In the wake of the unfolding political crisis in Maharashtra, some remarks made by the Supreme Court regarding the emerging trend of poaching legislators and engineering rebellion to destabilize elected governments are gaining prominence.
The Court’s remarks came in the Karnataka and Madhya Pradesh-related cases, which saw scenes of a group of MPs within the ruling coalition announcing a sudden rebellion, followed by the rebel MPs remaining incommunicado and confining themselves to locations (often resorts) in other states. and the government collapses after falling short of the required numbers. Similar scenes are also unfolding in Maharashtra, with rebel leader Eknath Shinde and his followers untraceable before being found in Gujarat. In the wee hours of today, the rebel MPs were flown to Assam.
Shinde told the media he had the support of 40 MPs. If the claim is true, the rebels will be able to escape the risk of disqualification under the Tenth Schedule of the Constitution. Because a merger or split with at least 2/3 of the members of the Legislative Party is not considered a “defection” within the meaning of Article 4 of the Tenth Schedule (the Shiv Sena has 55 members and the figure of 2/3 will be 37).
MPs can also exercise the option to resign, and the Speaker has no discretion to reject the resignation. As per the Supreme Court ruling in the Karnataka MPs case (2019), the Speaker cannot investigate the reason for the resignation and cannot dismiss the same saying that it is political pressure. In this case (Shrimant Balasaheb Patil v Honorable Speaker of Karnataka Legislative Assembly), the Court held that the President can only consider whether the resignation was “genuine” and “voluntary”. “Genuine” means if the resignation letter is genuine and not forged. The Court further held that “when a member resigns under political pressure, he always does so voluntarily”.
Court expresses concern over ‘horse trade’; Calls to strengthen the 10th schedule
In the same judgment, expressing concern about the tendency to “bargain” which deprives citizens of stable governments, the Court called for the strengthening of the Tenth Schedule.
The judgment written by Judge NV Ramana said:
“…political parties engage in horse trading and corrupt practices due to which citizens are denied stable governments. Under these circumstances, Parliament is necessary to reconsider the strengthening of certain aspects of the Tenth Annex so that such undemocratic practices are discouraged”.
Legislation needed to curb poaching lawmakers: SC in MP case
In the 2020 Madhya Pradesh Political Crisis Case (Shivraj Singh Chouhan v Speaker, Madhya Pradesh Legislative Assembly), the Supreme Court made stronger observations against the lawmakers’ poaching streak.
“The spectacle of rival political parties taking their political herd to safe destinations does little credit to the state of our democratic politics. It is an unfortunate reflection of the trust that political parties have in their own constituents and a reflection of what happens in the real world of politics,” the judgment written by Judge DY Chandrachud said.
Calling these practices of poaching, political bargaining and haggling “blooming evils”, Justice D.Y. additionally observed.
“An underlying assumption of the anti-defection program outlined in the Tenth Schedule of the Constitution is that the political party is the defined political unit that the Constitution recognizes. Where we increasingly see a breakdown in composition and political party allegiances due to the private attractions offered to MPs as opposed to public policy considerations, the law may need to evolve to deal with these emerging ills,” said the judgement.
In the Kihoto Hollohan case, the Supreme Court said the Tenth Schedule is intended to deal with “unprincipled defection which is a political and social evil.” However, there are some loopholes that allow failing legislators to get away with it. One is the resignation route which is adopted to escape disqualification. While the Supreme Court has ruled in the Karnataka MPs case that resignation will not erase the effect of disqualification already incurred, there is no recourse against lawmakers who choose to resign solely because of a lucrative offer or threat from another party. The Court’s reasoning that a resignation, even because of such political pressure, should be considered voluntary is problematic. This interpretation given to “volunteer” may require revision.
Another shortcoming is that the law allows a legislator disqualified for defection to contest elections again even during the term of the current assembly. In the Karnataka MPs case, the Supreme Court ruled that the president had no power to disqualify a defecting member until the end of the assembly’s term. This can lead to a mockery of democracy, as defected members may return to the same assembly on a different political ticket. This gives a bounty to political opportunists and defectors.
If defection is a “social and political evil”, then there must be disqualification for a number of years as prescribed by the Representation of the Peoples Act for corrupt electoral practices or conviction for the specified offences.