The Supreme Court on Monday flagged “enormous issues” in the anti-defection law while issuing notice to the Centre on Kapil Sibal’s plea challenging the prevailing interpretation of the Tenth Schedule, stressing that the law itself was enacted by Members of Parliament.
The Supreme Court observed that there are enormous issues with the working of the anti-defection law, while noting that the law is itself the creation of legislators and issued notice to the Union government on a petition by Senior Advocate Kapil Sibal challenging the prevailing interpretation of the Tenth Schedule of the Constitution.
A Bench of Justices P.S. Narasimha and Alok Aradhe heard the plea, which questions an interpretation of the anti-defection framework that, according to the petitioner, allows breakaway groups to evade disqualification by taking recourse to the route of merger.
While acknowledging the difficulties that have attended the operation of the Tenth Schedule, the Bench suggested that grievances of this nature would more appropriately be ventilated on the floor of the House.
Locating the source of the problem in the legislature itself, the Court remarked,
“Tenth Schedule is intended to regulate the mechanism between the legislators. We have [upheld] the Tenth Schedule. We have been seeing it. There are enormous issues with Tenth Schedule. But who made it? It’s the making of the MPs,”
Sibal responded that legislators, like courts, are capable of erring, and submitted that the problem may never be resolved precisely because it serves the interests of those in power.
Proceeding to entertain the matter, the Bench issued notice to the Centre, observing,
“There are many issues. We will issue notice,”
Sibal, himself a Member of Parliament, has challenged the interpretation under which splinter groups escape the rigour of the anti-defection law by adopting the mechanism of merger.
The Court asked why he had approached it directly under Article 32 of the Constitution.
Sibal replied that a related matter was already pending before the Court, and pressed the gravity of the consequences that flow from the present position,
“That Goa matter. Listed before a three judge bench. But apart from that this has huge repercussions to our polity. A political party has to take the decision. Kindly have a look at the proposition. Please see the enormity of the problem. The electoral verdict can be changed. A minority can become a majority and majority can become minority,”
The Tenth Schedule of the Constitution, inserted by the Fifty-second Amendment in 1985, contains what is popularly known as the anti-defection law. It was introduced to curb the practice of legislators switching parties after an election in exchange for office or other inducements.
In broad terms, the Schedule provides that a member of a legislature may be disqualified if they voluntarily give up the membership of their party, or if they vote or abstain contrary to the direction of their party whip without prior permission. The power to decide questions of disqualification is vested in the Speaker or Chairman of the House concerned, whose decision is subject to judicial review.
The provision has, however, been the subject of persistent controversy over delays by Speakers in deciding disqualification petitions, over the scope of the voluntarily giving up membership test, and, centrally to Sibal’s petition, over the exception for mergers.
Under the Schedule, a defection is protected from disqualification where an original political party merges with another and at least two-thirds of its legislators agree to the merger. It is this exception that the petitioner contends is being exploited: splinter groups, he argues, dress up what is in substance a defection as a merger, thereby escaping the disqualification the law was designed to impose, and in the process overturning the verdict of the electorate.
Recently, multiple lawmakers from parties such as the Aam Aadmi Party, Trinamool Congress, and Shiv Sena (UBT) have joined the BJP and other political groups. A Congress petition is pending before the Supreme Court, contesting the Bombay High Court’s Goa Bench ruling that a legislative wing may merge with another party without the political party’s consent.
Case Title: Kapil Sibal v. Union of India