices: join up with the BJP or a smaller party allied with the NDA, or assert legally that it is the "real Shiv Sena."
Image Credits: TheIndianExpress
STORY OF MERGER AND MAJORITY
The Maha Vikas Aghadi administration in Maharashtra faced difficulty following Eknath Shinde's uprising, which brought to light the Tenth Schedule of the Indian Constitution, which addresses the disqualification of legislators for defection.
Paragraph 4 of the 10th schedule describes two conditions to escape from disqualification. The condition to dodge defection is that the original party should merge with another political party and the merger will be deemed valid only if at least 2/3rd members of the legislative party have agreed to it.“37” being the ⅔ of the Shiv Shena’s total elected MLAs. It is widely believed that the Shinde breakaway group can avoid disqualification under the anti-defection law provided so that they can secure the backing of at least 2/3 of Shiv Sena MLAs. This assumption, however, is without legal support because the tenth schedule no longer includes a "split" within a party as an exception. According to Paragraph 4 of the tenth schedule, the only exception to disqualification is joining forces with another party, and even then, only with support from at least two-thirds of MLAs.
In a recent interview with Scroll.in, PDT Acharya, the former secretary-general of the Lok Sabha, clarified this: He stated two conditions for the MLAs to join the Bharatiya Janata Party
1. The Shiv Sena, the original party, must merge with the BJP. 2. The merger is approved by two-thirds of the MLAs. These 37 people are unable to work together as a unit. They must combine forces with the BJP. They are unaware of it.
ANTI-DEFECTION AND ITS HISTORY
We saw the role of defection in making and unmaking the governments for the first time in the general elections of 1967. A phrase that became very popular in that period was “aya ram, Gaya ram” which means, Ram came and Ram went. It was because Gaya Lal, a legislator from Haryana changed his party thrice in a fortnight. In the years after the 1967 and 1971 general elections, over half of the 4,000 MPs elected to the central and state legislative bodies defected. Thus, the 52nd constitution amendment act on anti-defection was passed and the 10th Schedule was added to the Indian Constitution in 1985 to combat the scourge of political defections. Later in 2003 through the 91st amendment, several changes were made, one-third criteria for the merger was changed to two-thirds and also the “split” in the legislative party was an exception before which got deleted in this amendment. More provisions of the law will be discussed in the upcoming article.
HOW LEGISLATORS DODGE THE LAW
For a very long time, floor-crossing incidents went unreported and unpunished. In the 2019 judgment (Girish Chodankar v. The Speaker, Goa State Legislative), the Goa bench of the Bombay court ruled that the merger of the original party is "deemed" to be the merger of the two-thirds of the Legislative Assembly members. Similar circumstances were observed in Meghalaya, where the speaker refused to officially qualify 12 of the 17 Congress MLAs who switched to the Trinamool Congress because he recognised it as a "merger." Unfortunately, these rulings confuse the law unnecessarily and do not reflect the true application of the law.
The word “deemed merger” in paragraph 4 suggests that a merger can take place only when an original party (original party here means the political party to which a member belongs) merges with another political party, and at least two-thirds of the members of the legislature party have agreed to this merger. The phrase "merger," according to politicians speaking for themselves, refers to the union of two-thirds of lawmakers. They have persuaded themselves, ignoring the necessity of merging the original party as it is not possible for them. The convoluted nature of paragraph 4 leads to dispersing its several meanings. In most of the cases, there is no actual merger of the original party as seen in the above-mentioned Goa assembly case. This paragraph has created a “legal fiction”, says Mayuri Gupta and Ritwika Sharma.
According to them the word “deemed” may be used in law to create a legal fiction, and give an artificial construction to a word or a phrase used in a statue. judgments like these, unfortunately, do not reflect the correct law and needlessly complicate it.
These days, poaching the major opposition parties without respect to anti-defection laws is the most frequent scenario. Speakers decide not to respond when the offended party applies for disqualification, therefore formalising the defection. For instance in 2017 in Manipur, the speaker chose not to act for over two years on the disqualification petitions.
The speaker of the Karnataka assembly in 2010 disqualified a group of BJP rebel MLAs because of their meeting with the governor against the chief minister. The speaker disqualified them on the ground that their action amounted to voluntarily giving up their membership. However, the Supreme Court acted upon this and set aside their disqualification. The Speaker draws this power from paragraph 6 of the 10th schedule which says “any question subject to disqualification, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final”. This ultimate authority of the speaker or chairman is now susceptible to judicial review thanks to the Supreme Court's precedent-setting decision in Kihoto Hollohan v. Zachillhu, which aims to prevent any misuse of this constitutionally granted authority.
HARM TO THE SPIRIT OF DEMOCRACY
The Anti-Defection law has been misused by the legislators for a long time and the flaws in the law will keep harming the spirit of democracy until some serious corrections are made to it.
The paragraph second of the tenth schedule enslaves members of their party line, prevents them from representing their constituency and the people and violates their freedom of expression. Because the law allows political parties to disqualify legislators for voting against the party line inside the legislature and for anti-party conduct outside it.
Unnecessary defections make governments unstable, frequently triggering midterm elections, wasting public funds, and eroding public confidence in democracy.
Legislative horse dealing has been encouraged by the legislation rather than being curbed, which is obviously against the spirit of a democratic system. Redefining the merger clause, transferring the adjudicatory jurisdiction from the Speaker to another trustworthy authority, or even distributing the legislation entirely are some of the major changes which are suggested. The public anticipates better adherence to the law from the legislators.
BY ARJUN SINGH